APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER:
20240043
OBJECTING PARTY:
WORKER
RESPONDENT:
EMPLOYER
HEARING:
HEARING IN WRITING
HEARD by:
Kelly Gordon, appeals resolution officer
MAY 22, 2024
ISSUE
The worker is objecting to the Occupational Disease (OD) Adjudicator’s decision dated October 13, 2023. Specifically, the OD Adjudicator’s decision that denied entitlement to colorectal cancer.
BACKGROUND
This claim was established upon receipt of the Employer’s Report of Injury, Form 7 dated August 10, 2023. On this form, the employer states the worker was first diagnosed with colorectal cancer in September 2021, and on August 3, 2023, the worker reported that their cancer returned, and that they were undergoing treatment. The worker advised the employer that they relate their cancer to their occupational exposures while working as a volunteer firefighter from 1987 to 2016, and again from 2017 to 2023.
The OD Adjudicator contacted the worker on August 14, 2023, and obtained a statement regarding the worker’s employment history, their diagnosis, and their medical treatment. The worker advised they were diagnosed with colon cancer in September 2021, and in October 2021, they underwent surgery to remove the tumour. However, in 2023, the worker’s colon cancer metastases to their liver, and on June 30, 2023, the worker began chemotherapy to reduce the tumour.
In the decision dated October 13, 2023, the OD Adjudicator refers to Policy 23-02-01, Cancers in Firefighters and Fire Investigators, and Policy 16-02-11, Gastro-Intestinal Cancer-Asbestos Exposure. After considering the entitlement criteria as outlined in these policies, the OD Adjudicator determined the entitlement criteria was not met in this claim. The OD Adjudicator also considered entitlement based on the merits of the claim, but determined the worker’s asbestos exposure was not continuous and repetitive in nature, nor was the worker’s asbestos exposure a major component of the worker’s occupational activity. Therefore, the OD Adjudicator denied entitlement to the worker’s diagnosed colorectal cancer.
The worker submitted the Appeal Readiness Form (ARF) dated January 2, 2024, confirming their objection to the denial of entitlement to colorectal cancer.
The worker’s objection to the denial of colorectal cancer forms the basis of this appeal.
AUTHORITY
Section 2(1) and 15 and Regulations 3 and 4 of the Workplace Safety and Insurance Act, 1997 (the Act)
Operational Policy Manual
Published
11-01-01 Adjudicative Process
November 3, 2008
23-02-01 Cancers in Firefighters and Fire Investigators
16-02-11 Gastro-Intestinal Cancer-Asbestos Exposure
11-01-03 Merits and Justice
July 20, 2023
October 12, 2004
October 12, 2004
ANALYSIS
For the reasons that follow, I find the worker does not have entitlement to colorectal cancer in this claim. In reaching this decision, I have carefully considered all the available information on file, the worker’s submission, and the relevant operational policies.
As the worker did not provide a submission with their January 2, 2024, ARF, I have considered the worker’s submission dated November 14, 2023. In this submission, the worker states that in 1987, at the age of 31, they became an actively involved volunteer firefighter for the town of X. The worker worked as a volunteer lieutenant and captain for a total of 29 years, and at the age of 60, they transitioned from Town X Fire department to Town Y where they actively served for over six years. In September 2021, the worker was diagnosed with colorectal cancer, and in October 2021, the worker underwent resection surgery. Once recovered from surgery, the worker returned to their volunteer captain duties, and continued active involvement until their diagnosed metastatic liver cancer. The worker had to stop working in July 2023, due to the effects of their chemotherapy treatment. The worker received intensive chemotherapy treatment for two months, and in October 2023, the worker underwent liver resection surgery. As a result, the worker made multiple trips to A and B Hospitals. The worker states that they disagree with the presumption clause that states they must be under 61 years of age at the time of diagnosis for entitlement to be granted. Although the worker was not diagnosed until the age of 65, at the time of diagnosis, they were still active as a volunteer firefighter. The worker is requesting entitlement to their colorectal cancer be accepted in this appeal, and they are requesting renumeration for their travel, parking, and care giving expenses.
The employer is not participating in this appeal, and no submissions have been provided for my review.
Employment history
In this case, I note the OD Adjudicator’s memorandum dated August 14, 2023, in which the worker confirmed the following employment history:
1979 to 2019 Correction officer
The worker held different roles, such as staff training and rehabilitation officer
The worker had no exposure to agents of interest for cancer
The worker retired in 2019
1987 to 2016 Volunteer Firefighter
City of X volunteer firefighter, the worker became a captain within 20 years
It is X’s policy that when a firefighter turns 60 they are not to be in active suppression
The worker advised that during their over 30 years of firefighting, they attended many structure fires, and factory fires, but they do not remember any specifically large or memorable fires
The worker retired in 2016
2017 to Present Volunteer Firefighter
Township of Y
The worker became a captain in 2019
The worker remains active with the Township of Y, although they stopped due to chemotherapy treatment
2021
- The worker began driving a school bus
Medical evidence
Dr. Patel, the worker’s family doctor submitted their clinical notes for the worker’s visits regarding symptoms related to their diagnosed colorectal cancer. As per the note dated May 13, 2021, Dr. Patel states that at the age of 65, the worker was seen for stool changes. As such, the worker was referred for further testing. The worker was seen for worsening bowel issues again on June 23, 2021, and the worker was referred for a colonoscopy. The colonoscopy was booked for September 2021.
Dr. Patel, colorectal surgeon submitted a report dated September 17, 2021, stating the worker has been newly diagnosed with upper rectal cancer. The worker reported a six-month history of symptoms. The worker is unaware of a family history of colorectal cancer, and they have not undergone other intrabdominal surgeries. The worker is an ex-smoker, who quit 15 years prior, and the worker drinks four to six drinks a week. Dr. Patel diagnosed the worker with stage II upper rectal cancer, and recommended surgery. The worker underwent a robotic assisted low anterior resection on October 15, 2021, and the worker was discharged home in stable condition.
The worker followed up with Dr. Patel on June 12, 2023, and they reviewed diagnostic test results that were performed in May 2023. Unfortunately, the results showed metastatic disease, and the worker was referred for chemotherapy treatment.
As the worker is claiming entitlement to an occupational disease, I find it important to note that occupational disease cases are adjudicated under section 2 (1) and section 15 of the Act and by regulation in Schedules 3 & 4 of the Act. If the disease is not listed in the Schedules and a relevant policy has not been developed, entitlement to benefits and services is determined based on the merits and justice of the case. 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. In this case, the worker is claiming entitlement to colorectal cancer due to their occupational exposures while working as a volunteer firefighter. As this is not a schedule 3 or 4 disease,
I have considered entitlement based on the criteria as outlined in Policy 23-02-01 and Policy 16-02-11.
I have also considered entitlement based on the merits and justice of this claim.
As per the information on file, the worker is a volunteer firefighter, and they were diagnosed with colorectal cancer. As such, I have first considered entitlement under Policy 23-02-01.
Entitlement under Policy 23-02-01, Cancers in Firefighters and Fire Investigators
For the reasons that follow, I find the criteria to allow entitlement under this policy has not been met.
Policy 23-02-01 states that if a firefighter or a fire investigator is diagnosed with a prescribed cancer on or after January 1, 1960, and meets the employment duration and additional criteria for the prescribed cancer, then the disease is presumed to be an occupational disease due to the nature of the worker’s employment, unless the contrary is shown.
Policy 23-02-01 goes on to state that the presumption applies to:
workers who are full-time or volunteer firefighters as defined in Section 1 of the Fire Protection and Prevention Act, 1997
part-time firefighters, defined as a worker who is a firefighter and is not a volunteer or full-time firefighter
workers who:
are employed by a band council and assigned to undertake fire protection services on a reserve [band council and reserve are defined in the Indian Act (Canada)], or
provide fire protection services on a reserve, either voluntarily or for a nominal consideration, honorarium, training, or activity allowance
fire investigators, defined as a worker:
to whom the Fire Marshal, appointed under subsection 8(1) of the Fire Protection and Prevention Act, 1997, has delegated the duty to investigate the cause, origin, and circumstances of a fire.
who was an inspector appointed under subsection 2(4) of the Fire Marshals Act before that Act was repealed by the Fire Protection and Prevention Act, 1997, or
who is employed by a band council and assigned to investigate the cause, origin, and circumstances of a fire on a reserve.
For the purpose of this policy, the term "firefighter" refers to a full-time firefighter, a part-time firefighter, or a volunteer firefighter.
The presumption provides that the prescribed cancers are occupational diseases presumed to occur due to the nature of the worker’s employment as a firefighter or fire investigator unless the contrary is shown.
To qualify for this presumption, a worker must meet the inclusion criteria of this policy and have been:
diagnosed with a prescribed cancer
diagnosed after the prescribed minimum employment duration, and
diagnosed with that cancer on or after January 1, 1960.
A worker diagnosed with primary-site colorectal cancer or primary-site lung cancer must also meet the additional criteria specified in this policy to qualify for the presumption.
In addition to the above criteria, for:
primary-site colorectal cancer, a diagnosis must be obtained prior to the age of 61 years, and
primary-site lung cancer, the worker must not have smoked a tobacco product in the 10 years prior to diagnosis.
Based on my review of the evidence, I find the policy criteria as outlined above has not been met. As such, I find the worker does not have entitlement under this policy for their diagnosed colorectal cancer.
I find it important to note that I accept the evidence does support the worker is a volunteer firefighter, that they were diagnosed with a prescribed cancer after January 1, 1960 (colorectal cancer), and that their
30 + year history as a volunteer firefighter meets the minimum employment duration. However, the worker was not diagnosed with colorectal cancer until they were 65 years old. Therefore, the worker does not meet the policy criteria that requires the worker to be diagnosed with colorectal cancer before the age of 61. As my decisions are bound by Policy, I find the worker does not have entitlement to colorectal cancer under this policy.
Entitlement under Policy 16-02-11 Gastro-Intestinal Cancer-Asbestos Exposure
Policy 16-02-11 states that Gastro-intestinal cancer in asbestos workers is accepted as an occupational disease under sections 2(1) and 15 of the Workplace Safety and Insurance Act as peculiar to and characteristic of a process, trade or occupation involving exposure to asbestos.
All primary cancers associated with the esophagus, stomach, small bowel, colon, and rectum are included in the classification of gastro-intestinal cancers.
Based on medical studies, claims are favorably considered if the following circumstances apply
- there is a clear and adequate history of occupational exposure to asbestos dust, and while such occupational exposure cannot be quantitatively described, it should be of a continuous and repetitive nature, and should represent or be a manifestation of the major component of the occupational activity,
AND
- there is a minimum interval of 20 years between the first exposure to asbestos and the diagnosis of gastro-intestinal cancer.
No distinction is given to the site of the cancer in assessing the merit of the claim.
Occupational Disease Policy and Research Branch document titled: Interpretation of Policy 16-02-11, Gastro-Intestinal Cancer-Asbestos Exposure provides clarification of the entitlement criteria in this policy. The document states that the authors of the policy intended that regular, significant exposures to asbestos would provide sufficient exposure to explain the development of gastro-intestinal cancers.
- “Clear and adequate” was intended to refer to known asbestos exposure and not exposure that is
hypothetical or speculative. The presence of airborne asbestos in the workplace in the vicinity of the
worker must be established.
- “Continuous” refers to ongoing exposure, and not a brief exposure period such as six months, unless it
included extraordinarily high levels of exposure.
- The term “repetitive” was used to describe the frequency of exposure, which should be daily or
exposures of 3 to 5 times per week. This term was not intended to refer to a single exposure event or to
exposure that was occasional or incidental in nature.
- Consistent with the continuous and repetitive nature of the exposure, asbestos exposure must be a
major component of the occupational activity.
Having considered the evidence on file, I find that the worker’s 40-year employment as a correctional officer did not involve asbestos exposure. This is confirmed by the worker in the memorandum dated August 14, 2023, as they state their correctional officer position did not expose them to asbestos. In terms of the worker’s employment as a voluntary firefighter from 1987 to 2023, I find the evidence supports that although the worker could have had some exposure to asbestos depending on the fire they attended, I do not find the evidence supports the worker was continuous and repetitively exposed to asbestos. I also find that exposure to asbestos did not represent the major component of the worker’s occupational activity as a volunteer firefighter. I find it significant to note that the worker’s full-time job from 1979 to 2019 was their position as a correctional officer, and while the worker was working as a volunteer firefighter during this time, this was not the worker’s full-time regular job. As such, I find this also supports the worker was not continuously and repetitively exposed to asbestos.
For the reasons stated above, I find the criteria to allow entitlement under Policy 16-02-11 has not been met.
Have the entitlement criteria as outlined in Policy 11-01-01 Adjudicative Process and Policy 11-01-03 Merits and Justice been met?
I find the criteria to allow entitlement under Policy 11-01-01 and Policy 11-01-03 have not been met.
Policy 11-01-01 states that a five point check system is used to adjudicate initial entitlement claims. Each point must be satisfied for initial entitlement to be allowed. There must be an employer, a worker, a personal work-related injury, proof of an accident, and compatibility of the diagnosis to the accident or disablement. For the reasons that follow, I find compatibility has not been established.
Policy 11-01-03 states that every decision made by the WSIB must be based on the merits and justice of the case, which means decision-makers must take into account
all facts and circumstances relating to the case
the relevant WSIB policy or policies, and
the relevant provision or provisions of the Workplace Safety and Insurance Act or the Workers' Compensation Act (the Act).
Policy 11-01-03 goes on to state that the obligation to decide each case on the basis of merits and justice does not authorize a decision-maker to disregard the relevant provisions of the Act or WSIB policies. The Act and the policies must be taken into consideration and cannot be ignored if they apply to a particular case.
In considering both occupational and non-occupational risk factors for colorectal cancer, I refer to the findings as provided by the International Agency for Research on Cancer (IARC). IARC is an international agency forming part of the World Health Organization of the United Nations. IARC’s role is to conduct and coordinate research into the causes of cancer. According to IARC, the following carcinogenic agents are known to have sufficient evidence in humans in relation to colorectal cancer:
Alcoholic beverages
Processed meat (consumption of)
Tobacco smoking
In terms of carcinogenic agents with limited evidence in humans in relation to colorectal cancer, IARC lists the following:
Asbestos (all forms)
Firefighter (occupational exposure)
Night shift worker
Red meat (consumption of)
Schistosoma japonicum (infection)
X- and Gamma-radiation
Based on my review of the evidence, I find compatibility between the worker’s occupational exposures and the diagnosed colorectal cancer has not been established. In making this determination, I have placed significant weight on the findings as provided by IARC. As previously stated, IARC’s role is to conduct and coordinate research into the cause of cancer, and according to their findings, carcinogenic agents that are known to have sufficient evidence in humans in relation to colorectal cancer include alcoholic beverages, processed meat, and tobacco smoking. In terms of work as a firefighter, IARC states there is only limited evidence in humans. Noting that IARC found only limited evidence in humans for firefighters, and that volunteer firefighting was not the worker’s full-time job from 1987 to 2023, I am unable to accept the evidence supports the worker’s colorectal cancer is compatible with their occupational exposures. Therefore, I find not all criteria as outlined in Policy 11-01-01 have been met.
As I am unable to establish compatibility between the worker’s occupational exposures and their diagnosis, I find that based on the merits of the claim, the worker does not have entitlement to colorectal cancer.
For the reasons stated above, I do not find the worker has entitlement in this claim under
Policy 11-01-03.
CONCLUSION
I find the worker does not have entitlement to colorectal cancer.
The worker’s objection is denied.
DATED May 22, 2024
Appeals Resolution Officer
Appeals Services Division