WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100199
OBJECTION BY: Employer
PARTICIPANTS: Employer, Worker, Worker’s Representative
HEARING: N/A
ISSUE
The employer objects to the adjudicator decisions of November 26, 2009 and July 30, 2010, allowing loss of earnings (LOE) benefits for the interval from March 18, 2009 until December 22, 2009.
HOW THE ISSUE ARISES
A Workplace Safety and Insurance Board (WSIB) claim was established for this retired fire fighter who first received medical attention for symptoms related to kidney cancer on March 17, 2009. It was confirmed that the worker was employed as a full time fire fighter for 35 years (from 1958 to 1993) before being diagnosed with this condition. The worker retired in 1993.
Entitlement was accepted for loss of earnings (LOE) benefits from March 18, 2009, following the date the worker was first diagnosed with symptoms which were eventually diagnosed as being work related kidney cancer, until December 22, 2009.
The facts of the claim history are not in dispute. The dispute is surrounding the fact that LOE benefits were paid from March 18, 2009 until December 22, 209, noting that the worker had retired from the workforce in 1993.
The adjudicator determined the worker was entitled to full LOE benefits for the interval from March 18, 2009 until December 22, 2009, as per section 43(1) of the Workplace Safety and Insurance Act (the Act), based on the medical evidence of disability rather than actual loss of earnings.
It is the employer’s position that no LOE benefits should be paid in this claim file as the worker did not suffer a loss of earnings as a result of his injury since he was already retired for reasons completely unrelated to the compensable disease. The employer submits that as a result of recent changes to the WSIB practice of determining entitlement to LOE benefits where there are no earnings on the date of injury, they ask that entitlement to LOE benefits be denied in this claim.
The employer submitted a letter dated November 3, 2010 requesting that the adjudicator’s decision to allow benefits be overturned, that a finding be made that there is no entitlement for LOE benefits, and that the employer’s account is credited accordingly, as the worker had retired from the workforce in 1993.
The employer’s objection is the issue before the Appeals Resolution Officer (ARO).
AUTHORITY
Workplace Safety and Insurance Act (WSIA)
Section 2(1)
Section 15
Section 43(1)
Section 119
Schedule 4 of the WSIA
Bill 221 – An Act to amend the Workplace Safety and Insurance Act, 1997 with respect to fire fighters and certain related occupations.
Operational Policies:
11-01-02 – Decision Making
11-01-03 – Merits and Justice
18-03-02 – Payment of LOE benefits
18-03-04 – Older Workers and LOE benefits
RESOLUTION METHOD AND PROCESS
The employer submitted a 60-Day Decision Option form received November 4, 2010. By completing this form, the employer is aware the appeals resolution officer will provide a final decision of the WSIB based on the information on record and any additional information submitted with the Objection Form.
A Participant Form was received from the worker representative and therefore they were contacted and advised of the resolution method for this appeal.
ASSESSMENT OF THE EVIDENCE
In arriving at a decision in this claim, I have had regard for the record, the applicable law and policy, as well as the interested parties’ view on the issue.
In considering a worker’s entitlement to WSIB benefits, a decision maker is mandated to have regard for WSIB legislation and related policy.
As noted above, the facts of the claim history are not in dispute. Entitlement for kidney cancer was accepted and entitlement granted for LOE from March 18, 2009 to December 22, 2009.
Amendments to WSIA have provided for new regulations respecting firefighters, prescribing diseases that are presumed to be an occupational disease that occurs due to the nature of the worker’s employment as a firefighter, unless the contrary is shown (s. 15.1(4) Ontario Regulation 253/07, s.4 provides that for the purposes of s.15.1 (4) of the Act, the following eight types of cancer are prescribed diseases:
primary-site brain cancer
primary-site colorectal cancer
primary-site kidney cancer
primary acute myeloid leukaemia, primary chronic lymphocytic leukaemia or primary acute lymphocytic leukaemia.
primary-site ureter cancer
primary-site kidney cancer
primary non-Hodgkin’s lymphoma
primary-site esophegeal cancer
Due to the nature of his employment as a firefighter, it was determined that the worker’s primary kidney cancer was a compensable injury/disease (an occupational disease). The WSIB’s policy on Kidney Cancer among Firefighters provides that the nature and length of this worker’s employment (that is, more than twenty years as a full-time urban firefighter) is “highly persuasive evidence” that the worker’s kidney cancer was due to the nature of his employment.
Thus, noting that the worker had the type of primary cancer that can be recognized as an occupational disease under the WSIB’s policy on Kidney Cancer among Firefighters, allowance of this claim was granted in November 2009.
Since the primary cancer was one of those listed above, there is WSIB policy or statutory provision that presumes it to have arisen from the worker’s employment as a firefighter. Thus, to establish entitlement, the evidence must show that the worker’s occupational exposure was a significant contributing factor in the development of his cancer.
In order for allowance to be granted in this claim it must be established that it is more probable than not that the circumstances of the worker’s employment and exposure history significantly contributed to the development of the medical condition being claimed. On May 4, 2007 the Government of Ontario passed a legislation amending the Act. These regulations specify certain disease diagnoses that can be presumed to arise out of employment as a firefighter and the conditions that are required for this presumption to apply. As such I agree with the Adjudicator’s decision concluding that the evidence available does support that the worker’s career in fire services was a significant contributor to the development of the cancer that the worker suffered.
The WSIB policy on Cancer among Firefighters applies to a firefighter who has been medically confirmed to have one of the primary cancers (as noted above). If it is confirmed to be one of the primary cancers (as previously listed), the policy then finds employment of 20 years or longer as a full-time urban firefighter to be “highly persuasive evidence that a worker’s cancer is due to the nature of the worker’ employment.”
WSIB Operational Policy Manual Document 18-03-04 states in part:
A worker who has a loss of earnings as a result of the injury is entitled to loss of earnings (LOE) benefits beginning when the loss of earnings begins. If the worker is 63 years of age or older on the date of injury, LOE benefits continue until the earliest of
the day the loss of earnings ends, or
the day on which the worker is no longer impaired as a result of the injury, or
2 years after the date of injury.
Workers who are 63 years of age or older on the day of injury are only entitled to LOE benefits for up to 2 years from the date of injury. The WSIB cannot consider ongoing LOE benefit entitlement, or LOE benefit entitlement for a recurrence after the 2-year period.
In an occupational disease claim, when a worker’s illness or disease is a result of a specific chance event, the date of injury is the actual date of the incident. An example would be where a worker suffers traumatic hearing loss from an explosion. However, most occupational disease claims do not result from a single event occurring at a specific time. As work-related diseases generally result from the cumulative effect of occupational exposure spanning many months or years, the date of injury is not based on when the exposure to the causal agent(s) occurred, but rather on when the illness or disease first becomes apparent. An example of this type of occupational disease claim is where a worker develops occupational cancer from continuous exposure to certain chemicals at work. In these cases, the decision-maker determines the date of injury based on either the date initial medical attention is sought for symptoms consistent with the diagnosis, or if medical continuity of compatible symptoms is unclear, the date a medical specialist conducts a full clinical assessment and determines the diagnosis.
It is the employer’s position that since the worker had been retired from employment prior to being diagnosed with kidney cancer; no LOE benefits should be paid. Furthermore, it is the employer’s argument that since the retirement was not as a result of and completely unrelated to any occupational exposure claim, no LOE benefits should be paid. The employer adds that the fact that the WSIB has changed its practice for determining entitlement to LOE benefits where there are no earnings on the date of injury, they request that an overpayment be recreated and the employer’s cost record be corrected, with interest paid on the difference. The employer is therefore requesting the adjudicator’s decision be overturned and the LOE benefits paid from March 18, 2009 until December 22, 2009 be rescinded.
The adjudicator determined that although the worker had already retired from the workforce, the kidney cancer and ensuing surgery were found to be directly resulting from the worker’s employment as a firefighter. Hence LOE benefits were allowed based on medical evidence of disability rather than on actual LOE. Since it was medically reasonable to accept that the worker would have been disabled for this condition, LOE benefits were paid accordingly.
Workplace Safety and Insurance Act (WSIA) section 119. (1) states:
The Board shall make its decision based upon the merits and justice of a case and it is not bound by legal precedent.
WSIB Policy 11-01-03 states in part:
By applying relevant legislative and policy provisions to similar situations, decision-makers ensure that
similar cases are adjudicated in a similar manner
each participant in the system is treated fairly, and
the decision-making process is consistent and reliable.
The WSIB develops policies when the Act is silent or ambiguous, or when it permits a number of possible interpretations. Within each policy, the WSIB creates a framework that directs the way decision-makers should act when certain facts and circumstances come before them. If such situations arise, the relevant policies must be followed unless there are exceptional circumstances as described below.
There may be rare cases where the application of a relevant policy would lead to an absurd or unfair result that the WSIB never intended. Therefore, a decision-maker may depart from a policy if it can be shown that the case has exceptional circumstances that justify doing so.
In making decisions pertaining to the application of any policy, the WSIB decision maker carefully considers the implications relating to fairness to all workplace parties, in addition to the financial implications for the WSIB system. I note that some recent WSIAT (Workplace Safety and Insurance Appeals Tribunal) decisions have allowed employer’s objections and denied benefits paid to retired workers, under similar circumstances. However WSIAT decisions do not set Board policy or practice. Although their interpretation may raise interesting points that require further review by the Policy Branch, they are not precedent setting.
The WSIB’s operational practice from January 1, 1998 until December 6, 2009, where the worker was not earning a wage on the date of injury, was to establish net average earnings (NAE) using the average wage of a person employed in the occupation or trade in which the worker’s disease was contracted. LOE benefits were then paid to these workers with no regard for their earnings status at the time of injury.
Several WSIAT decisions have reversed WSIB decisions and held that workers who were not earning at the time of injury were not entitled to receive LOE benefits. The Benefits Policy Branch (BPB) reviewed the WSIAT decisions and conducted a review of current entitlement practices in occupational disease claims registered on or after January 1, 1998. It was concluded that the approach taken by WSIAT is more consistent with s.43 of the Workplace Safety and Insurance Act. As a result of this review, the WSIB has changed its practice for determining entitlement to LOE benefits in cases where there are no earnings on the date of injury.
The decision to change practice is effective December 7, 2009 prospectively to all new entitlement decisions for LOE benefits, for accidents on or after January 1, 1998. Workers who are not working and not earning on the date of injury will not receive LOE benefits.
The WSIB position is that this change will not be used to recalculate or terminate LOE benefits already in effect on December 7, 2009.
Accordingly I find that the adjudicator’s decision to allow LOE benefits from March 18, 2009 until December 22, 2009, as confirmed in the adjudicator’s decision of November 26, 2009 and July 30, 2010, was appropriate and in accordance with the practice at that time.
CONCLUSION
I conclude that the payment of LOE benefits for the period March 18, 2009 until December 22, 2009 is appropriate and confirmed, as per the practice in effect at the time of the decision.
The employer’s objection is therefore denied.
DATED December 16, 2010
S. Bennett
Appeals Resolution Officer
Appeals Branch