Appendices

Appendix 1: How are occupational cancers compensated in Ontario?

Legislative and policy framework

Four types of policy instruments form the decision-making hierarchy for the compensation of occupational cancer claims in Ontario (Figure 9).

Governing legislation: The WSIB derives its authority to compensate workers for occupational diseases from Section 15 of the Workplace Safety and Insurance Act, 1997 (the "Act"). Under Section 15, a worker is eligible to receive compensation for an occupational disease, including cancer, provided the following medical and legal criteria are met:

1. the worker must have a clinical diagnosis of an illness or a disease
2. the clinical diagnosis must be made by a recognized health professional^{footnote 47[47]}
3. the worker must "suffer from" and be impaired by the illness or disease, and
4. the disease must have been "due to the nature of one or more employments in which the worker was engaged"

If all of these criteria are met, the worker is entitled to compensation under the insurance plan "as if the disease were a personal injury by accident and as if the impairment were the happening of the accident"^{footnote 48[48]}

Section 2(1) of the Act defines "occupational disease" to include the following:

1. a disease resulting from exposure to a substance relating to a particular process, trade or occupation in an industry
2. a disease peculiar to or characteristic of a particular industrial process, trade or occupation
3. a medical condition that in the opinion of the Board requires a worker to be removed either temporarily or permanently from exposure to a substance because the condition may be a precursor to an occupational disease
4. a disease mentioned in Schedule 3 or 4^{footnote 49[49]}, or
5. a disease prescribed under clause 15.1(8)(d)^{footnote 50[50]}

The Act also provides legislative presumptions^{footnote 51[51]} regarding the work-relatedness of the occupational diseases listed in Schedules 3 and 4 of Ontario Regulation 175/98 (O. Reg. 175/98). Section 15(3) provides a rebuttable presumption for the work-relatedness of the diseases listed in Schedule 3. Under this presumption, if a worker develops a disease listed in Schedule 3 and was employed in the process described opposite the disease before the date of disablement, it is presumed the disease was caused by the nature of the worker's employment, unless the contrary is proved. Section 15(4) provides a non-rebuttable presumption for the work-relatedness of the diseases listed in Schedule 4. Under this presumption, if a worker develops a disease listed in Schedule 4 and was employed in the process described opposite the disease before the date of disablement, the disease is deemed to have occurred due to the nature of the worker's employment.

Regulations: Regulations have the force of law but are subordinate to the governing legislation (70). As a result, they must be authorized by specific provisions in the Act. Section 2(1) of the Act authorizes the WSIB to recognize the occupational diseases listed in Schedules 3 and 4 of O. Reg. 175/98. Under these schedules, three cancers are afforded a presumption of work-relatedness: epitheliomatous (skin) cancer, primary cancer of the nasal cavities or of the paranasal sinuses, and mesothelioma of the pleura or peritoneum (Table 8) ^{footnote 52[52]}. The presumptions for skin cancer and for nasal cancer in the nickel producing industry are rebuttable. The presumptions for mesothelioma and for nasal cancer in two sintering plants at Inco Limited are non-rebuttable.

Operational policies: The meaning and the application of the Act (and its supporting regulations) are clarified in the Operational Policy Manual (OPM). Policies do not have the force of law (like the Act or the regulations); however, they are binding on the Workplace Safety and Insurance Appeals Tribunal (WSIAT)^{footnote 53[53]} (70). Three chapters of the OPM that provide guidance to decision-makers for determining entitlement are relevant to this review. The WSIB’s occupational cancer policies considered in this review are listed in Appendix 2.

• Chapter 11: Decision Making includes 11 general decision-making policies that are applicable to all claims (e.g., determining the date of injury, the merits and justice of the claim, and the benefit of the doubt).
• Chapter 16: Long Term Exposures includes 28 policies and is divided into two sections. The first section includes 9 policies on disablements, none of which focus on occupational cancers. The second section includes 19 policies under the heading of "occupational diseases". Of these, 17 focus on occupational cancers.
• Chapter 23: Occupational Diseases includes 5 policies and is divided into two sections (acute vs. chronic exposures). The section on acute exposures includes 2 infectious disease policies, while the section on chronic exposures includes 3 occupational cancer policies.

Occupational cancers account for 20 of the 33 occupational disease policies included in Chapters 16 and 23.

Administrative practice documents: Administrative practice documents (APDs) provide guidance to assist decision-makers in understanding the interpretation and practical application of operational policies. APDs – which fall under the categories of worker claims, employer accounts, and adjudicative advice documents – do not have the force of law or policy and, as a result, are not binding on the WSIAT. Of the 21 APDs currently available online, the only one relevant to this review is Weighing of Medical Evidence (May 2017).

General principles governing compensation of occupational cancers in Ontario

Like all workers' compensation systems in Canada, the system in Ontario is founded on the Meredith Principles. Because it is a no-fault inquiry system, neither the worker nor the employer is required to prove their case. Responsibility for gathering the relevant information, weighing the evidence, and making decisions on entitlement rests with the WSIB, the independent public agency with the legislative mandate to administer and interpret the Act. In determining entitlement to compensation for occupational cancers specifically, and for occupational diseases more generally, the key adjudicative question to be resolved is that of causation. Thus, in adjudicating a claim, decision-makers seek to determine whether the disease is due to the nature of the worker's employment (i.e., is the disease work-related?).

The Act and the policies are silent on the legal test for causation in determining entitlement for occupational diseases. However, as noted in a number of WSIAT decisions, the proper legal test for causation for these claims is "whether, on a balance of probabilities, a worker's duties at work significantly contributed to the onset of an injury or medical condition" [emphasis added] (71). This approach is influenced by the Supreme Court of Canada's position on causation in the context of tort cases (19).

The Tribunal (like the courts) accepts that a contributing cause does not need to be the major cause of an injury or disease in order to be a "significant contributing" cause or to have made a "material contribution" to the development of an injury/disease. But employment will not be shown to have been a "significant contributing" cause of an injury/disease if the injury/disease would have occurred when it did even in the absence of the employment.

2003 ONWSIAT 2153, Decision 600/97

The following three general principles govern how causation is evaluated and entitlement is determined:

1. Employment does not have to be the predominant or primary cause. The exposure has to contribute in a significant or material way to the development of the disease, but there is no requirement in law or policy that the employment or the exposure be the only cause. Decision-makers are expected to apply the de minimus test (i.e., did the worker have a more than trifling amount of exposure?) to determine if the exposure was of causative significance.
2. Absolute certainty is not required. Because the standard of proof is the balance of probabilities, absolute certainty is not required to evaluate causation and to determine entitlement. Decision-makers must weigh the evidence and be satisfied that it is more likely than not that the work exposure was a significant contributing factor in the development of the worker's cancer.
3. The worker is afforded the benefit of the doubt. Where the evidence for and against causation is evenly weighted, the Act requires that the benefit of the doubt be given to the claimant and the issue be resolved in their favour^{footnote 54[54]}

Methods of adjudicating occupational cancer claims in Ontario

Occupational cancer claims are handled by the Occupational Disease and Survivor Benefits Program, which includes teams of specially trained and experienced staff (e.g., senior adjudicators, physicians, an occupational hygienist, and nurse case managers). These teams adjudicate the claims using the following four methods:

1. by reference to presumptions provided in Schedules 3 or 4 of O. Reg. 175/98
2. through the application of sections 15.1 and 15.2 of the Act^{footnote 55[55]}
3. by application of operational policies in Chapters 16 and 23 of the OPM
4. on a case-by-case basis

When determining entitlement to a disease claim, a decision-maker considers the worker's clinical condition and exposure at work, the up-to-date clinical and scientific information, any pertinent non-occupational factors, and all of the relevant policy instruments.

Adjudication under the presumptions: In claims with a diagnosis of a cancer recognized by presumption, entitlement is determined by considering whether the worker's exposure meets the entitlement criteria set out in the second column of the appropriate schedule. If the presumptive criteria are not met, entitlement is then considered under any relevant policy or on a case-by-case basis. A histopathological confirmation of diagnosis is the first step in determining entitlement for these claims. Once the diagnosis is confirmed, entitlement is first considered under Schedule 4. The next step is to determine whether the worker meets the employment criteria in column 2 of Schedule 4. If those criteria are met, the claim is allowed. If those criteria are not met, entitlement is considered under the rebuttable presumption of Schedule 3. If the employment criteria and the latency requirements^{footnote 56[56]} are met, the claim is allowed. For example if it is determined that the cancer is not due to the nature of employment in concentrating, smelting or refining in the nickel producing industry, the adjudicator then considers the claim on a case-by-case basis to examine the worker's full job history and determine if causation is due to another well-established occupational cause of nasal cancer (e.g., woodworking in the furniture and cabinet making industry).

Application of the policies: In claims where the presumptions do not apply, entitlement is determined by applying the guidelines set out in the policies on general decision making in Chapter 11, as well as the policies on long-term exposure and chronic exposures in Chapters 16 and 23, respectively, of the OPM.

Case-by-case adjudication: Adjudication of diseases that are not listed in the published policies or schedules may proceed under either the occupational disease or injury by accident provisions of the Act. This also applies when a worker has a disease listed in Schedule 3 or 4 but was not employed in the related process specified in the schedule. Case-by-case adjudication in these claims is based on the facts of the claim and an assessment of evidence of causal connection between occupational exposure and the disease.

Steps in the adjudicative process

Occupational disease claims are adjudicated in a 7-step process: initial claim assessment, information gathering, analysis of evidence, determination of initial entitlement, determination of benefits, communication of the decision, and continuing management of the claim (18). The key step in all occupational disease claims – and the one that is most relevant to this review – is information gathering. In this step, regardless of the method of adjudication, the decision-maker gathers, analyzes and weighs the following information: employment history, detailed exposure history, medical history (e.g., diagnostic reports and medical opinions), current scientific evidence on occupational exposures and diseases, and relevant personal information (18). As appropriate, the decision-makers will consult internal and external resources ^{footnote 57[57]}to resolve any questions they have on causation and work-relatedness.

Appendix 2: WSIB occupational cancer policies considered in this review

Adjudication principles:

• Adjudicative Process (11-01-01)
• Decision-Making (11-01-02)
• Merits and Justice (11-01-03)
• Benefit of Doubt (11-01-13)

Long term exposures – occupational diseases:

• Nasal Cancer in the Nickel Producing Industry (16-02-01)
• Lung Cancer in the Nickel Producing Industry (16-02-02)
• Lung Cancer-Foundry Aerosol Exposure (DOFASCO) (16-02-06)
• Lung Cancer - Gold Miners (16-02-07)
• Lung Cancer-Arsenic Exposure (Deloro Smelting and Refining) (16-02-08)
• Lung Cancer-Coke Oven Emissions Exposure (16-02-09)
• Laryngeal Cancer-Asbestos/Nickel Exposure (16-02-10)
• Gastro-Intestinal Cancer-Asbestos Exposure (16-02-11)
• Mesothelioma of the Pleura and Peritoneum (16-02-12)
• Lung Cancer - Asbestos Exposure (16-02-13)

Chronic exposures:

• Laryngeal Cancer and Asbestos Exposure (23-02-02)
• Lung Cancer Among Workers in the Uranium Mining Industry (23-02-03)

Appendix 3: Background on British Columbia's Bladder Cancer Policy

Policy 30.10 of the Rehabilitation Services and Claims Manual sets out guidelines for adjudicating claims for bladder cancer from aluminum smelter workers which do not meet the descriptions contained in BC's presumptive schedule. This policy, which was first adopted in 2000 and subsequently updated in 2009, requires that these claims be adjudicated on the basis of cumulative (or total) exposure to benzo-a-pyrene (BaP), a constituent of coal tar pitch volatiles. The two primary issues faced during the development of the policy were: how should exposure be assessed and what level of exposure should be required for entitlement? In its consultation paper, WorkSafeBC acknowledged that while science could inform the first question, it could only partially inform the second. To answer the first question, it utilized research studies conducted in Quebec and subsequently commissioned a research study in British Columbia. The findings of the BC study were used to update the policy guidelines in 2009.

To determine the level of exposure required for entitlement, WorkSafeBC was faced with considering two questions: at what level of risk is an exposure causally significant and should scientific uncertainties be taken into account? On the issue of causal significance, BC's legislation and policies on occupational disease require that the workplace exposures be a significant contributing factor. Unfortunately, like many jurisdictions, they are silent on what that means in terms of the minimum level of risk. In developing its policy options, WorkSafeBC was aware that, unlike lab-based research, epidemiology is not an exact science and often there is uncertainty associated with the exposure estimates. This uncertainty can have an impact on the dose-response relationship.

In its consultation paper, WorkSafeBC acknowledged that these two questions were social policy questions as opposed to scientific questions and as a result, science could only help inform the policy choices. Therefore, affected stakeholders were asked to provide input on (1) whether the minimum level of risk should be set at a relative risk of 2 or between 1 and 2; and, (2) whether the minimum level of risk should be determined using the point estimates or the 95% upper confidence limit.

The final policy incorporates the research evidence on BaP being a better predictor of risk, it reflects the input received from affected stakeholders on the question of the minimum threshold required for entitlement and it also explicitly addresses the synergistic relationship between smoking and exposure to benzo-a-pyrene. If the worker's relative risk calculated in accordance with the principles set out in the policy is 2 or greater, the worker's smoking history does not change the conclusion that the bladder cancer was due to the employment.

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