Firefighters Compensation and Presumptive Legislation

1. Firefighters compensation and presumptive legislation

2. Outline of talk • Context and general principles of compensation • Special protection for firefighters

3. 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

4. Features of workers compensation schemes • Pathways for claiming compensation: • General compensation provisions 2. Specific/proclaimed/deemed diseases 3. Specific ‘at risk’ occupations (in some jurisdictions)

5. 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.

6. 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)

7. 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

8. Workers compensation schemes: specific diseases/processes/occupations • Deemed diseases lists vary between jurisdictions. • All list the following cancers or cancer causing processes:

9. 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

10. 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

11. 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

12. 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

13. 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.

14. 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.”

15. 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”.

16. Firefighters legislation in Australia • Commonwealth • South Australia • Tasmania • Western Australia

17. 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.

18. Commonwealth legislation: listed cancers

19. 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

20. 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.

21. 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.

22. Western Australia • Section 49C Workers’ Compensation and Injury Management Act 1981 Western Australia. • Coverage for career firefighters, and soon will extend to volunteer firefighters.

23. 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

24. Questions?