Monday, July 20, 2020
The Ontario workers’ compensation agency has made public a commissioned report on how the law can be improved so that science more properly informs the manner in which presumptions can aid the compensability of occupational cancers. And the focus is indeed cancer, but the author notes at the outset that the one issue he will not be addressing is the thorny issue of cancer in firefighters – an issue in Canada as well as in the U.S. See Paul A. Demers, Ph.D., Using Scientific Evidence and Principles to Help Determine the Work-Relatedness of Cancer (Jan. 9, 2020), https://www.ontario.ca/document/using-scientific-evidence-and-principles-help-determine-work-relatedness-cancer.
Ontario, of course, has a mandatory workers’ compensation system, with a proactive administrative agency. The program is similar to those of U.S. states, though all Canadian provinces feature fund systems like those of Ohio and Washington. Such programs typically have powerful agencies. The Canadian system, according to the report, is supposed to be non-adversarial.
This report is definitely for the wonk, but is educational in myriad ways. The author explains, for example, the current scientific thinking about how cancer manifests itself. Reflecting on this point, the report posits that disease manifestation provisions can exclude claims of individuals whose diseases manifest late but are nonetheless work-exposure-related. The author also explains that, for decades, research has focused on the carcinogenic effect of an array of suspected agents, but research is much weaker, or absent, in addressing such effects when an individual is exposed to multiple agents at the same time, over a period of time, and/or at successive workplaces.
Of special interest to the U.S. reader is the author’s discussion of presumptions. This feature of workers’ compensation laws, he explains, is common to Europe, Canada, and the U.S. (Indeed, they were part of the English enactments which formed the basis of early American laws.) Notably, under the Ontario system, workers with the necessary exposure who incur two particular cancers enjoy a non-rebuttable presumption of causation. These are mesothelioma in workers exposed to asbestos and, in a feature unknown to state laws in our country, nasal and sinus cancer in workers in specific workplaces. (Exposure to “any process at the Copper Cliff sinter plant of Inco, Limited.”)
Many critiques of workers’ compensation – for decades – have derided the workers’ compensation system for not adequately covering occupational diseases. One response to that critique, from the trenches, has been that cigarette smoking muddies the analysis in many cases, leading to denials and litigation. In any event, in a convenient list, the author provides a recounting of “why the compensation of occupational cancers is so challenging.” These are:
- The clinical and pathological expression of cancers do not generally differ by cause. For example, there is no lab test that can tell us if a lung cancer was caused by smoking or asbestos or another carcinogen.
- Almost all cancers have multiple causes and individuals differ in susceptibility.
- Cancers can be diagnosed long after exposure and it can be very difficult to estimate the level and length of exposure, which are strong predictors of the likelihood of people developing cancer.
The practicing attorney or judge is benefited in particular by the author’s technical but plain-English review of the scientific principles that are employed in understanding the causation of cancer.