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Presumptive Disability Law in British Columbia
 
CODE PART:
 
Workers Compensation Act
[RSBC 1996] CHAPTER 492

British Columbia Legislative Website
 
 
DESCRIPTION:
 
Workers Compensation Act
Firefighters' Occupational Disease Regulation

Definitions
In this regulation, Act means the Workers Compensation Act.

Prescribed occupational diseases
Each of primary leukemia, primary non-Hodgkin's lymphoma, primary site bladder cancer, primary site brain cancer, primary site colorectal cancer, primary site kidney cancer, primary site testicular cancer and primary site ureter cancer is prescribed as an occupational disease for the purposes of section 6.1 (2) of the Act.

Minimum cumulative periods of employment prescribed
The minimum cumulative period set out in Column 2 of the Table is prescribed for the purposes of section 6.1 (3) (a) of the Act in respect of the occupational disease set out opposite it in Column 1.
Item Occupational Disease Minimum Cumulative Period
1 primary leukemia 5 years
2 primary non-Hodgkin’s lymphoma 20 years
3 primary site bladder cancer 15 years
4 primary site brain cancer 10 years
5 primary site colorectal cancer 20 years
6 primary site kidney cancer 20 years
7 primary site lung cancer 15 years
8 primary site testicular cancer 20 years
9 primary site ureter cancer 15 years

Minimum non-smoking periods prescribed for previous smokers
In the case of a worker who does not meet the requirement of 6.1 (3.1) (a) of the Act, the minimum period for the purposes of section 6.1 (3.1) (b) of the Act is prescribed as follows:
  1. if the worker smoked cigarettes,
    1. 6 consecutive years, if the worker smoked, on average, fewer than 7 cigarettes per week,
    2. 6 consecutive years, if the worker smoked, on average, 1 to 9 cigarettes per day,
    3. 13 consecutive years, if the worker smoked, on average, 10 to 19 cigarettes per day,
    4. 18 consecutive years, if the worker smoked, on average, 20 cigarettes per day,
    5. 23 consecutive years, if the worker smoked, on average, 21 to 39 cigarettes per day, and
    6. 28 consecutive years, if the worker smoked, on average, 40 or more cigarettes per day;
    7. 8 consecutive years, if the worker smoked, on average, one or more cigars or pipes per day but did not smoke cigarettes;
    8. if the worker smoked cigarettes in combination with cigars or pipes, the periods prescribed in paragraph (a) apply with a cigar or pipe counting as a cigarette.

    9. July 14, 2009 Volume II

      * Provincial workers compensation policy to review firefighter cardiovascular disease cases but not an actual presumption

      #15.15 Firefighters and Heart Injury The physical tasks involved in extinguishing fires and performing related rescue and hazardous materials responses expose firefighters to risks that are often unique to their profession. In this section the term "firefighter” refers to workerswhose actual duties involve extinguishing fires and/or performing related rescue and hazardous materials duties. This section does not apply to workers employed in the firefighting profession who do not perform such duties.

      Evidence that a worker’s job description includes the performance of such duties does not in itself render the worker a firefighter for the purposes of this section.

      If during or within twenty-four hours immediately following attending a fire, rescue, or hazardous materials response the firefighter experiences:
      • the onset of chest pain, collapse, cardiac arrest, or death due to myocardial infarction (heart attack); or
      • the onset of symptoms, collapse, cardiac arrest, or death associated with an episode of acute cardiac arrhythmia; a strong inference will arise that such condition was caused by the employment where during the course of attending such fire, rescue, or hazardous materials response the firefighter was exposed to:
      • an intense physical effort sufficient to cause significantly increased heart rate and arterial blood pressure, or
      • high temperatures and/or the wearing of personal protective equipment that significantly affected the firefighter’s ability to thermo-regulate or that caused the firefighter to undergo intense physical effort, or
      • environments containing asphyxiants such as carbon monoxide, carbon dioxide, or hydrogen cyanide, and that are likely to have produced oxygen deficiency in that firefighter.

      The commencement of such twenty-four hour period begins when the firefighter leaves the scene of the fire, rescue, or hazardous materials response. Against this inference must be weighed any evidence which suggests that such cardiac condition is due to non-occupational factors. However, it is recognized that in rare cases the onset of symptoms associated with such cardiac condition may first occur between twenty-four and forty-eight hours following the abovedescribed occupational exposure(s). Where the onset of such symptoms first occur more than twenty-four hours after the firefighter leaves the scene of the fire, rescue, or hazardous materials response, consideration is given to any evidence which may account for such delay in onset. In particular, consideration is given to all relevant clinical records, including hospital reports, that document the worker’s condition.

      Generally, the Board will determine that the firefighter’s condition is not causally associated with the employment where the onset of symptoms, collapse, cardiac arrest, or death due to the above-described cardiac condition occurs:
      • more than forty-eight hours following the time when the firefighter left the scene of such fire, rescue or hazardous materials response; or
      • during or immediately following the performance of non-occupational activities that are likely to have caused the firefighter to experience significantly altered cardiovascular or respiratory function.


      Against this inference must be weighed any evidence which supports the claim.

      Where one of the above-described conditions is determined to be compensable, the Board must determine whether the worker was suffering from a pre-existing or underlying condition such as coronary artery disease. See policy items #15.00, #15.10 and #30.70.

      #15.00 NATURAL CAUSES
      It is necessary to distinguish between injuries resulting from employment (which are compensable), and injuries resulting from purely natural causes (which are not compensable). An injury is not compensable simply because it happened at work. It must be one arising out of and in the course of employment. If it happened at work, that usually indicates that it arose in the course of the employment. But it must also have arisen "out of” the employment. This means that there must have been something in the employment relationship or situation that had causative significance in producing the injury. But if the injury was one arising out of purely natural phenomena – the internal workings of the human body – the employment situation may then be an irrelevant coincidence, and if so, the injury is not compensable.

      #15.10 Worker Has Pre-existing Deteriorating Condition
      There may be cases where an organ of the body is deteriorating, possibly through disease, and it has reached a critical point at which it is likely to become a manifest disability. Some immediate activity might trigger the final breakdown. But if it had not been one thing it would most likely have been another, so that it is only chance or coincidence whether it happened at work, at home, or elsewhere. The disability is one that the worker would not have escaped regardless of the work activity, and hence the causative significance of the work activity is so slight that the disability is treated as having resulted from the deteriorating condition. The disability is the result of natural causes and is not compensable. A Board decision illustrates the point: "An office worker goes to work at an office that is located above a store. He walks up one flight of stairs to his office and has a heart attack at the top. The evidence indicates a deteriorating condition of his heart. It indicates that a heart attack would not be unexpected and could be brought on by any activity at all. The disability is the result of natural causes and is not compensable.” On the other hand, there may be other cases where the deteriorating condition was such that, in the absence of some exceptional strain or other exceptional circumstance, it was not likely to reach a critical point and become a disability about the time of the work injury. The worker could well have survived without disability for months or years if something exceptional in the course of his employment had not triggered the disability. Here the employment situation had substantial causative significance and the disability is compensable. An illustration of the point comes from a Board decision which stated in part:

      "A transportation worker is moving a 300 lb. load up a flight of stairs when the load slips, causing fright and strain. The worker has a heart attack. Again the medical evidence indicates a deteriorating condition of the heart. But it supports a conclusion that the worker could well have survived for months or years without a heart attack had it not been for this unusually strenuous experience. Here the employment situation appears to have had causative significance and the heart attack is compensable.” It is sometimes said that an event at work "triggered” the disability. This does not, however, determine whether the disability is compensable. The circumstances, including the condition of the worker, must be investigated in such cases to determine which of the above applies.

      #30.70 Heart Conditions
      Heart-related conditions which arise out of and in the course of a person’s employment and which are attributed to a specific event or cause or to a series of specific events or causes are generally treated as personal injuries. They are therefore adjudicated in accordance with the policies set out in Chapter 3. If the heart-related condition of a worker is one involving a gradual onset and is not attributed to a specific event or cause or to a series of events or causes, the claim will be adjudicated under section 6 of the Act. (See policy items #15.10 and #15.15).

      * Section applies to all BC workers and is not an actual fire fighter presumption

      "occupational disease" means: (a) a disease mentioned in Schedule B,[Schedule B includes cancers, lung disease and infectious diseases which apply to fire fighters - see below] (b) a disease the Board may designate or recognize by regulation of general application, (c) a disease the Board may designate or recognize by order dealing with a specific case, and (d) the disease referred to in section 6.1 (1.1) or a disease prescribed by regulation for the purposes of section 6.1 (2), but only in respect of a worker to whom the presumption in either of those provisions applies, unless the disease is otherwise described by this definition.

      6.1
      1. In this section, "firefighter" means a member of a fire brigade who is
        1. described by paragraph (c) of the definition of "worker", and
        2. assigned primarily to fire suppression duties, whether or not those duties include the performance of ambulance or rescue services.

        (1.1) If a worker who is or has been a firefighter contracts primary site lung cancer, the disease must be presumed to be due to the nature of the worker's employment as a firefighter, unless the contrary is proved.
      2. If a worker who is or has been a firefighter contracts a prescribed disease, the disease must be presumed to be due to the nature of the worker’s employment as a firefighter, unless the contrary is proved.
      3. The presumptions in subsections (1.1) and (2) apply only to a worker who
        1. has worked as a firefighter for the minimum cumulative period prescribed for the disease, which minimum cumulative period may be defined differently, and be different, for different categories of firefighters,
        2. throughout that period, has been regularly exposed to the hazards of a fire scene, other than a forest fire scene, and
        3. is first disabled from the disease on or after the following date, as applicable:
          1. in the case of a disease that, on or before the date this subparagraph comes into force, was prescribed by regulation for the purposes of subsection (2), April 11, 2005;
          2. (
          3. in the case of primary site lung cancer, May 27, 2008;
          4. in the case of a disease that, after the date this subparagraph comes into force, is prescribed by regulation for the purposes of subsection (2), the date on which that regulation takes effect.
        (3.1) In addition to the requirements of subsection (3), the presumption for a primary site lung cancer applies only if
        1. the worker has, in his or her lifetime, smoked a combined total of fewer than 365 cigarettes, cigars and pipes, or
        2. the worker has been a non-smoker of tobacco products immediately before the date on which the worker is first disabled from that disease for the minimum period that may be prescribed, which minimum period may be different for different types or amounts of previous tobacco product usage.
      4. The Lieutenant Governor in Council may make regulations for the purposes of subsections (2), (3) (a) and (3.1) (b).


      B.C. Reg. 125/2009
      O.C. 246/2009 Deposited March 18, 2009
 
 
 
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