Cancer Council Australia

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Firefighters' compensation and presumptive legislation



 

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Conference:

kNOw cancer risks at work, Cockle Bay Sydney, May 2015

 

Presenter:

Nicola Quin, Head of Division, Strategy and Support, Cancer Council Victoria

 

Title:

Firefighters' compensation and presumptive legislation

 

Presentation outline:

Nicola Quin provides a general context and background on principles of workers’ compensation in Australia, followed by a discussion about moves towards introducing specific compensation measures for firefighters.

Read transcript

So in Australia, Compensation for Occupational Diseases including some cancers is available pursuant to statutory or legislative worker’s compensations schemes.

There are nine schemes, eight for the states and territories and one for the Commonwealth. Each jurisdiction has a broadly similar framework and approach to worker’s compensation.

The statutory schemes operate on a no-fault basis, which means that worker’s do not have to prove negligence on the part of an employer. Under Australian Common Law claims, a worker was required to prove negligence on the part of an employer, but legislation has replaced the common law.

So in terms of the pathways for claiming compensation, there are three pathways that the worker seeking compensation in an Australia jurisdiction can go through. There is the general provision, which is the compensation provisions, a presumptive provision and now in some jurisdictions, special protection for at-risk occupations, in particular firefighters.

The first of these, the general compensation provision, a worker as defined in the relevant legislation, in the relevant worker’s compensation legislation is entitled to compensation if they develop a disease that is due to the nature of their employment and that employment gave rise to a significantly greater risk of the worker contracting that disease. So a disease suffered by a worker is to be regarded as due to the nature of employment if and only if the nature of the employment gave rise to a significantly greater risk of the worker contracting the disease than had the worker not been employed in the employment of that nature. The expression “significantly greater risk” is derived from the common law and to be considered as significant, a factor must be of considerable amount or effect, but it need not be the sole major or dominant cause of the condition.

The second pathway for compensation in the statutory schemes is under provision that relates to specific diseases, processes or occupations. All jurisdictions except Queensland have a list of diseases or processes, which are deemed to be caused by employment. If a worker develops a disease from the list, it is deemed to be caused by employment without the need for further causative evidence. It is up to the employer to show that the disease was not caused by employment in order to challenge the claim. So the number and type of occupational diseases and descriptions of occupations and processes on these lists does vary between jurisdictions. In relation to cancers, the three diseases listed on this slide are included on all the deemed diseases lists around Australia. If a worker develops a cancer that is not on this list and there is a suggestion that the cancer may be work related, then it is up to worker to prove that their employment caused their cancer under the initial general compensation provision.

Here we have got asbestosis, you can say that the three there. So, the third pathway to compensation, some Australian jurisdictions have introduced special legislative provisions dealing with a specific occupation namely firefighting.

Research suggests that firefighters owned an increased risk of developing certain types of cancers related to their work and exposure to carcinogens. However, because of the nitro firefighting proving causation is difficult, exposure is difficult to measure due to multiple firefighting events and uncertainty about the level and the intensity of carcinogens present. Because of the difficulties in proving causation, firefighters were rarely really successful in claiming compensation under the general compensation provisions.

In response, a number of jurisdictions have moved to introduce special presumptive legislation for firefighters. Internationally, Canada and US have the led the push towards special firefighter protections. So most Canadian provinces have presumptive legislations including 14 cancers including lung, pancreatic, skin and melanoma, and 24 US States have presumptive legislations, although it is neither uniform in the cancers addressed nor in the required times that you must work in order to receive compensation. Most of the American states also exclude volunteers.

Australia has started to follow suit. In 2011, the Commonwealth Government undertook to amend its Worker’s Compensation Legislation to provide special protection for firefighters. As part of this, a senate inquiry was undertaken to examine the scientific basis for special protection and stakeholder views were sought on the proposed legislation so that the bill was the Safety Rehabilitation and Compensation Amendment and the inquiry was undertaken by the Standing Committee on Education, Employment and Workplace Relations. So, in terms of the evidence that both the inquiry and the bills digest, which is prepared for the bill, does look at the evidence for that legislative change, so it did look to the IARC monograph of 2010 and the bills digest, which is available through the Commonwealth Parliament website did cite the 2010 IARC monograph, which found that there is limited evidence in humans for the carcinogenicity of occupational exposure as a firefighter. It found there is inadequate evidence in experimental analysis for the carcinogenicity of occupational exposure as a firefighter, since no data was available to the IARC Working Group and it lastly found that occupational exposure as a firefighter is possibly carcinogenic to humans, so that is the group 2B under the IARC standards.

However, despite this conclusion, the monograph did acknowledge that firefighters are exposed concurrently to a multitude of chemical compounds that include numerous carcinogens. The IARC monograph acknowledges that studies used indirect or poor measurements of exposure to carcinogenic agents and exposure of firefighters vary considerably depending on their job activities with only crude measures available for exposure such as duration of employment or number of runs that are used in studies.

A further study, the LeMaster study was cited favorably in both the senate inquiry and the bills digest. It was an extensive measure analysis that examined the risk of cancer in relation to 110,000 firefighters. This study found probable risk for a range of cancers, multiple myeloma, non-Hodgkin’s lymphoma and prostate cancer, possible risk for testicular cancer, skin cancer, malignant melanoma, brain cancer, cancer of the rectum, buccal cavity and pharynx, stomach and colon as well as leukemia and unlikely risk of cancer of the larynx, bladder, esophagus, pancreas, kidney, liver, lung as well as Hodgkin’s disease and so those three references are also IARC classifications of risk probable, possible, and unlikely.

The senate committee while acknowledging the complexity of the evidence before them did conclude that for the purposes of introducing a rebuttable presumption of causation, the evidence demonstrated a link between firefighting and an increased incidence of certain cancers, that was not to say that the link is definitive and the committee pointed out that the scientific certainty of a link was not the main goal rather that the evidence was sufficient to support a presumption that cancer was most likely caused by an occupational exposure.

The policy position that was taken on the introduction of the bill to Commonwealth Parliament was that of Tee Guidotti who is a very prominent occupational researcher in the US and that is that firefighters are expected to take risks that would be unacceptable in any other work environment. They may be trained to manage these risks and to protect themselves, but the working environment cannot be made safe because they deal with situations that are inherently dangerous and may lose control. In the interest of society and as safety professionals, however, they essentially waive the right to refuse dangerous work and routinely accept the risk. It is ultimately in society’s interest to compensate for these risks because this work has to do be done.

Since the Commonwealth introduced legislation in 2011, a number of Australian jurisdictions have introduced or committed to introducing special protection for firefighters. Here I will go through some of the Commonwealth legislation only because the provisions of the Commonwealth legislation have largely been replicated in other states and territories though there are some differences. So, in 2011, the parliament amended the presumptive provisions in the Safety Rehabilitation and Compensation Act, if a firefighters develops one of the cancers listed in the Act and has been employed for a set period or periods of time, it is presumed that the employment was the cause of the cancer and the onus then lies on the employer to disprove the connection. The Commonwealth legislation covers approximately 8% of the Australian firefighting workforce and does not extend to state firefighters.

So, these are the cancers that are listed in the Commonwealth legislation, so you can see brain, bladder, kidney, non-Hodgkin’s leukemia, breast, testicular, multiple myeloma, prostate, ureter, and colorectal and esophageal, and there are qualifying periods there. Again, as mentioned earlier, the mere fact that a firefighter develops one of the listed cancers, does not mean automatic compensation, it merely gives rise to a presumption. The employer may provide evidence to show that the disease is due to some other factor that is not employment related and if this evidence is strong enough, this may rebut the presumption.

South Australia, Tasmania and Western Australia all have presumptive legislation for firefighters. Wording difference between their jurisdictions, but elements are the same. They must have developed a list of cancers, they all adopt from the Commonwealth 2011 list and they must have been employed as a firefighter for the applicable qualifying period.

So, in South Australia, it was the relevant provisions of the Worker’s Rehab and Compensation Act, 1986 Act. They must have been employed as a firefighter for qualifying period or two or more equivalent periods that develop the cancers listed in the legislation. This legislation initially did not cover volunteers, but this was to be extended to volunteers in 2014.

In Tasmania, the relevant provision was the Worker’s Rehab and Compensation Act 1988. The Tasmanian legislation does cover volunteer and career firefighters, if developing the cancers listed in the legislation, you have to be employed as a firefighter for the specified period of time or as a volunteer with a specific number of turnouts and the 150 exposure events is what the Tasmanians have set that at to qualify for coverage.

In Western Australia, it was an amendment to the Worker’s Compensation and Injury Management Act 1981 and the coverage was for career firefighters and is expected to soon extend to volunteer firefighters as well.

So, for other Australian jurisdictions where there is no presumptive legislation, firefighters that develop an occupational cancer may be awarded compensation according to the general provisions that were first discussed.

In Victoria, a bill to amend the relevant act, the Accident Compensation Act was to be introduced to parliament in 2011; however, this is delayed due to a constitutional issue.

In Queensland in 2014, the Newman government did pledge support for introducing presumptive legislation, but there has been no movement yet since the new government in Queensland was elected.

In Northern Territory, there is an announcement in 2015 that there is commitment to introduce the firefighter presumptive legislation and in New South Wales and ACT, there have been no moves at this time to introduce this legislation.


This page was last updated on: Thursday, January 28, 2016