Download Special protection for firefighters

Firefighters compensation
and presumptive legislation
Nicola Quin,
Director, Strategy and Support Division, Cancer Council Victoria
Outline of talk
A. Context and general principles of compensation
B. Special protection for firefighters
Compensation for occupational diseases:
general principles
•
Compensation for occupational injuries or damage is
governed by statutory (legislated) schemes
•
Nine similar statutory schemes – 8 state and territory
schemes and 1 Commonwealth scheme
•
All operate on a ‘no fault’ basis = do not have to prove
negligence
Features of workers compensation schemes
Pathways for claiming compensation:
1.
General compensation provisions
2. Specific/proclaimed/deemed diseases
3. Specific ‘at risk’ occupations (in some jurisdictions)
Workers compensation schemes:
general compensation provisions
Occupationally related disease is compensable if the worker
can show that the disease is:
- due to ‘the nature of employment,’ and
- the nature of employment gave rise to a ‘significantly
greater risk’ of the worker contracting the disease.
Workers compensation schemes: general
compensation provisions
nature of employment
= if the nature of the employment gives rise to significantly
greater risk of the worker contracting a disease than had the
worker not been employed in employment of that type
significantly greater risk
= to be considered significant, a factor must be of
considerable amount of effect, but need not be the sole,
major or dominant cause of the condition (from common law)
Workers compensation schemes:
specific diseases/processes/occupations
• The proclamation or listing of certain diseases or
processes
• If a worker develops a disease from the list, or is exposed
to a process, their injury is presumed or ‘deemed’ to be
caused by employment without the need for further
causative evidence.
• Employer bears the onus of rebutting the presumption that
employment caused the disease
Workers compensation schemes:
specific diseases/processes/occupations
Deemed diseases lists vary between jurisdictions.
All list the following cancers or cancer causing processes:
Workers compensation schemes:
firefighters and special protection
• Studies suggest firefighters are at an increased risk of
developing certain types of cancer, owing to exposure to
carcinogenic particles associated with fire-fighting
• However, proving causation can be difficult, because
exposure to these particles can vary, and there may be
multiple exposures from more than one event
Special protection for firefighters:
international approaches
• Most Canadian provinces have presumptive legislation,
including 14 cancers – also include lung, pancreatic and
skin cancer/melanoma.
• 24 US states have presumptive legislation, although it is
neither uniform in the cancers addressed, nor the
requirements necessary to receive compensation

Most states exclude volunteer firefighters
Firefighters and special protection:
Australian developments
Safety, Rehabilitation and Compensation Amendment (Fair
Protection for Firefighters) Bill 2011
2011 Inquiry: Senate Standing Committee on Education,
Employment and Workplace Relations
Special protection for firefighters:
state of the evidence
2010 IARC Monograph
• limited evidence in humans for the carcinogenicity of occupational
exposure as a firefighter
• occupational exposure as a firefighter is possibly carcinogenic to
humans (Group 2B)
• ‘firefighters are exposed concurrently to a multitude of chemical
compounds that include numerous carcinogens’
•However:
• Quality of the available evidence is poor.
• Variation of exposure has an effect on evidence results
Special protection for firefighters:
state of the evidence
Le Masters found:
• probable risk for multiple myeloma, non-Hodgkin 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
• unlikely risk for cancer of the larynx, bladder, esophagus, pancreas,
kidney, liver and lung as well as Hodgkin’s disease.
Special protection for firefighters:
state of the evidence
• “Given the quantity and quality of evidence presented, the
committee is confident that a link between firefighting and
an increased incidence of certain cancers has been
demonstrated beyond doubt.”
• “Adjudication under workers’ compensation requires an
examination of the weight of evidence, not scientific
certainty.”
Firefighters and special protection:
rationale for intervention
“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 this risk
because the work has to be done”.
Firefighters legislation in Australia
•
•
•
•
Commonwealth
South Australia
Tasmania
Western Australia
Firefighters legislation in Australia
Commonwealth
• 2011 amendment to the Safety, Rehabilitation and
Compensation Act 1988
• If a firefighter develops one of the listed cancers and has
been employed for a set period of time, it is presumed that
employment was the cause of the cancer.
• The onus lies on the employer to disprove the connection.
Commonwealth legislation:
listed cancers
Firefighters legislation in Australia
• South Australia, Tasmania and Western Australia all have
presumptive legislation for firefighters.
• Wording differs between jurisdictions, but elements are
generally the same:
 Must have developed a listed cancer (all adopt the same list as
Commonwealth legislation)
 Must have been employed as a firefighter for the applicable qualifying
period
South Australia
• Section 31, Workers Rehabilitation and Compensation Act
1986, South Australia
• Did not initially cover volunteers – proposed to extend this
to volunteers in 2014.
Tasmania
• Section 27 Workers Rehabilitation and Compensation Act
1988 Tasmania
• Covers Tasmanian volunteer and career firefighters.
• Must be employed as a firefighter for a specified time, or
as a volunteer with a specific number of turnouts (150
exposure events) to qualify for coverage.
Western Australia
• Section 49C Workers’ Compensation and Injury
Management Act 1981 Western Australia.
• Coverage for career firefighters, and soon will extend to
volunteer firefighters.
Other Australian jurisdictions
• Victoria: no presumptive legislation. 2011 bill has been
delayed pending determination of a constitutional issue
• Queensland: previous government pledged support for
introducing presumptive legislation in 2014
• Northern Territory: announced in 2015 a commitment to
introducing legislation
• NSW
• ACT
Questions?