Industrial Disease Standards Panel
I.D.S.P. Occasional Paper
Toronto, Ontario
When the Workers' Compensation Act was amended in 1985, the Industrial Disease Standards Panel was created. The Panel was set-up to provide the Workers' Compensation Board with scientific and policy advice about the recognition and compensation of work-related diseases. The need for the Panel was identified by several individuals, including Professor Weiler, who studied the workers' compensation system and identified systemic under-compensation of disease claims.
The Panel is a decision-making body that is composed of representatives of the public and the scientific community and technical and professional persons. It has a small staff and is assisted by consultations with renowned experts in the areas of medicine and science.
The statute specifically sets out the following mandate (Workers' Compensation Act, R.S.O. 1990, c. W. 11, s. 95):
95. ...
(8) It shall be the function of the Panel,
(a) to investigate possible industrial diseases;
(b) to make findings as to whether probable connections exist between a disease and an industrial process, trade or occupation in Ontario;
(c) to create, develop and revise criteria for the evaluation of claims respecting industrial diseases; and
(d) to advise on eligibility rules regarding compensation for claims respecting industrial diseases.
The Panel provides its advice to the Workers' Compensation Board in the form of Reports of Findings and the Board has the ultimate decision about the implementation of the Panel's recommendations.
To assist with its work the Panel has a small staff of researchers, analysts and support people. In addition to its own staff, the Panel relies heavily on the advice of outside experts in science, medicine and law, as well as on input from interested parties.
Additional copies of this publication are available by writing:
Industrial Disease Standards Panel
69 Yonge Street, Suite 1004
Toronto, Ontario M5E 1K3
(416) 327-156
| Canadian Cataloguing in Publication Data
Main entry under title: Decision making: theory and practice (I.D.S.P. occasional paper) Includes bibliographical references. ISBN 0-7778-2606-2 1. Decision making 2. Workers' compensation-Decision making. I. Ontario. Industrial Disease Standards Panel. II. Series. |
The Adjudication of Industrial Disease Claims in Ontario's Workers' Compensation System
-- by Christopher Leafloor
The Workers' Compensation Appeals Tribunal: Adjudicating Industrial Disease Claims
-- by Carole A. Trethewey
Some Notes on Decision Making in Workers' Compensation
-- by John Risk
On Decision-Making at the Industrial Disease Standards Panel
-- by Christopher Leafloor
Workers' Compensation For Occupational Disease In British Columbia
-- by Dennis L. Campbell,
Occupational Disease Secretariat
and James E. Dorsey, first Chair of the Governors Workers' Compensation Board of British Columbia
The Industrial Disease Standards Panel (IDSP) is responsible for finding a relationship between work and disease. The process by which we and others charged with the same responsibility fulfill these obligations has never been explained in a public forum. To provide for a full discussion we invited the Workers' Compensation Board and the Workers' Compensation Appeals Tribunal (WCAT) to contribute to this document. While WCAT agreed, the Board unfortunately declined to participate.
The Panel agreed to publish this document to allow those parties, interested and affected by the decisions, to understand the process by which decisions were made. We anticipate the audience will include workplace parties as well as physicians and advocates.
There are five papers included in the document - a very brief overview of the entire workers' compensation system in Ontario; a review of the decisions made by the Workers' Compensation Appeals Tribunal; a theoretical review of some of the kinds of decisions we are required to make; and, a review of and explanation of recent IDSP decisions. Finally, we received permission from the WCB in British Columbia to reprint a document which provides an excellent historical review of the questions surrounding the payment of compensation for diseases and how the decision-making process has developed in that province. As you will read, many of the problems that we are struggling with in Ontario have been and are being dealt with in British Columbia.
All of the papers describe processes and institutions which are developing and transforming. These papers are meant to be a snapshot of the process when the papers were written. The IDSP, as well as the individual authors, welcome your comments which will form part of our developing processes.
Christopher Leafloor, Counsel
Industrial Disease Standard Panel
Prior to his call to the bar in 1990, Christopher Leafloor worked for the Union of Injured Workers Legal Clinic and two labour law firms in Toronto. After his call, he was a Law Clerk at the Ontario High Court of Justice and the Ontario Court of Justice (General Division) and worked for the Office of the Worker Adviser. In 1991, he and the Honourable R.F. Reid, Q.C., created and began to publish Reid's Administrative Law; for the next three years he served as its Associate Editor. Since 1992 he has been in private practice and retained as Counsel to the Industrial Disease Standards Panel. Education: B.A. (Queen's University), M.A. (University of Calgary), LL.B. (University of Toronto).
Carole Trethewey, Counsel to the Chair
Worker's Compensation Appeals Tribunal
Following her call to the bar in 1980, Carole Trethewey specialized in legal research, first as an associate and then a partner at Lang, Michener. Since January 1988, she has been Counsel to the Tribunal Chair at the Workers' Compensation Appeals Tribunal. She also acts as the Tribunal's Freedom of Information Co-ordinator and has taught Public Law and Research at the Bar Admission course. Education: B.A. (University of Toronto), LL.B. (Osgoode Hall Law School), LL.M. (London School of Economics).
John Risk, Student
University of Toronto
After completing a Master's Degree in 1991, John worked for a year as a researcher for the Industrial Disease Standards Panel. He is currently enroled in a Doctoral Programme at the University of Toronto.
Dennis L. Campbell, Co-ordinator
Occupational Diseases Standing Committee Secretariat
Workers' Compensation Board of British Columbia
Dennis L. Campbell graduated from the UBC Law School in 1977 and went on to Practice law as an associate and then as a partner in the Vancouver law firm of Macaulay McColl. He has been at the WCB since 1987. Since 1992, he has played an integral role in supporting the work of the Governors' Occupational Diseases Standing Committee.
James E. Dorsey, Lawyer
Lions Bay, British Columbia
Mr. Dorsey is in private practice as an arbitrator and related third party dispute resolution roles. He is also Health Sector Labour Relations Commissioner enquiring into trade union representation and jurisdiction in the B.C. health sector. He was first Chair of the Governors of the WCB of BC (1990-94) and its Occupational Diseases Standing Committee and Interim President and CEO of the Board (1993-94). He is past Vice-Chair, Canada Labour Relations Board (1977-82) and Vancouver Police Board Member (1989-91). For several years in private law practice, he represented employees, trade unions and employers. He is the author of texts, encyclopedic volumes, articles, book reviews and popular self-learning publications on all aspects of employment law.
Christopher Leafloor, B.A. M.A. LL.B.
Counsel, Industrial Disease Standards Panel
To understand the operation of the Industrial Disease Standards Panel, it is necessary to appreciate its place within the broader workers' compensation system in Ontario. With this purpose in mind, this paper will give a brief overview of how the workers' compensation system in Ontario compensates workers afflicted with an industrial disease.
In 1915, the "Workmen's Compensation Board" was created in Ontario.1 (The Board was later renamed the "Workers' Compensation Board.") Since then, the Board has had the responsibility, in regard to workers employed in industries covered by the compensation system, of adjudicating claims made by workers for injuries at work.
When a compensation claim is presented to the Board, the Board investigates and decides whether to award compensation and the nature of any compensation benefits to be awarded. These decisions may be appealed to various appeal bodies within the bureaucracy of the Board. Since 1985, a further appeal has been available to the Workers' Compensation Appeals Tribunal, an independent, tripartite tribunal designed to hear appeals from final decisions of the Board.2 Beyond this, the Board has the power to order the Tribunal to reconsider any of its decisions, but this power has been exercised rarely.3
Since the system was created in 1915, workers have been entitled to compensation if their "industrial diseases" are "due to the nature of any employment in which the worker was engaged." The current section 134 of the Act provides:
134 (1) Where a worker suffers from an industrial disease and is thereby disabled or his or her death is caused by an industrial disease and the disease is due to the nature of any employment in which the worker was engaged, ..., the worker is or his or her dependents are entitled to compensation as if the disease was a personal injury by accident and the disablement was the happening of the accident ....
When proclaimed in 1915, the Workmen's Compensation Act included Schedule 3, which was a list of diseases that were to be presumed to be due to work unless the contrary were proven. Since then, various revisions to the Act have altered the manner in which industrial diseases are adjudicated. For example, in 1963 a provision was added to the Act that permitted compensation not only for accidents that happened at work but also for "disablements" that were due to work.4 In 1985, the Act was amended to allow for the insertion of diseases onto a newly-created Schedule 4.5 Where a worker has a disease listed on Schedule 4 and was exposed to the corresponding process listed on the schedule, then the Act requires that the worker must be compensated for that disease.
As a result of these statutory provisions, there are now four different ways in which an industrial disease claim may be adjudicated by the Board. These are discussed below.
As a result of the addition of the concept of "disablement" to the Act in 1963, it is now possible for a worker to be compensated for a disease if the disease is a disabling condition that arose out of the worker's employment. When determining whether an injured worker deserves compensation for a "disablement," the standard of proof is the civil standard of proof, which is proof "on a balance of probabilities."6 The "balance of probabilities" test must be supplemented, however, with the recognition that if the evidence is equal in weight, the claim should be determined in favour of the worker.7
To prove that a worker's disease is a compensable disablement, the worker must, at least, show that there is an "association" between the disease and the work.8 The worker must also show that the workplace contributed significantly to the development of the disease. (The "significant contribution" test has been accepted by the Workers' Compensation Appeals Tribunal9 and is very similar to the test used in the courts, but the Workers' Compensation Board had not officially declared that this is the test that it will use when it adjudicates compensation claims. The Board has not, however, suggested that any other test might be more appropriate than the "significant contribution" test, nor has the Board exercised its power, under s. 93 of the Act, to review any of the Tribunal's decisions on this point). A "significant contribution" was found in one case where as little as 25% of the worker's disease was work-related.10 A worker's disease may be found to be due to work despite the worker having had an unusually high susceptibility to the development of the disease.11 A worker's disease may be found to be a disablement even if the disease was the result of the "synergy" of many different minor exposures in the workplace.12
As well, when adjudicating disease disablement claims, it is appropriate for epidemiological studies to be consulted.13 However, these scientific studies alone do not determine the issue of whether the disease is compensable, since disablement may be compensable even if the medical experts have not offered a firm medical opinion supporting the worker's theory of causation.14 A disablement may be compensable despite the lack of an accepted diagnosis for the workers' condition.15 Compensation may be granted even if the scientific evidence is debatable.16
The Board has the authority to create guidelines and policies to assist its adjudicators who decide whether a worker's disease is to be compensated. These guidelines promote consistency in the manner in which industrial disease claims are adjudicated. Usually, these guidelines are used when adjudicating "disablement" or disease claims on a case-by-case basis (as discussed above), although it is also possible for the Board to create guidelines to assist when adjudicating claims for diseases that are listed on schedules 3 or 4 (discussed below).
Schedule 3 of the Workers' Compensation Act Regulations17 lists diseases and associated work processes. Where a worker suffers from one of the diseases listed on Schedule 3 and can show that he or she, in the workplace, was exposed to the Schedule's associated work process, then the following presumption applies.
134. ...
(9) If the worker at or before the date of the disablement was employed in any process mentioned in the second column of Schedule 3 and the disease contracted is the disease in the first column of the Schedule set out opposite to the description of the process, the disease shall be deemed to have been due to the nature of that employment unless the contrary is proved.18
When an adjudicator decides whether to award compensation for such a scheduled disease, the adjudicator would first determine whether the claimant has the disease and if the claimant was engaged in the corresponding industrial process. If these conditions are satisfied, the adjudicator would be required to "presume"19 that the disease is compensable.20
This does not end the inquiry, however, since the statute states that:
"the disease shall be deemed to have been due to the nature of that employment unless the contrary is proved" [emphasis added].
This directs the adjudicator to ask21 whether there is any other information that demonstrates that the disease was not connected with work. If evidence of this sort "proves the contrary", then the disease is no longer presumed to be due to work and compensation will be denied.22
There continues to be some uncertainty about the amount of evidence that must be produced in order to rebut a Schedule 3 presumption. Nevertheless, the current law in Ontario is that when rebutting the Schedule 3 presumption, one must prove, with clear and convincing evidence, that the workplace was not a significant factor in the occurrence of the worker's disability.23
Schedule 4 of the Workers' Compensation Act Regulations24 lists diseases and associated work processes. Where a worker suffers from one of the diseases listed on Schedule 4 and can show that he or she, in the workplace, was exposed to the Schedule's associated work process, then the following irrebuttable conclusion applies.
134. ...
(10) If the worker at or before the date of the disablement was employed in any process mentioned in the second column of Schedule 4 and the disease contracted is the disease in the first column of the Schedule set out opposite to the description of the process, the disease shall be conclusively deemed to have been due to the nature of that employment.25
When an adjudicator decides whether to award compensation for an industrial disease that is listed on this Schedule, the adjudicator would first determine whether the claimant has the disease and if the claimant worked in a workplace that exposed the claimant to the corresponding industrial process in the Schedule. If these conditions are satisfied, the adjudicator must conclude that the disease is compensable.
The above is a very brief account of Ontario's workers' compensation system as it relates to industrial diseases. For further about this compensation system, see, for example, Dee, McCombie, Newhouse, Butterworths Workers' Compensation in Ontario Service (Toronto: Butterworths, 1993). For further information about how the Workers' Compensation Appeals Tribunal adjudicates disease claims, see Carol Trethewey's paper entitled "The Workers' Compensation Appeals Tribunal; adjudicating industrial disease claims", at pp. 13ff. in this volume.
by Carole A. Trethewey
In 1985, the Workers' Compensation Act was substantially amended. One of the major innovations was the creation of two independent agencies, the Workers' Compensation Appeals Tribunal1 and the Industrial Disease Standards Panel.2 The companion paper written by Christopher Leafloor outlines the mandate of the I.D.S.P. and the parameters of its role in advising the Workers' Compensation Board on industrial disease. The I.D.S.P. operates at a policy level, identifying industrial diseases, their distinguishing criteria and what, if any, presumptions should apply to them. Its recommendations do not directly affect the adjudication of cases unless they are generally adopted by the Board or are accepted as evidence in a particular case before the Board or Tribunal.
The Appeals Tribunal, on the other hand, operates at the case level. Its statutory mandate is to hear appeals from final Board decisions in individual cases. I have been asked to review some examples of the Tribunal's decision-making in industrial disease appeals. In order to put these examples in perspective, it is first necessary to explain the legal context in which the Tribunal operates and the factors which influence its decision-making.
The major impetus for the Tribunal's creation was the desire to provide for an outside review of Board decisions by an independent, specialized tripartite body after the Board's internal appeal processes were exhausted.3 The Tribunal's focus, therefore, is on decision-making. Unlike most Ontario administrative tribunals, the Tribunal is required by law to provide written reasons for all its decisions.4 The Tribunal has adopted a set of hallmarks of good-quality adjudicative decisions to assist it in discharging this obligation.5 The hallmarks set out the Tribunal's commitment to providing a full explanation of the reasoning on which its decisions are based.
The Board is required by law to implement the Tribunal's decisions. The only exception to this applies to decisions which turn on an interpretation of the "policy and general law of the Act". Under s. 93 of the Act, the WCB Board of Directors has a discretion to review the Tribunal's interpretation in such cases.6 If the Board of Directors comes to a different conclusion on the interpretation issue, it may direct the Tribunal to reconsider its decision in light of the Board's determination. To date, the Board has only conducted two Board of Director reviews, neither one dealing with industrial disease.
The Tribunal itself has no policy-making jurisdiction. It does not even have the ability to decide which cases merit a hearing, since appeals under the Workers' Compensation Act are as of right.7 However, the Tribunal's decisions may indirectly affect policy, by prompting a Board of Directors' s.93 review or, more informally, by identifying areas which would benefit from policy development by the Board, the I.D.S.P. or others. An example of this involves chronic obstructive lung disease (COLD). Several Tribunal decisions dealing with COLD and dust exposure8 have prompted broader interest in this area.
The Tribunal's interpretation of what the law requires may also have an impact on the types of policies which the Board can develop under the Act. For example, Decision No. 257/89 generally approved the Board's policy on lung cancer in gold miners, but held that the policy could not be used to fetter the Board's discretion, and that cases which fell outside the policy criteria still had to be reviewed on their merits.9
Industrial disease cases involve workplace exposure to harmful processes or substances. The Tribunal's general approach is to find entitlement to compensation where a worker's condition falls within either the statutory definition of "industrial disease" or the "disablement" branch of the statutory definition of "accident".
Industrial disease is defined in s. 1(1) of the Act in the following terms:
(n) "industrial disease" includes,
(i) a disease resulting from exposure to a substance relating to a particular process, a trade or occupation in an industry,
(ii) a disease peculiar to or characteristic of a particular industrial process, trade or occupation,
(iii) medical condition that in the opinion of the Board requires a worker to be removed either temporarily or permanently from exposure to a substance because the condition may be a precursor to an industrial disease, or
(iv) any of the diseases mentioned in Schedule 3 or 4, ("maladie professionnelle")
Subsection (iv) of the definition is rarely in issue at the Tribunal level. There have been only a few cases involving Schedule 3 - typically, where there is a dispute as to whether the Schedule applies to the facts of the case. This may happen where the description of the disease is very general (e.g. "poisoning and its sequelae by lead"10). To date there have been no appeals under Schedule 4, which only recently came into existence.
As an alternative to listing diseases and processes in Schedules 3 and 4, the Board has developed a number of policies on particular industrial diseases and exposures. These policies tend to be very detailed, and cases which fall within them are adjudicated rapidly at the Board level. Appeals to the Tribunal involve cases which fall outside the four corners of a policy. In the absence of a Board policy, the Tribunal has been cautious in considering whether non-scheduled diseases are "industrial diseases" as defined by subsections (i) or (ii). This has been seen as requiring a general finding that a disease is related to an occupation in a particular way.
Decision No. 85011 , one of the first industrial disease appeals, noted that the Board has traditionally required a complex medical and scientific analysis based on statistical or epidemiological evidence in order to find a general relationship between a disease and a process. This type of broad review is seen to be more appropriately conducted by the I.D.S.P. or the Board. However, cases in which there is insufficient statistical or epidemiological evidence to establish a general relationship may still be compensable if the evidence establishes that the individual worker suffered a "disablement arising out of and in the course of employment".
Subsequent Tribunal decisions have followed the analysis in Decision No. 850. Accordingly, in approaching disabilities alleged to arise from workplace exposure, the Tribunal's focus is usually on the question of whether the disability is compensable under the "disablement", rather than the "industrial disease", provision of the Act.
It should be noted that "disablement" itself is not defined in the Act. It appears as part of the definition of "accident" in s. 1(1) which provides that "'accident' includes a disablement arising out of or in the course of employment." The Tribunal has held that "disablement" refers to any injuring process, including an industrial disease, which arises out of and in the course of employment and is not covered by other more particular aspects of the definition of "accident".12 As a practical matter, it is not necessary in most cases to determine whether an injury is an "industrial disease", a "disablement", or some other type of "accident", since usually little turns on this. The distinction is only important in limited circumstances, such as where the outcome of an appeal depends on the application of a presumption clause.
In deciding whether exposure to a workplace substance or process caused personal injury to a worker, the Tribunal will ask itself the same question which it asks in all entitlement cases: was the workplace a significant contributing factor to the worker's disabling condition? This test is drawn from the common law governing personal injury cases, which has established that a disability need not result solely from an accidental injury. It is sufficient if the accident made a "material" contribution to the disability.13 This analysis also accords with early workers' compensation cases decided in England and Canada, which asked whether the work being performed by the worker "helped in any material degree" to cause the injury.14 Thus, the fact that workers have a pre-existing condition, or "thin skull", which makes them more vulnerable to an injury will not disentitle them if the workplace also made a significant contribution to the disability.
Other papers have discussed different models of decision-making and causation. As a statutory adjudicative body, the Tribunal's approach to decision-making flows from its interpretation of the legal requirements found in the Workers' Compensation Act and the applicable common law, particularly the administrative law requirements relating to natural justice.
The overriding direction is set out in s.73(1) of the Act, which applies equally to the Tribunal and the Board:
73(1) Any decision of the [Tribunal] shall be upon the real merits and justice of the case, and it is not bound to follow strict legal precedent but shall give full opportunity for a hearing.15
The Tribunal has interpreted this provision, when read in light of its statutory investigative powers and its ability to make any order which the Board could make in the first instance,16 as requiring it to make decisions de novo. In deciding appeals in industrial disease cases, the Tribunal will decide what, in its view, the correct result should be based on the facts and the applicable law - that is to say, what the Tribunal finds the "real merits and justice of the case" require.17 The statutory obligation to decide on the real merits and justice causes the Tribunal to be more active in investigating cases than is usual for appellate adjudicative bodies.
Other factors which assert a major influence on the Tribunal's decision-making are:
While the Tribunal routinely exercises its statutory power to obtain expert medical assistance, its decision-making is based on a tripartite legal model, rather than a medical model. Tribunal decisions are made by three-member panels, consisting of a member representative of workers, a member representative of employers, and a neutral vice chair.18 Panel members are lay adjudicators, in the sense that they are not appointed for their medical expertise. However, in the course of their adjudicative activities, panel members are regularly exposed to medical evidence and theory, and develop expertise in assessing and weighing such evidence, and in directing further medical and scientific investigations.
The tripartite structure provides the Tribunal with a number of advantages in decision-making. While all adjudicators are required by law to render impartial decisions, representative members contribute a practical perspective and experience in the workplace, as well as a familiarity with issues of current concern to their communities.
The Tribunal's Members' Code of Professional Responsibility19 helps ensure that the Tribunal gets the full benefit of this tripartite structure. Members are committed to deciding each case on the real merits and justice based on the law and the evidence received in that case. They are also committed to approaching appeals with an open mind and to discussing issues fully with their panel colleagues. Considerable time is spent in caucus and in the drafting process trying to resolve issues of concern to all members. Where agreement is not possible, a dissent explaining the reasons for disagreement is written.
The panel members' commitment to these standards has produced a working environment where all three members contribute to a decision as adjudicators, not as partisan advocates. The Tribunal refers to this form of tripartism as "collegial tripartism".
The Tribunal has the responsibility for deciding causation questions based on legal principles. While expert medical and scientific evidence is of great importance, it is only part of the evidence which the Tribunal must weigh in reaching a decision on the facts of a particular case.
In addition to general scientific, medical or epidemiological evidence, the Tribunal will consider the individual circumstances of the worker, the risks posed by the employment, the risks posed by other aspects of the worker's life, the medical opinions of the worker's treating doctors and any other evidence peculiar to the worker and the workplace. A recent example of this approach is found in Decision No. 645/93,20 which holds that entitlement to benefits can be granted in the absence of supportive epidemiological evidence, if there is persuasive medical and non-medical evidence which satisfies a panel that, more likely than not, there is a causal relationship between the work and the disability.
The Tribunal's analysis is in keeping with that taken by the courts in cases involving similar causation problems, such as those arising in medical malpractice and toxic tort cases. The Supreme Court of Canada has recently held that scientific evidence is not determinative of causation. It is one piece of evidence to be weighed with the rest.21
Another important legal principle which affects the Tribunal's decision-making is the standard of proof which must be applied in reaching decisions. The normal standard of proof in civil cases is the balance of probabilities. A plaintiff in a medical malpractice case, for instance, must prove that it is more likely than not that the doctor's actions or omissions caused the injury. This is sometimes expressed as requiring the plaintiff to prove his case to a 51% level of confidence. Although the standard of proof is modified in some respects by the Workers' Compensation Act, in most industrial disease cases panels will ask whether the worker's condition has been caused, more probably than not, by the workplace.22
Two comments need to be made about the legal standard of proof. First, it is generally a lower standard than that required by the medical or scientific community. Scientists often require a standard of certainty, or near certainty, to be satisfied of a causal connection.23 When medical practitioners are deciding whether to recommend a dangerous and intrusive treatment procedure, they too require a very high standard of satisfaction. However, the Tribunal's experience has shown that the medical profession's standard may vary depending on the potential consequences of a decision. Doctors may make decisions on the basis of something akin to the balance of probabilities where they are recommending a relatively safe procedure, such as over-the-counter headache medication.
When doctors are aware that a potential consequence of their diagnosis may be entitlement to workers' compensation benefits, the level of confidence they apply in reaching their conclusions varies. The Tribunal needs to understand the subjective standard of proof which individual experts are applying when the Panel is reaching its conclusions on a balance of probabilities. For this reason, Panels will frequently ask experts to indicate how confident they are in expressing their opinions, and whether there are alternative explanations for a worker's condition.
It is also important for the Tribunal to keep in mind the difference between the needs of the medical profession in treating a disease, and of the compensation system in adjudicating a claim. The cause of a condition may have no impact on its treatment. In many cases, a doctor will need to make an early working diagnosis in order to begin treatment. This diagnosis is refined and may change over time. Compensation appeals involving an imprecise or evolving diagnosis can cause adjudicative problems, even though the condition was properly treated at the time.24
While it is not necessary for the Tribunal to be satisfied of a specific diagnosis in order to award compensation, a specific diagnosis which indicates a high correlation with a particular exposure can be of great assistance in determining causation.25 When the medical experts disagree about the proper diagnosis, a worker may still be found to be covered by the Act where the Panel is satisfied on cogent circumstantial evidence that, more likely than not, the work exposure was a significant contributing factor to the disabling condition.26
A second important consequence flows from the legal standard of proof. The fact that the balance of probabilities is sometimes expressed as 51%, may cause confusion in cases where the evidence is also expressed in percentages. This is more likely to happen in industrial disease cases than in other types of cases, since epidemiological and scientific evidence is often expressed in percentages and ratios.
Epidemiology is the study, control and prevention of disease in the population as a whole, or defined groups thereof, as distinguished from disease in individuals.27 Epidemiological studies can demonstrate a statistical association between a disease and the exposure or risk of the population studied. They cannot prove causation in a particular case. As noted in several Tribunal decisions, the weight to be accorded to a study will depend on the extent to which causation can be inferred from the statistical associations in the study, and the extent to which the individual's circumstances are comparable to the population studied.28
There is some American literature discussing the tendency in U.S. courts to use epidemiological evidence to answer both the question of what must be proved, and also the standard of proof which must be met.29 Epidemiological studies may be required to show a two-fold increase in the incidence of a disease before causation in a particular case is found. A two-fold increase is equated to proof of causation on a balance of probabilities.30 This approach has been criticized by some American writers as robbing the legal standard of proof of its meaning, and also encouraging overly simplified quantitative rules and limits on the type of evidence which courts consider.31 Interestingly, an American epidemiologist has recently expressed the view that the legal standard of proof used in American tort litigation is too high. Another concern he voices is that epidemiological and legal proof often do not consider the role of individual susceptibility, probably because this is so difficult to measure.32
The law in Canada requires a broad approach to evidence, rather than reliance on statistical assessments of risk. The Supreme Court of Canada considered the use of medical and statistical evidence in two recent medical malpractice cases, Snell v. Farrell33 and Laferriere v. Lawson.34 In Laferriere, in particular, the Court made clear that statistical evidence or test samplings are not binding on an adjudicator. The fact that a particular procedure has a 50% or 25% chance of success, does not answer the legal causation question.35 All of the evidence in the case must be considered.
This is not meant to suggest that scientific evidence is unimportant. In some cases, epidemiological evidence may be the best evidence available on the link between a disease and a worker's employment. This may happen when there is little medical or other evidence about a particular worker, other than that he falls within a cohort of workers covered by a study.36
A question related to the standard of proof, is the burden of proof: who has the onus of adducing evidence first and, assuming some shortfall in the evidence, who bears the loss? This is an issue of considerable importance in the common law setting. Typically, in a civil action the plaintiff must present his or her case first and will lose if the case does not satisfy the judge on a balance of probabilities. The common law has developed certain conventions or presumptions, to assist plaintiffs in appropriate circumstances. In the tort context, there has been some consideration of a reversal of the onus of proof once a plaintiff has adduced evidence that the defendant has subjected him or her to an increased risk of injury and the injury has occurred. The leading case on this, McGhee v. National Coal Board,37 an English House of Lords decision, involved an industrial disease claim in which it was argued that the employer had breached its duty to provide adequate washing facilities, thereby increasing the worker's risk of dermatitis.
McGhee has subsequently been held by the House of Lords not to shift the onus of proof once the plaintiff has proved that the defendant created a risk of injury; rather, adjudicators must take a "robust and pragmatic approach" to the primary facts of the case.38 This has been recently affirmed by the Supreme Court of Canada in Snell, which emphasized that legal causation decisions are a matter of common sense, and that decision-makers should not be reluctant to draw inferences from the facts presented to them.39 Snell left open the possibility that McGhee might be revisited, if traditional causation principles resulted in plaintiffs being denied compensation unfairly.
Snell's emphasis on the need for a common-sense approach and for adjudicators to draw inferences and come to legal conclusions even where there is medical uncertainty, applies directly to the Tribunal's handling of questions of fact. A good example of this is Decision No. 47/91,40 a case involving chronic obstructive lung disease (COLD) and exposure to dust. The Panel discusses, in some detail, how it applied the principles set out in Snell and Laferriere to the conflicting medical evidence in that case.41
Snell's discussion of the onus of proof is less relevant to causation issues in workers' compensation cases for two reasons. First, the Tribunal conducts investigatory rather than adversarial proceedings. Neither the worker nor the employer technically has the burden of adducing evidence, although both parties have the right to adduce evidence and make submissions. Where there is a gap in evidence, the Tribunal will consider the possibility of obtaining further evidence through the use of its own investigatory powers, rather than automatically deciding against one party or the other based on the onus of proof.
Secondly, the Act has created its own presumptions and standards which the Tribunal must apply in deciding cases. In industrial disease cases which are adjudicated as disablements, the normal civil standard of proof on the balance of probabilities has been modified. Section 4(3) provides that where it is not practicable to determine an issue because the evidence for or against the issue is approximately equal in weight, the issue shall be resolved in favour of the claimant.42 Thus, by statute, the benefit of doubt goes to the worker.
Section 4(3) may be particularly important in industrial disease cases, where there are conflicting opinions from medical experts, or where the exact details of the worker's exposure to dangerous workplace substances cannot be ascertained. Decision No. 47/91, Decision No. 206/89 and Decision No. 909/90 are good illustrations of this. However, the benefit of the doubt does not assist a worker where the etiology of the disease is unknown and there is no evidence of connection to the workplace.43 It has been held that the benefit of the doubt is intended to assist where the evidence is equally persuasive for and against a workplace connection, not where there is mere supposition that workplace exposure caused the worker's condition.44
The Act has also established a structure to assist with the proof of claims related to exposure to workplace substances or processes which are generally accepted as being associated with diseases. The Act allows the WCB to "schedule" such diseases. This brings into play certain presumptions in favour of the worker. The role of the scheduling of diseases and the presumptions associated with the schedules are discussed in some detail in Christopher Leafloor's paper. Basically, section 134(9) provides that industrial diseases which are covered by Schedule 3 "shall be deemed to have been due to the nature of the employment unless the contrary is proved." There have been very few Tribunal cases dealing with how Schedule 3 applies to the facts of a particular case. One case has held that the reference in Schedule 3 to lead poisoning and its sequelae does not assist a worker if there is no evidence that the worker's condition could be a sequela of lead poisoning.45
Pursuant to section 134(10), diseases covered by Schedule 4 "shall be conclusively deemed to have been due to the nature of the employment." As mentioned earlier, there have been no Tribunal cases under Schedule 4.
The Board has also adopted a number of written policies governing the adjudication of particular industrial diseases. The gold miners' policy is a good example. While these policies do not have the benefit of the statutory presumptions which apply to scheduled industrial diseases, in practice they function much the same. Claimants who fall within the scope of the policy are compensated in a speedy fashion by Board adjudicators, without the need for adducing complicated scientific and medical evidence.
Cases which do not satisfy the standard criteria set out in such policies must still be adjudicated on their merits.. In those cases the policies operate as guidelines which assist adjudicators in weighing the evidence. For example, Decision No. 257/89 found that a gold miner, who was denied entitlement by the Board because his work experience did not match the policy's criteria, was nevertheless entitled to compensation when it was shown that he performed a job with analogous dust exposure. The Panel remarked that, regardless of the advantages of the Board's guidelines, or the relative liberality of the policy's criteria, the Act still required a decision about causation to be made on the merits of the individual case.46
Another important contributor to the Tribunal's decision-making is its ability to undertake independent investigations where this is necessary to decide the real merits and justice of a case. This can be especially important in industrial disease cases, where the facts relating to exposure may be obscure, or where there are competing medical or scientific opinions. The Tribunal uses its investigative powers in a non-partisan way, based on the needs of the Panel adjudicating the matter.47
Independent medical investigation may occur at several stages. The Tribunal has on retainer seven Medical Counsellors, who are physicians with substantial academic and practical experience. The disciplines covered include otolaryngology, neurosurgery, orthopaedic surgery, psychiatry, internal medicine, ophthalmology and general surgery. The Counsellors act in an advisory capacity to the Tribunal. They do not themselves testify at a hearing or give expert medical opinions for use in specific cases. Instead they play an important role in assuring that the medical evidence before the Tribunal is reasonably complete and current, and comes from appropriate experts.
Pre-hearing, the Counsellors assist the Tribunal's Medical Liaison Office (which is part of the Tribunal Counsel Office) in identifying cases which require additional medical or scientific evidence and in suggesting how and from whom such evidence might be obtained. Post-hearing, the Counsellors perform an audit of released decisions involving medical issues, in order to suggest how the Tribunal might improve its understanding or handling of similar medical issues in future cases. For example, the Counsellors may identify the need for a background discussion paper to provide a general explanation of a medical condition to panels and parties, or they might suggest that a medical expert be called to testify in a future case. If a medical condition is frequently appealed to the Tribunal, a Counsellor might provide a training session on the condition to Tribunal panel members and staff. A training session has also been conducted by one of the Counsellors on how to evaluate medical evidence from a medical perspective.48
If expert testimony in a particular case is useful, it is transcribed, anonymized, and re-used in other cases. Documents which may be of general interest - such as medical discussion papers, transcripts of expert testimony, reviews of medical/scientific literature, and expert opinions obtained for use in particular cases - are anonymized and placed in the Tribunal's Library and are available for public use.
The Tribunal also has a roster of medical practitioners, appointed by order-in-council under the Act, who it can call on to "obtain ... assistance ... at such time or times as it thinks fit so as to better enable it to determine any matter of fact in question in any application, appeal or proceeding."49 These physicians are called medical assessors, and are the doctors who are most frequently asked by the Tribunal to provide expert evidence at Tribunal hearings. Where it appears that a different expert would be more qualified to provide an opinion, the Tribunal can use its general investigative powers to obtain evidence from other sources.
Medical investigations can be conducted pre-hearing when the Tribunal Counsel Office (TCO) is satisfied, based on the Medical Counsellors' comments, that additional evidence will clearly be required. More commonly, however, the Panels decide what additional medical evidence is necessary and issue instructions to TCO to obtain it. All evidence obtained by the Tribunal is sent to the parties for submissions.
Obviously, the evidence which can be obtained for the purposes of deciding a single case is not as extensive as that which the I.D.S.P. could obtain in order to formulate a policy of general application. The costs of the investigation, the likelihood that relevant evidence will be obtained, the likely importance of the evidence to the outcome, the extent of the delay which must be borne by parties who already have undergone a lengthy appeal process at the Board, and the use which might be made of the evidence in other cases, are all factors which are weighed in determining which cases to investigate and what type of investigation to order.
In Decision No. 909/90,50 the Panel was presented with conflicting medical evidence about a possible relationship between rheumatic fever and dampness. The Panel had undertaken some medical investigations which had added about seven months to the process. While other expert evidence could have been obtained, this would have added further delay. The Panel held that the "real merits and justice" principle required the Panel to consider not only the adequacy of the evidence but also whether "justice" required a halt to further delays. The Panel decided that reasonable efforts had been made and had resulted in a substantial evidentiary base for decision in that case. Future cases could address the possibility of obtaining further evidence.
In an industrial disease context, exposure data is another type of evidence which may be extremely relevant, but difficult to obtain. The Tribunal will determine if there is reason to believe further investigations would be possible and helpful to the determination of the issues in dispute.51 If there is a reasonable prospect of further probative evidence, the Panel may direct that inquiries be made with the Ministry of Labour, the employer, the union, an industrial or occupational hygienist or any other likely source of information.
Even in relatively straightforward cases, there will always be some extra evidence which could be obtained. Generally, a panel will order further investigation where there is insufficient evidence to make a reasonably informed decision and there is a reasonable likelihood that further investigation will disclose important, relevant evidence.52 In deciding whether there is good reason to order further investigation, a panel will consider a number of factors including:
The Supreme Court of Canada has itself acknowledged the difficulty, faced by many Tribunal panels, of adjudicating legal claims where the evidence is scarce or inconclusive.54 This may happen for any number of reasons in an industrial disease case - the working conditions may have improved over time, so that it is no longer possible to measure exposure levels, or there may be a number of conflicting medical opinions, or no studies may have been performed on comparable situations.
Unlike the scientific community, which can choose its issues and wait for studies to be completed and for a consensus on causation to develop, the Tribunal is required by statute to make a determination for compensation purposes on the evidence available in a particular case. Given the time and resources necessary to produce an epidemiological study and the limited sources for funding, the absence of such a study cannot be taken as negating a causal connection.55 The Tribunal must examine all of the evidence before it and make an informed and pragmatic decision on the balance of probabilities. This was the legal approach contemplated by Weiler in the 1980s, when he proposed the creation of the Tribunal,56 and the Supreme Court of Canada has recently affirmed that this continues to be the correct approach to causation issues. In Snell v. Farrell, the Court unanimously held:
Causation need not be determined by scientific precision. It is, as stated by Lord Salmon in Alphacell Ltd. v. Woodward, [1972] 2 All E.R. 475 (H.L.) at p.490 ... essentially a practical question of fact which can best be answered by ordinary common sense rather than abstract metaphysical theory.57
The United States Supreme Court also recently commented in a similar vein on the differences between medical and legal causation:
Yet there are important differences between the quest for truth in the courtroom and the quest for truth in the laboratory. Scientific conclusions are subject to perpetual revision. Law, on the other hand, must resolve disputes finally and quickly. The scientific project is advanced by broad and wide-ranging consideration of a multitude of hypotheses, for those that are incorrect will eventually be shown to be so, and that in itself is an advance. Conjectures that are probably wrong are of little use, however, in the project of reaching a quick, final, and binding legal judgement-often of great consequence-about a particular set of events in the past. We recognize that in practice, a gatekeeping role for the judge, no matter how flexible, inevitably on occasion will prevent the jury from learning of authentic insights and innovations. [Note: This comment was directed to the judge's role in deciding the admissibility of evidence.] That, nevertheless, is the balance that is struck by rules of evidence designed not for the exhaustive search for cosmic understanding but for the particularized resolution of legal disputes.58
Because the Tribunal may be required to reach a compensation decision before the medical and scientific community has reached a consensus on causation, the question sometimes arises of how much weight to place on evidence of a developing medical or scientific theory. This is an issue which has been the subject of some judicial comment in both criminal and civil cases.
In the United States, courts have traditionally placed much emphasis on the requirement that expert scientific evidence meet a "general acceptance standard" in order to be admissible. Recently, the United States Supreme Court has reversed this, holding that expert scientific evidence need only be relevant and reliable to be admissible.59 The U.S. Supreme Court has set out a number of factors to consider in deciding whether a theory constitutes scientific knowledge, including whether the theory has been tested and whether it has been subject to peer review and publication. While general acceptance may not be required, it may nevertheless be relevant in determining reliability.
Canadian courts have not traditionally attempted to create a single standard of admissibility for novel scientific evidence.60 However, there are some indications in recent Canadian cases of an approach similar to the recent American one, which focuses on relevance and helpfulness. The fact that there is criticism of a particular theory goes to its weight, not its admissibility as evidence.61
A very recent decision of the Supreme Court of Canada has provided some further guidance on the admissibility of expert evidence about novel scientific theories. R v. Mohan62 held that the admission of expert evidence depends on the following criteria:
(a) relevance;
(b) necessity in assisting the trier of fact;
(c) the absence of any exclusionary rule, and
(d) a properly qualified expert.
The Court held that expert evidence which advances a novel scientific theory or technique is subject to special scrutiny to determine whether it meets a basic threshold of reliability and whether it is essential in the sense that the trier of fact will be unable to come to a satisfactory conclusion without the assistance of the expert. It was found that the trial judge had properly excluded expert evidence from a psychiatrist, in circumstances where the psychiatrist acknowledged that his experience treating three similar cases did not enable him to draw broad generalizations and there was no medical or scientific literature supporting his theory.
Since the Tribunal has the statutory discretion to consider evidence whether or not it is admissible in a court of law,63 the focus in Tribunal cases is on the weight to be given to evidence of developing medical knowledge rather than on admissibility. The weight given to a scientific theory will vary, depending on the qualifications of the expert advancing it, the extent of the medical literature and scientific studies supporting it, and so on. In deciding how much weight to give to a theory, the Tribunal may seek further expert medical opinion and will often request a review of the medical literature by a medical assessor. For example, in Decision No. 464LR,64 the worker had requested a reconsideration based on an article describing four case studies which suggested a link between cluster headaches and trauma. The Tribunal referred the article to the head of the neurology department at a Toronto hospital. The specialist provided a review of the medical literature and also an expert opinion on where the theory sat in the spectrum of medical opinion. The Panel accepted the expert evidence that the evidence for a causal connection between the cluster headaches and the trauma was no more than "an intriguing speculation that has not met general acceptance", and declined to re-open the decision.
However, where there is more substance to a developing theory and the evidence relating to the worker's personal situation supports a relationship, a causal connection may be found. In Decision No. 859/89, the Panel had asked an expert medical assessor to provide a written report and also testify about a possible connection between dust exposure at work and COLD. The expert reviewed the medical literature and testified that while there was not enough evidence to find a definitive association between COLD and dust, more recent studies were suggesting an association and "we're moving along the spectrum from it's a vague possibility into the possible/probable."65 Based on the general medical developments and the facts of the particular case, the expert was of the opinion that workplace exposure was a significant contributing factor.
In finding that the workplace exposure was a significant contributing factor, the Panel relied on the worker's medical history and personal risk factors, the worker's treating physicians' opinion that there was a causal relationship, the recent epidemiological evidence and the Panel's understanding of the disease process, as well as the medical assessor's opinion.
The Tribunal has been called on to adjudicate many different industrial disease claims, so that the selection of examples is necessarily somewhat arbitrary. Only four decisions will be reviewed here: two dealing with lung cancer and exposure to asbestosis, and two dealing with whole-body vibration and back problems. These were chosen because they provide a good example of the types of evidence the Tribunal must assess, the use of the Tribunal's investigative powers, and the application of legal principles to the evidence. As well, the cases show the difference between adjudicating industrial disease claims where the Board has adopted a policy, and situations where there is no policy and the "disablement" analysis is applied. These cases were also chosen because they illustrate the Tribunal's incremental approach to industrial disease adjudication. While the Tribunal has not formally designated any of these cases as leading cases, cases in which the Tribunal has commissioned significant investigations and conducted an extensive review of expert evidence are usually influential in subsequent cases. The final decisions are available to the public and can be used as a base for analyzing similar issues or developing different approaches. The expert evidence available to Tribunal panels on particular medical issues steadily evolves as it is refined and updated on a case-by-case basis. In both sets of examples, the first decision is based on an unusually extensive medical and scientific investigation, on which the second decision builds.
Decision Nos. 134/8966 and 375/9267 considered the connection between workplace exposure to asbestos and lung cancer. The workers in both cases smoked. The cases were further complicated by the fact that the workers did not have asbestosis, and there was conflicting medical evidence about the significance of this.
Decision No. 134/89 was not the first Tribunal decision to consider lung cancer and asbestos, but it represents the Tribunal's most extensive investigation and review of expert evidence on this subject to date. Decision No. 375/92 then built on the analysis and expert evidence contained in Decision No. 134/89 and in earlier Tribunal decisions. Both decisions considered the Board policy on lung cancer, which provides in part:
Lung cancer in asbestos workers is accepted as an industrial disease under sections 1(1)(n) and 122 of the Act as peculiar to and characteristic of a process trade or occupation involving exposure to asbestos.
Based on medical studies, lung cancer claims are favourably considered when the following circumstances apply:
- there is a clear and adequate history of at least ten years occupational exposure to asbestos, and
- there is a minimum interval of ten years between first exposure to asbestos and the appearance of lung cancer.
Claims which do not meet these guidelines will be individually judged on their own merit, having regard to the intensity of exposure and other factors peculiar to the individual case.68
Since the Board had already adopted a policy on lung cancer and asbestos, it was not necessary for the Panels to consider whether lung cancer in these circumstances was an industrial disease. The Panels referred to the policy as a guideline in assessing the evidence, while making clear that the policy was not determinative. It should be noted that while the Board's policy does not expressly refer to asbestosis, in practice Board adjudicators do consider whether there is evidence of asbestosis.
Decision No. 134/89 was unusually complicated as the Panel was initially confronted by the need to identify what dangerous workplace substances should be considered. Usually determining significant workplace exposure does not involve considering a large number of possibilities. In most cases, there are only one or two suspected substances. In Decision No. 134/89, however, the worker, who had died of lung cancer, had been exposed to a variety of substances with suspected or alleged carcinogenic implications. He also smoked approximately one pack of cigarettes a day for 23 years.
In an interim decision, the Panel issued directions to TCO and the parties regarding the further evidence it needed and how the evidence should be presented. A second interim decision was devoted to making factual findings on exposure with which the medical expert witnesses were to work. This second interim decision relied on documentary evidence, as well as on testimony from non-expert witnesses - the worker and several co-workers - and from expert witnesses - chemistry and engineering experts called by the worker and employer as well as an independent technical expert called by the Tribunal Counsel Office. The Panel also looked at the Report of the Royal Commission on Matters of Health and Safety Arising from the Use of Asbestos in Ontario (the Dupré Commission). The Panel acknowledged that the precise exposure was impossible to determine, but was satisfied that its findings, based on both anecdotal and expert evidence, were reasonably accurate.
Of all the substances potentially in issue, the Panel found that only two were carcinogenic and present at sufficient levels to be possible causes of the worker's lung cancer: asbestos and polycyclic aromatic hydrocarbons (PAH's). It directed that the further expert evidence be focused only on these two substances. The Panel also requested submissions on the synergistic effect between PAH's, asbestos and cigarette smoking.
At the final phase of the appeal, the Panel heard evidence from two medical experts, one an independent expert retained by TCO and the other an expert retained by the employer. Substantial documentary evidence, including statistical evidence and medical periodical articles, was again considered. There was general agreement between the two expert witnesses on a number of important issues including: the worker's workplace exposure to asbestos was low, the average latency period between death and exposure to asbestos is 25 years; the average latency period for cigarette smoking is also 25 years; at low levels a longer latency period is expected and vice versa; and there is a multiplicative rather than a synergistic effect between smoking and asbestos exposure. While both experts agreed that there was growing evidence in the medical literature that asbestosis generally precedes lung cancer, their reasons for this view differed. There were other areas of disagreement as well. In particular, the experts differed on whether there was any significance to the type of cancer cell or to its location in the lung.
The Panel also considered the worker's submissions that Board policy currently does not require evidence of asbestosis and that the I.D.S.P.'s recommendations regarding exposure should be applied.69 The I.D.S.P. had recommended that the Board reduce the exposure requirements in its policy from ten years to either five years or two years, depending on the dates of exposure. This recommendation was based on the view that, in most cases, quantification of asbestos exposure is extremely difficult and unreliable.
In the result, the Panel was unable to reach a unanimous decision. The majority identified the legal issue as being whether it was more probable than not that the worker's condition was caused by the workplace, or by non-occupational factors. Evidence on the comparative probabilities of risk associated with the occupational and non-occupational factors was used to assist the Panel in applying the legal probabilities test.
The majority found that the two most important "probability" factors in deciding causation were the latency period and the intensity of exposure. The worker satisfied the latency period specified in the Board's policy, but was at the low end of the range. The majority noted that this would tend to suggest that significant exposure was necessary, for the cancer to be due to asbestos.
The majority then considered intensity of exposure, which the Board had estimated in terms of length of exposure. The worker did not meet the Board's criteria of 10 years exposure, and the Panel rejected arguments that the criteria should be reduced in light of the I.D.S.P.'s recommendations. This reduction was not appropriate given the Panel's finding that the cumulative exposure of the worker in this case was slightly above the level that would place the probability of risk for a non-smoker at one in a million. The exposure was well within the limits which the Ministry of Labour considered to be safe.
The majority distinguished between the "prudent" preventive measures recommended by the Dupré Commission and the need to weigh probabilities in determining causation for compensation purposes. They concluded that the worker fell into the range of low probability of risk based on his limited exposure to asbestos.
While the majority noted that the absence of asbestosis and the location and type of cancer were more controversial and less important probability factors, they did consider these factors, both of which indicated a low probability of risk from asbestos exposure.
The majority then went through a similar analysis for cigarette smoking, and concluded the worker was in the high range of risk for cancer from this source.
Finally, the majority examined the possibility that the asbestos exposure was significant because of the way it interacted with the smoking. The majority accepted the evidence from both expert witnesses that a cigarette smoker who is exposed to low levels of asbestos is not at significantly greater risk than a smoker who is not exposed to asbestos. The contribution of the asbestos exposure (and of the PAH's, which were at even lower levels in the workplace) was minimal compared to the cigarette smoking. The smoking was found to be the only significant cause of the lung cancer.
The majority commented, obiter, that, in their view, length of exposure was not a particularly reliable measure of risk. If it is possible to quantify the nature or quality of the exposure, the majority felt that such quantification should be done. Only if this was not possible, would reliance on merely the length of exposure make sense. Given that the Panel had quantified exposure, there was no need to rely on duration of exposure under either the current Board policy or the I.D.S.P. recommendations.
The minority found that the benefit of doubt should be extended to the worker. The passage of time had made it impossible to clearly quantify the worker's exposure to asbestos since the company had abandoned its use many years earlier.
Decision No. 375/92 was released approximately half a year after Decision No. 134/89 and built on much of the analysis in the earlier case. The worker in Decision No. 375/92 was a carpenter who handled construction materials containing asbestos. There was evidence he smoked, but it was not clear how much. The length of asbestos exposure exceeded the Board's policy criteria of 10 years, and the latency period also met the policy guidelines. The claim had been denied because the worker did not have asbestosis.
Evidence before the Panel indicated that there was controversy as to whether an asbestos lesion is a necessary precursor to cancer, or whether lung cancer in asbestos-exposed workers can arise independently of scar formation. This disagreement existed even among the three Board medical consultants who had reviewed the worker's file.
The Panel considered pathological evidence from the worker's lung, as well as testimony from a medical specialist called by the worker to explain his theory of causation and comment on the "scar theory". The Tribunal Counsel Office supplied two medical reports from two respirologists who were also Tribunal medical assessors. Expert evidence indicated that there are no epidemiological studies concerning threshold or low levels of asbestos exposure that produce excessive risk.
To help quantify the intensity of the worker's exposure, the Panel asked the worker's representative to submit whatever documentary materials were available on the asbestos content of construction materials handled by the worker. Included in these materials was a report on the asbestos content of construction materials from an industrial hygienist with the American Carpenters' Union, and a 1991 study conducted on 757 carpenters. There was also a post-hearing report from the worker's medical expert reviewing a number of scientific articles on the controversy regarding asbestosis as a necessary precursor to asbestos-related lung cancer.
The Panel considered the Decision No. 134/89 analysis in detail, as well as five other Tribunal decisions on asbestos-related lung cancer and the Board's policy. After noting the difficulty of determining causal relationship when a disease has more than one cause, the Panel remarked:
Fortunately, the law does not require that we find the sole cause of the worker's disease. We are mandated to determine a significant cause of the disease. The question we must ask is whether, on the balance of probabilities, asbestos exposure was a significant contributing factor to the development of the worker's lung cancer.70
The Decision No. 375/92 Panel found Decision No. 134/89's framework of causal factors helpful: exposure, latency and, both more controversial and less important, asbestosis and location and cell type of cancer.
While the Board had not disputed the worker's exposure, which was in excess of 10 years, the Panel also considered the intensity of exposure, which was more difficult to quantify than duration. In concluding that the worker was exposed to hazardous levels, the Panel relied on general evidence about the construction industry from the Dupré Commission, the recorded testimony of an expert witness in another Tribunal case, evidence about the materials the worker worked with, and a pathology report on the worker's affected lung tissue.
As to latency, the Panel noted the expert evidence, which was accepted in Decision No. 134/89, that 25 years was the average latency period between first exposure to asbestos and death by lung cancer. However, this was not particularly helpful in Decision No. 375/92, as the worker was alive. Accordingly, the Panel relied on the Board policy requiring a minimum interval of ten years between first exposure and onset of lung cancer.
The Panel also referred to the location and type of cancer, but found this was not of assistance in this case. The type of cancer was connected with both asbestos and smoking, and the significance of its location in the lung was not clear.
The Panel felt that the primary controversy related to the significance of the fact that the worker did not have asbestosis. While Board policy did not specify asbestosis as a criterion, the Board adjudicators had appeared to treat its absence as determinative. Two of the expert witnesses stated that there is evidence in the literature that asbestos-related lung cancer can arise in the absence of asbestosis, but another expert stated there was no consensus on this.
While the Panel accepted that the presence of asbestosis greatly assists in determining etiology, in its view the absence of asbestosis did not outweigh the fact that the worker had been exposed to hazardous levels of asbestos and had satisfied the latency requirement in the Board's policy. On a balance of probabilities, the worker's exposure to asbestos was found to be a significant contributing factor to the development of his lung cancer.
The worker in Decision No. 559/8771 claimed that his premature degenerative disc disease (DDD) was caused by his job as a long-distance trucker, which exposed him to whole-body vibration. Since the Board has no policy on this, the Panel first asked whether exposure to whole-body vibration through long-distance trucking was an "industrial disease" under the Act. After deciding that there was insufficient evidence to establish this, the Panel considered whether the evidence indicated the worker had suffered a "disablement" and concluded that it did. On a balance of probabilities, the truck-driving had aggravated the worker's pre-existing back condition.
It is interesting to note the very extensive evidence which the Panel considered in this case on the issue of whether the "industrial disease" definition was met. In addition to evidence from the worker's family doctor, an orthopaedic specialist (who the worker saw at the Board's request), the Board's radiologist and the Board's surgical consultant, the Panel directed the Tribunal Counsel Office to arrange for a medical report, including a literature review, from a Canadian associate professor of surgery. The literature review showed that this was an issue of considerable interest in the medical/scientific community, and that there were numerous articles and studies on whole-body vibration. The specialist recommended that another expert, who had a Ph.D. in mechanical engineering and research and was an assistant professor of orthopaedics and rehabilitation at an American university, be called as an expert witness. This was arranged.
In addition to testifying at length about his experiments and the effects of repetitive loading on the spine, this expert witness also recommended two epidemiological studies: one conducted in the U.S. in 1976 and one in Finland in 1985. The Panel reviewed these studies and the way they were conducted, including their use of controls, in detail.
The technical expert testified that enforced sitting in a vibrating and bouncing environment can produce fatigue conditions in the disc and ligaments of the spine which can potentially damage the disc and lead to disc herniation. The Panel found that the expert testimony provided a scientific analysis of the mechanics of injury which would explain the epidemiological evidence that truck drivers experience a significantly higher risk of disc herniations. However, there was insufficient evidence to conclude that truck-driving was capable of causing degenerative disc disease as opposed to aggravating a pre-existing condition. There was also no evidence on what intensity of exposure over what period of time could reasonably be expected to produce damage.
The Panel concluded that before an industrial disease can qualify as a "compensable" industrial disease, the nature and length of the exposure which is required to cause must be known. The Panel commented: "Otherwise it will be impossible to establish in any particular case that the disability in that case was in fact due to the nature of employment in which that worker was engaged'."72 The Panel went on to state that it was satisfied that the extensive and prolonged scientific investigation that would be required to adequately explore the exposure-risk relationship is "not an investigative activity that falls within the scope of the Tribunal's investigative responsibilities as contemplated by the Act. The Act has established the industrial disease panel as the vehicle for major scientific studies of that nature."73
Decision No. 559/87 then considered whether the evidence established that the worker's employment as a long-distance trucker was a significant causal factor in the development of the worker's degenerative disc disease. While the evidence did not take the causal relationship between the driving and the DDD beyond the "merely possible", the Panel found, on a balance of probabilities, that the truck-driving at least aggravated a pre-existing condition and lead to the disc prolapse.
The effect of whole-body vibration on back conditions was reviewed and updated in Decision No. 373/91.74
The worker argued that his work for 35 years as a grader operator had caused a back disability in 1986-1987 or, alternatively, that a fall approximately 20 years earlier had caused the back condition. The worker appealed the Board's conclusion that the back disability likely resulted from the natural progression of the worker's DDD.
The worker had periodic back problems between 1968 and 1986, and the Panel reviewed the information available from the worker's family doctor, treating specialists and chiropractor. In the Panel's view, none of these sources really addressed the cause of the worker's condition. The worker's file had been reviewed by several Board doctors and medical consultants, who concluded that the worker's condition did not result from his fall. The worker's representative argued that the Board had never fully dealt with the question of whether the worker's job as a grader operator was a significant cause of his back condition, and referred to Decision No. 559/87 as support for the proposition that the enforced sitting in a bouncing environment on an uncomfortable seat could cause or aggravate the worker's back condition.
After the hearing, the Panel asked the Tribunal Counsel Office to obtain a further medical opinion on the worker's condition and to update the review of literature on whole-body vibration done for Decision No. 559/87. TCO asked for assistance from an assistant professor in orthopaedic surgery, who was also on staff with two Toronto hospitals. The expert advised that the present understanding of whole-body vibration and spinal disease had not changed significantly from the time the literature was reviewed for Decision No. 559/87. The medical expert also stated that the experimental methods used in the studies made them somewhat unreliable, so that one should be very cautious in drawing significant conclusions. There were still no firm about exposure/response relationships or how pathological changes occurred. Despite this, the expert felt that it was possible to conclude that there is an increased incidence of pain and disability in individuals exposed to whole-body vibration in the range of 5 hertz, and that there are strong indications that whole-body vibrations are involved in the pathophysiology of different spinal aberrations known or assumed to generate back pain and sciatica.
While the studies raised the possibility that whole-body vibration can cause back disability in some cases, the Panel noted that it had to consider both the probability of any contribution from whole-body vibration and the extent of any such contribution, in light of the facts of the case before it. The worker's exposure to whole-body vibration as a grader operator appeared different from that reviewed in the studies and in Decision No. 559/87. The worker was only in his grader a maximum of six hours per day, which was less than most long-distance truck divers. Also, some of that time was spent standing, which would decrease the effect of vibrations, and some time was spent simply waiting.
The Panel also considered the onset of the worker's back disability in 1986, the worker's treating doctors' opinions--some of whom supported a work-relationship but without explaining why--and the reasons given by the Board doctors and consultants for the view that there was no work relationship. The independent expert retained by the Tribunal largely agreed with the Board doctors, although he felt that whole-body vibration might have a "superimposed effect" on the worker's pre-existing condition and its inevitable degeneration over time.
The Panel concluded, that the "preponderance of evidence" established that the 1986 back disability did not arise out of and in the course of his employment. Even if whole-body vibration from grading had some superimposed effect, it made, at most, a minimal contribution and was not a significant cause of the worker's back condition.
Disabilities resulting from exposure to dangerous substances or work processes are an area of particular difficulty from an adjudicative perspective. As the examples illustrate, the application of the law to situations of medical and scientific uncertainty will never be without difficulty. Panels generally must consider a series of questions in industrial disease cases: What was the intensity and duration of the workplace exposure? What is the worker's condition? Are there any studies or other expert evidence generally linking the worker's condition and the exposure? Does the evidence in this particular case indicate that the exposure caused the worker's condition? Is there evidence of any other cause? If so, how significant is it compared to the workplace exposure?
The use of policies and schedules can speed adjudication of these issues, but does not do away with the requirement under the Act to decide difficult cases which fall outside the policies on their merits. This paper has attempted to explain the legal principles governing the Tribunal, and also some of the investigative techniques and analytical approaches the Tribunal uses to decide industrial disease appeals.
August, 1994
by John Risk
My focus in this paper will be on describing what sort of environment characterizes decision making in the area of compensation for occupational disease. I will discuss the implications that this environment has on how decisions should be made. Another concern of this paper is to identify the problems and the benefits associated with some of the conventional ways in which decisions are made in complex and uncertain environments. I argue that relying too much on either a very scientific style of decision making, or on one that relies solely on administrative rules and regulations is a mistake. Although, I do suggest that attention to certain rules is a good idea when compared to simply relying on science, or in the case where the decision making environment is highly uncertain. I will conclude the paper with a discussion of how the pitfalls of both the scientific and obsessively administrative approaches can be avoided.
The central point of this paper is that, much like countries do when they write constitutions, it is a good idea for decision makers to bind themselves to a certain set of procedures before they are confronted by a particular issue. I will elaborate on this below, but the basic point to keep in mind is that one way of wading through complexity and uncertainty is to have a plan agreeable to all parties and decided upon in advance. This helps to ensure both efficiency and fairness.
This is a short paper which means that I cannot go into great detail nor give a large number of examples. In many cases, the ideas discussed are done so in a very abstract or idealized way. What is lost in detail, I hope is gained in simplicity and clarity. My goal is not to tell people, step by step, how actual decisions can or should be made. Rather, my intent is to explore some ideas that may spark some critical discussions about decision making in the compensation area and how it might be approved upon. I will begin by considering the environment in which decisions and policy regarding compensation for occupational disease are made.
Anyone familiar with the issues involved in the compensation of occupational diseases is well aware of the pervasive uncertainty that characterizes the area. Research in occupational disease, namely epidemiology, has produced some very impressive results, however, there are fundamental sources of uncertainty involved in the field which have proven difficult to overcome. What I have in mind are the immense problems surrounding the question of causation in occupational disease.
The most common issue pertaining to uncertainty in causation is latency, or the period of time between first exposure and the diagnosis of the disease.
This means that attributing causation in occupational disease is consistently working somewhere between five and twenty-five years after the origin of the disease. This, of course, complicates things somewhat. Causation is a sticky issue for several other reasons. The origin of an occupational disease can very rarely be connected to an isolated event or period of time. Unlike accidents, diseases are often cumulative: that is, they are the result of a continual exposure to some agent - dust, for example - rather than a single traumatic event. Another reason why causation is difficult is that reliable information regarding exposure is not usually available.
Added to the problems relating to latency, the nature of occupational disease, and exposure data is the issue of multiple causation. Often there are several factors that contribute to an occupational disease in a given case, and it is an arduous task to identify and weigh the various contributors. In many instances, factors, such as smoking and so forth, are involved here. This introduces more problems if these lifestyle factors make an individual more susceptible to an occupational disease (the lifestyle factors and the disease would then be labelled synergistic). It may well be, however, that due to variations in physiology there might be differences in individual susceptibility even without lifestyle factors. This differs from accidents, which tend to affect individuals similarly. Finally, one last source of uncertainty is our knowledge relating to toxic substances, which is limited.
In addition to these problems relating to causation, decisions in the compensation area are made more complex by a wide range of considerations or parameters. In may cases, these considerations are in conflict with one another. The most important considerations are economic and administrative in nature; they refer to such issues as the competitiveness of industry, the health and well being of workers, and questions of administrative fairness and efficiency. I will briefly discuss a few of the major considerations that distinguish the compensation area, starting with some of the economic issues.
Compensation, to a certain extent, has to be considered within the context of economic efficiency. Since it involves the payment of premiums by employers, the state of compensation does have a bearing on the functioning of the economy. Decision makers in the area must keep in mind that compensation does operate within a system that depends on employment, and not the paying out of benefits or premiums, for its productivity. The bottom line is that compensation does not make any sense if industry goes bankrupt. In other words, an effective compensation system is linked, in a fundamental sense, to a healthy and competitive economy.
But this economic perspective does not only apply to the health and wealth of industry. Compensation also plays an important role in income protection for disabled workers. Compensation, as I said above, is connected to a functional economy. But the inverse is also true, an efficient economy should have methods by which its members are protected against accident and misfortune. Thus, decisions and policy in the compensation area have to struggle with this balancing act between the need for competitive industry and income protection for citizens.
In addition to the above considerations, decision makers also face demands for greater administrative efficiency and requirements of fairness and due process to those involved in the compensation process. This means that delays in the settlement of claims, administrative costs, and so forth must be kept to a minimum. This is consistent with the mounting pressure for all public, or quasi-public, institutions to improve the economy of decision making and at the same time effectively carry out their mandates with fairness and attention to the needs of their clients.
In the compensation area, however, the possibility for contradictions and inconsistency is increased because, from the administrative standpoint at least, many values tend to conflict with one another. For example, most everyone would agree that disease claims should be dealt with as speedily as possible, both for reasons of justice and administrative cost. But since decision making in this area is characterized by such a large degree of uncertainty, this becomes increasingly difficult. Also, if, for instance, in order to speed up the claim settlement process, decisions are made according to objective standards applicable to all claimants with a certain disease, justice and fairness in the individual case is surely compromised. Often making sure that each individual receives his or her fair due results in an expensive and slow process.
In summary, decision making in the compensation area is characterized both by a high degree of uncertainty and conflicting demands. Decisions in the individual case, as in adjudicative policy, are rendered highly complex by the thorny issue of causation. It should also be noted that decisions and policy occur in an environment containing several different interest groups and contrasting demands. I would now like to turn to a consideration of the various ways of approaching decision making in the compensation area, both in an abstract and concrete manner.
First, I would like to discuss two conventional ways in which decision makers can, or tend to, approach complexity and uncertainty such as that which characterizes the occupational disease field. On a very basic and simplified level, decision makers, when they are faced by uncertainty and complexity, may choose either to concentrate on administrative procedure, or they may rely on analytic methods and models. The first is concerned with following established and well laid out administrative rules and processes which concern themselves with fairness, and other requirements. The second perspective uses quantitative or highly formalized - sometimes called "scientific" - means to increase the efficiency of decision and policy making. These two demands are not necessarily antagonistic, for fairness is often served by greater efficiency. Nevertheless, I still believe that there is a tension between the scientific or quantitative basis for decisions as opposed to the concern with legal and political (i.e. client participation) process. In the compensation area, it is tempting to see this distinction as one between administrative law on the one hand, and epidemiology on the other. This, however, is too simplistic. What I really have in mind is the opposition between an analytic or technocratic approach to decisions and a preoccupation with the integrity of administrative procedure.
It is probably a good idea to spell Out the major strengths and weaknesses of both of these approaches. I will start with the analytical perspective first. The most obvious advantages associated with this perspective concern greater efficiency and economy of decision making: operations can be rationalized, administrative costs can be reduced through the application of scientific technique, and so on. A less obvious advantage are the benefits associated with the increasing standardization which emerges from rationalization. Standardization, in this context, may ensure that processes are more fair to the extent that it eliminates arbitrary decision making through establishment of general rules and guidelines. Although this would only be the case if these rules were fair themselves.
The first problem with the formal model involves indeterminacy. For instance, there may be several alternatives which lead to equally optimal outcomes (no choice leads to a result which is better than all others). If the outcomes are very similar, choosing between them is relatively simple. If, however, the outcomes differ in offsetting ways, with contrasting strengths and weaknesses, the choice is more significant. Alternatively, a decision maker might be indifferent concerning two or more outcomes, both of which are preferred to all others. The absence of a single, optimal choice is a more serious problem than the case with equally optimal outcomes. If there are several outcomes, none of which can be ranked higher than all the others, it may be difficult to select a course of action. An interesting question is how people act when they would like to make a rational decision but their choices are indeterminate. In most cases, this indeterminacy is denied. In many areas, including public affairs, there is a reluctance to admit the presence of indeterminacy: "rather than accept the limits of reason, we prefer the rituals of reason." This amounts to an irrational faith in the powers of reason. The irrational belief that we can always have good reason for our decisions amounts to pseudorationalism.
We should also note that indeterminacy might also be present concerning the optimal amount of information to be collected before making a decision. Too little investment in the search for information results in ignorance and uncertainty. Collecting too much information might mean that the cost of search and deliberation exceeds the benefits of the outcome of the decision making process. The costs associated with gathering information are extremely hard to determine since it requires estimating the costs and benefits related to the search for information itself.
My real concern is with the dangers of relying too heavily on a scientific approach to decision making. The first danger is what I referred to as pseudorationalism, or the failure to recognize the inability of analytic models to yield determinate outcomes. Formal models of decision making attempt to identify a set of determinate consequences which will follow if a given course of action is taken. In fact, not only should these consequences be determinate, they must also be unique. That is, one outcome among many must be singled out as the rational choice. Problems occur when the decision process fails to provide unique and determinate predictions; there may be no option that can be labelled optimal. If this is indeed the case, the logical choice is to forego acting on the basis of these predictions. Too often, however, the tendency is to deny this uncertainty (or incommensurability) through self-deceiving retrospective justifications. Sometimes acting rationally requires us to accept the limitations on reason.
Other closely related issues are the potential problems arising from the application of analytic methods to policy questions which lack a well defined structure (the compensation for occupational disease would be a good example). These stem from the fact that these sorts of questions often do not have clear answers. But these are the sorts of answers provided by analytic or quantitative models. Thus, if we are going to base policy decisions on such methods, we have to assume that our model represents the given issue to a great enough extent that we can accept the findings of the model as the solution. This sort of thinking is not a problem in the hard sciences, where model building and obtaining results are governed by a set of highly abstracted and formalized assumptions. Questions of public policy, however, are far more "squishy" or "fuzzy" than those in mathematics or the physical sciences. Since, in a policy context, quantitative models cannot adequately grasp the nature of substantive issues, it would be a mistake to use them as a sole criteria for decision making.
Turning to the procedural approach, its advantages are readily discernible. There are strong arguments for attaching importance to administrative processes as distinct from their substantive results. Paying attention to procedure over the long term may actually improve substantive outcomes even though over the short term they might appear as inefficient. This is because many of our most cherished political values are enshrined in administrative conduct. Procedural functions are the safeguard of such values as participatory governance and fatness. In time, these values can become to be viewed as routine and indispensable.
The first problem with placing a great deal of value on process is simple: administrative procedures can be inefficient, time-consuming, and costly. There is also a much more subtle problem. Adherence to administrative procedure tends to be valued even if the final decision is made worse as a result. In other words, the cost of the administrative process outweighs the benefits of its substantive outcome. It is a mistake to favour procedural rules over substantive outcomes. This is the area where efficiency and fairness meet: justice cannot be served when the administrative process is mired in excessive delay and red tape. A decision may not have an adequate outcome after the costs of deliberations are taken under account. Thus, the challenge is to arrange things so that substantive and procedural goals coincide. To see how this can be done, I will discuss an example from within the compensation field.
Before doing so, I would like to reiterate what I feel to be one of the crucial clam of the paper. It is often unjustifiable to invoke one criteria or another for reaching a decision when a large degree of uncertainty is present. For this supposes that the set of outcomes is so well understood that one cold pick the best or the worst, the right one or the wrong one. This, I think, has two implications. First, we should realize that uncertainty and indeterminacy are not temporary problems which will dissolve as our scientific knowledge progresses. It is my belief that a degree of uncertainty will always characterize, to a varying extent, decision making in this area. Thus, the focus should not be on eliminating uncertainty, but rather on accepting it and adjusting the nature of decision making accordingly. Second, reforms to the process of decision making or adjudication should not depend solely on short term considerations. The value of certain administrative procedures are often realized only over the long-term. However inefficient they might be, they do prevent the dissolution of substantive goals into merely technocratic objectives. Paradoxically, placing value on process, in many cases, may make decision making less efficient. This is one of the costs of fairness. But certain procedural rules also help us to cope with uncertainty in our decisions. In the absence of evidence or information we have standards to follow which ensure that outcomes are consistent and effective. Fairness and efficiency can be made to work together.
To see how this is possible, I would like to draw upon the example of the Industrial Disease Standards Panel. The Panel, as other decision making bodies in the compensation field is faced by the uncertainties and conflicting demands that I described earlier in the paper. To these difficulties, we should add the fact that the Panel should deliver its recommendations and advice in a reasonable amount of time. The question becomes how, given the extent of uncertainty and various (and at times conflicting) demands which characterize the occupational disease area, the Panel structures its decision making to obtain desirable results.
I suggest that the key to Panel decision making resides in the commitment to a process of deliberation and scientific investigation (whether it be original research or review of existing work) which is decided upon before it is actually initiated. That is to say, the process is decided upon in advance. Perhaps a better word for this idea is precommitment. Procedural rules, decided on in advance, are a means by which the Panel is able to manoeuvre around the problems of uncertainty and conflicting demands. This is because the strategy of precommitment recognizes that following a more "mechanical" or "established" administrative procedure minimizes the disadvantages associated with making decisions in an ad hoc or piecemeal manner when the environment is complex and uncertain. If we review Panel decisions over the past couple of years, we see that many of them follow a similar pattern: an initial investigation into the background of an issue, a period wherein evidence is gathered or research is carried out, and a final period of discussion and decision making. This process is governed by a set of general rules which pertain to such problems as the amount of time devoted to the collection of evidence, the number of parties who will be granted a hearing, and so forth.
These procedural rules relate to both the use of scientific or formal methods of reaching a decision as well as considerations of justice and administrative efficiency. In the former case, rules which impose time limits on the collection of information, scientific evidence, or the carrying out of actual research recognize the fact that science is an ongoing and continuous exercise compared to the stop and go nature of policy. What I mean is that science and policy proceed at different speeds and on different paths. If the Panel wanted to investigate occupational diseases from a purely scientific perspective, it would be forced to spend enormous amounts of time on a few cases due to the problems involved with causation. In reality, of course, the Panel must concern itself with many other considerations besides straightforward scientific questions. By precommiting to a certain period of time in which it will collect evidence or conduct studies, the Panel is acknowledging the separation of science and policy: one cannot wait for definitive proof from science since it operates according to a different logic than policy.
The next point is related to what I said above regarding the "fuzzy" nature of policy as compared to science or formal methods. Imposing time limits on scientific proceedings is one way in which policy concerns provide a context for scientific findings: a certain period is bracketed out for the selection of scientific evidence, and this evidence is then used within substantive discussion incorporating broader considerations (economics, justice, and so on). The point which I am trying to make clear is that the Panel does not move directly from scientific result to a final decision (as I have argued above, this might result in pseudorationalism).
Another way in which the Panel avoids an undue reliance on technocratic decision malting is by opening up the investigation of a given issue to various stakeholders or interests who are affected by it. This not only builds fairness into the process - to the extent that those affected get a hearing - but it also provides a forum for challenging and discussing the scientific evidence; various stakeholders can question and critique research undertaken by either the Panel or the different interests involved with the issue. I would also suggest that this process might operate as a safeguard against pseudorationalism, in addition to building in considerations of fairness into panel proceedings.
In closing, I would like to clarify what the underlying logic of the last few paragraphs has been: If we know that we are going to have a problem with something in the future, one way of dealing with this is to agree upon several rules to follow when the difficulties start to arise. This is what I mean by precommitment. It is a means by which decision makers can bind themselves in advance when they know that they will have problems finding a solution. Numerous examples from everyday life reflect the same reasoning. If you have a problem saving money, it is usually a good idea to tell the bank to transfer money before you can get your hands on it. Often people make elaborate arrangements with others as a means to forego future temptations. Another obvious example are sporting events: Teams agree in advance to play for a certain duration and abide by various rules. It would be a mess if they made up the rules as they went and played until they collapsed.
I have argued that decision makers faced by complex issues characterized by a high degree of uncertainty should bind or precommit themselves to procedural rules. The success or failure of precommitment, of course, is based on the nature of the procedural rules involved (I did not have time to contemplate what the substantive nature of the rules should be, although I used some simple examples from the I.D.S.P. to illustrate my argument). It also depends on the agreement of all involved parties subsequent to the decision making process; in these terms, it resembles binding arbitration. Precommiting to procedural nobles resists the temptation to dissolve policy questions into scientific ones. It also accepts the limits of uncertainty, and protects against ad hoc decisions and endless administrative deliberations. Additionally, incorporating considerations of fairness - usually in the form of stakeholder participation - not only blends the requirements of justice with administrative efficiency, but it safeguards against a technocratic form of decision making as well.
Christopher Leafloor, B.A. M.A. LL.B.
Counsel, Industrial Disease Standards Panel
The province of Ontario's Workers' Compensation Board compensates injured workers for workplace-induced disease. It is often difficult, however, to know whether a disease was caused by work. This is especially true if the disease may have multiple causes.
Conundrums such as this demonstrate the need for the Industrial Disease Standards
This paper discusses the nature of the mandate of the Panel and the processes and criteria it uses when it performs its statutory duties. The process described below is in the developmental stages and, with time, will change and become more refined.
In 1985 the Ontario government created the Industrial Disease Standards Panel and gave it the purpose of investigating industrial diseases. Section 95 of the Workers' Compensation Act2 establishes the Panel's mandate of investigating possible industrial diseases and making recommendations on these issues.
95. ...
(8) It shall be the function of the Panel,
(a) to investigate possible industrial diseases;
(b) to make findings as to whether a probable connection exists between a disease and an industrial process, trade or occupation in Ontario;
(c) to create, develop and revise criteria for the evaluation of claims respecting industrial diseases; and
(d) to advise on eligibility rules regarding compensation for claims respecting industrial diseases.
The Panel reports its recommendations to the Workers' Compensation Board. In effect, it is the job of the Panel to make recommendations to the Board on how the Board should compensate workers afflicted with these diseases.
The role of the Panel is best understood in the context of the broader workers' compensation system in Ontario. It is thus relevant to note that after Panel forwards its recommendations to the Workers' Compensation Board, the Board is required to publish these recommendations in The Ontario Gazette and to allow interested parties to comment on the Panel's recommendations. After considering any comments received, the Board may then decide whether to accept (with or without amendments) or reject the recommendations of the Panel. When the Board decides to accept or reject the findings of the Panel, the Board must publish its decision in The Ontario Gazette.3 Thus, the Board retains the final responsibility for the establishment of policies, rules and regulations on the compensation of industrial disease claims.4 In addition to its ability to make policies and regulations on the compensation of industrial diseases, the Board also has the responsibility of adjudicating any individual worker's claim that alleges that his or her disease was caused by work. When such a claim is made, the Board performs the initial investigations and concludes whether the disease is compensable. This initial decision may be appealed at various internal levels of appeal within the Board. A further appeal is available to the Workers' Compensation Appeals Tribunal, an independent, tri-partite tribunal. (For a more detailed overview of the workers' compensation system in Ontario and how it compensates industrial disease claims, see my paper entitled "The adjudication of industrial disease claims in Ontario's workers' compensation system", at pp. 3ff. in this volume.)
To understand the mandate of the Panel, one must appreciate the meaning of the concept of "industrial disease", the criteria used by the Panel when it makes findings of "probable connection" between diseases and work and the criteria used by the Panel when it makes recommendations to the Board on "eligibility rules and guidelines".
Section 1 of the Workers' Compensation Act establishes the statutory meaning of "industrial disease" for the purposes of the Acts5.
1. (1) ...
"industrial disease" includes,
(a) a disease resulting from exposure to a substance relating to a particular process, a trade or occupation in an industry,
(b) a disease peculiar to or characteristic of a particular industrial process, trade or occupation,
(c) a medical condition that in the opinion of the Board requires a worker to be removed either temporarily or permanently from exposure to a substance because the condition may be a precursor to an industrial disease, or
(d) any of the diseases mentioned in Schedule 3 or 4;
Clause (a) indicates that a disease is an industrial disease if it results "from exposure to a substance" that relates "to a particular" process, trade or occupation in an industry. Thus, if a workplace substance is a factor in the development of a disease, then the disease is an "industrial disease."
Clause (b) indicates that a disease is an industrial disease if it is "peculiar to or characteristic of" a particular industrial process, trade or occupation. Consequently, a disease is an industrial disease if it is generally associated with a type of work, and this may be true even if no specific substance in the workplace has been identified as causing the disease.
Clause (c) indicates that a disease is an industrial disease if the Board determines that it is a condition that is a "precursor" to an industrial disease.
Clause (d) indicates that a disease is an industrial disease if it is listed on schedules 3 or 4 of the Regulations to the Act. Where a worker suffers from a disease listed on Schedule 4 and was exposed to the corresponding work process, it is conclusively deemed that the work caused the disease. Where a worker suffers from a disease listed on Schedule 3 and was exposed to the corresponding work process, it is presumed that the work caused the disease, unless the contrary is proven. (Schedules 3 and 4 will be discussed in more detail below.)
While these are the statutory definitions of "industrial disease", subsection 95 (8) (a) of the Act requires the Panel to investigate "possible" industrial diseases. Thus the Panel's mandate extends to the investigation of conditions that are merely suspected to be diseases related to work.
As well, section 95 of the Act instructs the Panel to make findings of "probable connection" between diseases and work and instructs the Panel to give advice on "eligibility rules and guidelines." How the Panel goes about making these findings and formulating its advice will be discussed below. What follows first, however, is an outline of the process used by the Panel when it makes its decisions.
Section 95 of the Workers' Compensation Act establishes that the Panel is to be composed of nine people appointed by the Lieutenant Governor in Council. Currently, these nine Panel members have backgrounds in labour unions, business management, scientific research and instruction, the practice of medicine or law, the administration of government and community organizations. The Chair of the Panel has hired a small staff, which includes policy analysts and researchers. As well, the Panel hires, as needed, other medical and legal specialists. The role of these staff and consultants is to assist the Panel in its investigations and deliberations.
The Panel is developing an evolving process that it follows when it investigates issues. Periodically the Panel will alter the process as it accumulates more experience with these matters. This process, as it exists now, is described below.
The Panel convenes a two-day meeting each month. At these meetings, the Panel decides on the investigations it will conduct, evaluates the results of its continuing investigations and decides on the recommendations that it will submit to the Workers' Compensation Board. (As well, Panel members spend additional time reading materials in preparation for their monthly meetings.)
An investigation takes the following course. An investigation may be instigated at the initiative of the Panel or in response to a request from outside of the Panel. When the Panel decides to conduct an investigation, it will ask its staff to conduct a preliminary investigation into the matter and submit a report to the Panel. Upon receipt of this report, the Panel will decide whether it should proceed with a more detailed investigation. The Panel has recently identified the following criteria as relevant to its decisions whether to proceed with a more detailed investigation:
If the Panel decides to proceed with an investigation, it may direct its staff or outside consultants to conduct whatever investigations (including primary epidemiological studies) the Panel requires. The Panel may, for example, request its staff or consultants to conduct literature reviews, to re-analyze data, to gather medical opinions, to collect hygienic data about worksites, or to collect toxicological evidence. The Panel may also request information about how other jurisdictions have dealt with the issue through the implementation of legislation or policies.
Once information has been collected, the Panel will distribute this information to the relevant stakeholders and interested parties -- such as the workplace parties, medical and scientific experts, the Ministry of Labour and the Workers' Compensation Board -- so as to permit them to make submissions to or consult with the Panel.
After the Panel is satisfied that it has sufficient information and has adequately consulted with any interested parties, it will formulate its recommendations on the matter. The Panel then issues a report to the Workers' Compensation Board. The Board publishes this report in The Ontario Gazette and provides interested parties a further opportunity to make submissions, to the Board, on the matter. Upon the Board's receipt of these submissions, the Board may ask further questions of the Panel, or the Panel may, of its own volition, provide additional advice to the Board.
Subsection 95 (8) (b) of the Act requires the Panel to make findings of "probable connection" between diseases and industrial processes. But what does this phrase mean? Does it involve some notion of causality?
The statute's phrase "probable connection" originates from Paul Weiler's report that led to the creation of the Industrial Disease Standards Panel.6 Weiler's report does not indicate whether a "probable connection" must involve some notion of causality; instead, his report contains indications both for7 and against8 the view that a "probable connection" involves causality.
The Panel is aware of no court decision that has considered the meaning of "probable connection." The courts have considered, however, the meaning of the word connection".
" One of the very generally accepted meanings of connection' is relation between things one of which is bound up with or involved in another', or again having to do with'. The words include matters occurring prior to as well as subsequent to or consequent upon so long as they are related to the principal thing. The phrase having to do with' perhaps gives as good a suggestion of the meaning as could be had."9
This suggests that "probable connection" may mean "probable association."
We may seek guidance on the meaning of "probable connection" by looking at comments made by the Minister of Labour at the time section 95 was added to the Workers' Compensation Act. At that time, the Minister indicated that the government intended that it would be appropriate for the Panel to make findings of apparent causal connections.10 This suggests that it may be best to understand "probable connection" as meaning something like "apparent causal connection."
Buttressing this is the fact that the legislature did not use the words "causation" or "probable causation" in section 95 of the Act. Neither is the word "causation" used in subsection 134 (1), which is the clause of the Act that entitles a worker to compensation if his or her disease is "due to" employment. This omission suggests that the legislature intended "probable connection" to have a meaning that is different than "causation" or "causation."11
The Panel has not been given the task of determining whether a particular worker has a particular disease that was "due to" a particular workplace. These are the sorts of questions that must be answered by the Workers' Compensation Board when it is asked to adjudicate individual claims for compensation benefits. Instead, the Panel has the task of investigating broader questions about patterns of diseases in workplaces. In attempting to answer the question whether there is a causal relationship between work and diseases, the Panel is not required to determine a disease's specific causal mechanism or agent. It is enough for the Panel to note associations between diseases and workplaces.
The Panel has had to adopt its own criteria for making a finding that there is a "probable connection" between a disease and work. The following discusses the criteria adopted by the Panel.
These criteria have been influenced by the way in which both scientists and lawyers have approached the problem. Putting philosophical worries aside for a moment, it may be said that scientists search for explanations, and use scientific tests to determine whether a "connection" exists. But in legal systems, advocates and adjudicators must be satisfied with something less than "certainty"; thus they use "legal" tests for determining whether a "connection" exists. Many people have concluded that these two different ways of approaching the question whether a "connection" exists are so radically different from each other as to be totally incompatible. The Panel believes, however, that it must work with both approaches.
The following will first explore how those in scientific professions make an assessment whether a "probable connection" exists between disease and work. The discussion will then turn to how a "probable connection" is determined in a legal context. Finally, the following will outline the criteria established by the Panel for determining whether a "probable connection" exists.
When those in the scientific professions, such as, for example, doctors, scientists and epidemiologists, attempt to determine whether there is a "probable connection" between a disease and work, they use scientific methods to assess any available evidence. Epidemiological evidence, which is evidence about the incidence of diseases in populations, will be especially relevant and important in their investigations.
Scientific and epidemiological evidence must be used carefully. Most of the conclusions offered by scientists and epidemiologists on the connection between diseases and work will be based on statistics. But statistics do not "prove" causal links. Instead, statistical information reveals patterns of associations between events or characteristics, such as, for example, patterns of association between diseases and various characteristics of people.12 Nonetheless, evidence about these patterns will assist scientists when they determine whether a pattern of association between a disease and a. work process indicates the existence of a "probable connection" between the disease and the work process.
Reliable epidemiological studies may not be available for a particular disease. For example, when studying a disease, it is essential for the study to be based upon a large population, otherwise the study results will be unreliable. But, when dealing with rare diseases it is often difficult to find a population base that is sufficiently large so as to generate reliable statistics. Moreover, there may be no studies on a particular disease because it may not be popular to study the topic. Consequently, a lack of statistics on a particular disease may indicate a lack of interest in studying the disease; a lack of statistics does not indicate that there is no connection between the disease and work.
For these reasons, epidemiological evidence may not determine whether there is a "probable connection" between a disease and an industrial process. In this case, additional information will be required. When looking beyond statistical evidence, the criteria elaborated by Sir A. Bradford Hill are especially helpful. Hill introduced his criteria with the following warning:
"Here then are nine different viewpoints from all of which we should study association before we cry causation. What I do not believe -- and this has been suggested -- is that we can usefully lay down some hard-and-fast rules of evidence that must be obeyed before we accept cause and effect. None of my nine viewpoints can bring indisputable evidence for or against the cause-and-effect hypothesis and none can be required as a sine qua non."13
The nine criteria suggested by Hill are:
(1) strength of association,
(2) consistency of association,
(3) specificity of association,
(4) temporality of association,
(5) biological gradient of the association,
(6) plausibility of the association,
(7) coherence of the association,
(8) experiment, and
(9) analogy.
What must also be considered is how this evidence is weighed. There are no commonly accepted scientific standards for determining when there is sufficient evidence to conclude that there is an association between two events or things. Instead, evidence is weighed in the context of the question asked and the interests at stake. For example, imagine posing the question whether to give a particular treatment to a person afflicted with a particular condition. (The implicit questions here are: "Is there an association between the proposed treatment and a speedy recovery from the condition?" and "Is there an association between the proposed treatment and undesirable side-effects?") The standard used to weigh the evidence will depend on the patient's condition. For example, if the patient is suffering from the common cold, the decision to administer the treatment may be made by applying a different standard than if he or she is afflicted with AIDS. In the former situation, a treatment will likely be acceptable only if we have strong evidence that the treatment is harmless, while in the latter situation a treatment may be acceptable even if there is significant evidence that the treatment may have dangerous side-effects. The reason for the difference between these two situations is, of course, that a person who has a cold will survive the disease, while a person with AIDS will likely not. Thus the consequences of the proposed course of action will effect the standard at which the evidence is assessed.
It is rare for Ontario's courts to be asked to determine questions about the associations between diseases and workplaces. Occasionally, however, the courts have been asked to determine whether a plaintiffs disease was caused by a particular substance created by a defendant, or to determine whether a plaintiffs disease was caused by a drug prescribed by a doctor. The former type of case, where a plaintiff alleges that he or she was exposed to a toxic substance by the defendant, can be called a "toxic tort" lawsuit. The other type of lawsuit, where a patient is injured as a result of the behaviour of a doctor, is an example of "medical malpractice" litigation. What is similar between these two types of cases and workers' compensation disease cases is that they all raise difficult questions about whether certain events or chemicals are associated with a medical condition suffered by the plaintiff or claimant.
One must be cautious, however, about applying court-based legal tests to the adjudication of industrial disease claims in the context of Ontario's workers' compensation system.14 There are many differences between the adjudication of these sorts of issues in court and in an administrative system such as a workers' compensation system. For example, the legal tests in a toxic tort or medical malpractice case are, generally, more rigorous than the tests used in workers' compensation law. The main difference between the two is that generally in court one must prove that the defendant was at fault for the damages suffered. In workers' compensation matters in Ontario it is not necessary to prove that the employer was at fault for the injury. Nonetheless, it is useful to consider the tests used in toxic tort or medical malpractice cases, since on the issues of causation these tests bear some resemblance to the standards used in industrial disease claims in Ontario's workers' compensation system.
The Supreme Court of Canada discussed these tests in the context of medical malpractice lawsuits. The Court noted that causation in these cases need not be proven with scientific precision.
"I am of the opinion that the dissatisfaction with the traditional approach to causation stems to a large extent from its too rigid application by the courts in many cases. Causation need not be determined by scientific precision. It is, as stated by Lord Salmon in Alphacell Ltd. v. Woodward, [1972] 2 All. E.R. 475 (H.L.), at p. 490, '... essentially a practical question of fact which can best be answered by ordinary common sense rather than abstract metaphysical theory'."15
Causation may be proven if the plaintiff puts forward a plausible case and the defendant fails to respond with an adequate contrary explanation.
"The legal or ultimate burden remains with the plaintiff, but in the absence of evidence to the contrary adduced by the defendant, an inference of causation may be drawn, although positive or scientific proof of causation has not been adduced. If some evidence to the contrary is adduced by the defendant, the trial judge is entitled to take account of Lord Mansfield's famous precept. This is, I believe, what Lord Bridge had in mind in Wilsher [[1988] 2 W.L.R. 557] when he referred to a robust and pragmatic approach to the ... facts.' (p. 569).
"It is not, therefore, essential that the medical experts provide a firm opinion supporting the plaintiffs theory of causation. Medical experts ordinarily determine causation in terms of certainties whereas a lesser standard is demanded by the law."16
The law permits the drawing of reasonable inferences based on the available evidence. Furthermore, our legal institutions permit a conclusion to be based on what is popularly known, to television audiences at least, as "circumstantial evidence." Generally, legal proceedings are willing to consider and rely on a broad range of evidence. Scientists may not be so comfortable with this approach.17
One similarity between what happens in court and how scientists deal with these issues is that the amount of evidence that is thought to be sufficient will depend on the question asked and the interests at stake. In proceedings before a court or administrative tribunal, the amount of evidence required (or, in other words, the "standard of proof") may allow for a sliding degree of proof, where the amount of the slide is determined by the nature of the interests at stake. This is similar to what occurs in a scientific context, as discussed above, where the standard of proof may shift in accordance with the nature of the interests that are at stake.
Another similarity between what happens in court and how scientists deal with these issues is that in both contexts scientific and statistical information, if available, will be relevant. In court, scientific evidence will be important. As well, scientific standards for assessing evidence may be used, as occurred in a recent Ontario court trial where Sir Bradford Hill's criteria for drawing inferences about causality were accepted as "widely respected and adopted".18
The Panel has chosen to adopt as part of its criteria for determining whether a "probable connection" exists between a disease and a workplace the above-mentioned criteria elaborated by Sir Bradford Hill. What follows is an elaboration of these nine criteria as used by the Panel when it determines whether there is a "probable connection" between a disease and work.
(1) strength of association
Strength of association refers to the degree of increase in the risk of disease following exposure to a particular substance or process. A tripling of the risk, for example, would be stronger than a doubling of the risk.
Statistical significance is customarily required to confirm an excess risk of disease; however, a strong association may be relevant even if statistical significance has not been attained, especially if failure to achieve significance is the consequence of a small study population.
(2) consistency of association
Consistency of association is achieved when a number of different studies produce similar findings. Consistency is particularly persuasive if the studies are of various designs, large and carefully conducted.
(3) specificity of association
Specificity of association is demonstrated by evidence that exposure to a particular substance or process is associated with one specific disease. This criterion must be used with caution because it will not be met if a particular substance is capable of causing more than one disease.
(4) temporality of association
Temporality of association is demonstrated by evidence that the exposure to a certain substance or work process precedes the onset of the disease.
(5) biological gradient of the association
Biological gradient of the association, or dose response, is demonstrated by evidence that as the exposure to a particular substance or process increases, the likelihood of development of a particular disease also increases. Conversely, a dose response will also be demonstrated if the incidence of the disease decreases with a corresponding decrease in dose.
(6) plausibility of the association
Plausibility of the association is demonstrated when the suspected connection between the process and the disease is a connection that is consistent with what we know about biological and chemical patterns.
(7) coherence of the association
Coherence of the association is shown when the evidence as a whole makes sense and is not contradicted by established knowledge about the disease process. (This criterion may simply be another formulation of the criterion of "plausibility of the association".)
(8) experiment
Experimental evidence is also relevant, if it is available. However, for obvious ethical reasons we seldom have available experimental evidence about human health. Often, however, animal studies provide evidence about the effects of exposures.
(9) analogy
Analogies are also relevant, if available. For example, if exposure to the same substance in another industrial process is associated with an increased risk of the same disease an association may be established.
When determining whether there is a "probable connection" between a disease and work, the likelihood of such a connection increases as there is a corresponding increase in the number of the above criteria that are satisfied.
The Panel has found these criteria to be valuable because they allow for decisions to be based not only on the systematic consideration of scientific and statistical evidence, if this evidence is available, but also on considerations other than statistical evidence. Statistical evidence, if it is available, may be relevant under many of Hill's criteria, especially "strength of association" and "biological gradient of the association". Other scientific evidence may be relevant under many of Hill's criteria. Hill's other criteria (temporality, consistency, plausibility, coherence and analogy) might lead the Panel to find a "probable connection" in the absence of conclusive scientific evidence.
As indicated above, the mandate of the Industrial Disease Standards Panel includes the giving of advice to the Workers' Compensation Board on how it should structure its "eligibility rules and guidelines" for the compensation of industrial disease claims.
When a worker claims that his or her disease is "due to work" and is thus compensable in accordance with subsection 134 (1) of the Act, the Workers' Compensation Board decides whether to grant compensation to the worker. The Board may adjudicate such a claim in one of four different ways.
(i) the disease is deemed to be due to work (if the disease is listed on Schedule 4 of the Act's Regulations)
(ii) the disease is presumed to be due to work unless the contrary is proved (if the disease is listed on Schedule 3 of the Act's Regulations)
(iii) the disease may be adjudicated in accordance with guidelines or policies issued by the Workers' Compensation Board
(iv) the disease may be adjudicated on a case-by-case basis.
(These four different ways of adjudicating disease claims are discussed in my paper "The adjudication of industrial disease claims in Ontario's workers' compensation system", at pp. 3ff. in this volume.)
The mandate of the Panel does not extend to giving advice to the Board on how it should adjudicate any particular claim for compensation filed by any specific worker. Thus, the Panel is not authorized to advise the Board on situations described by item (iv), above. But the Panel's mandate includes the offering of advice to the Board on any guidelines it should use when it adjudicates claims, and providing advice to the Board on which diseases should be added to schedules 3 and 4. The following discusses the criteria used by the Panel when it makes recommendations to the Board on these various forms of "eligibility rules and guidelines."
Schedule 4 of the Workers' Compensation Act's Regulations20
When should the Panel advise the Board that a disease should be added to this schedule?
Paul Weiler suggested that it would be appropriate to add diseases to Schedule 4 when the workplace has increased by a factor of two the risk of developing a particular disease.22
The Board has added to Schedule 4 the disease of nasal cancer and the associated processes of "[a]ny process at the Copper Cliff sinter plant of Inco Limited" and, "[a]ny process in the Port Colborne leaching, calcining and sintering department of Inco Limited that was practiced before January 1, 1966."24 Sir Bradford Hill's criteria may also be applied to nasal cancer, revealing strong positive associations for most of the criteria. For example, the association was strong. At the two specific plants named in this Schedule 4 entry, the risk of developing nasal cancer is 13 to 118 times the risk for the population at large.25 The association was consistently found in epidemiological research. (Since nasal cancer is a rare disease in Ontario, almost all of the known cases in Ontario are occupational in origin.) The association was plausible because tumours occur at the tissue sites where nickel is deposited, such as nasal tissue during inhalation, and because nickel accumulated during active work is retained in the mucous membrane for years after the cessation of exposure.26 The association was coherent, as animal and in vitro studies are supportive of the link.27 Furthermore, an analogy is provided by the link between nasopharyngeal cancer and cadmium oxide, which is another metal fume.28
The Panel is developing a test for determining whether a disease should be added to Schedule 4. The Panel is of the opinion that before a disease is added to Schedule 4, the evidence must show a "conclusive connection" between the disease and work. An example of this type of disease would be one that is almost always caused by a particular agent that is associated with specific work processes. This should apply to situations where we can identify the toxic agent. In other words, a disease should be added to Schedule 4 only if the evidence conclusively indicates that the disease is almost always caused by work. A disease should be added to Schedule 4 only if the evidence indicates that where a worker has a certain disease and was exposed to a certain substance at work, then it is conclusive that it was connected to work.
Schedule 3 of the Workers' Compensation Act's Regulations29 lists diseases and associated work processes. When a worker suffers from one of the diseases listed on this schedule and was exposed to the associated work process, then section 134 (9) of the Act directs the Workers' Compensation Board to presume that the disease was caused by work, unless "the contrary is proved".30
When should the Panel advise the Board that a disease should be added to this schedule?
One of the reasons for placing a disease on Schedule 3 is to declare that the evidence has shown that there is a "probable connection" between the disease and work. Thus, a worker who has such a scheduled disease and who was exposed to the corresponding process is spared the burden of demonstrating that such a "probable connection" exists. The effect of this is that when a worker claims to have a Schedule 3 disease and to have been exposed to the corresponding process, this shifts onto the Workers' Compensation Board the responsibility of proving that the worker should not be compensated. This reflects the fact that industrial disease claims are very difficult to adjudicate, and generally the Board has more resources for investigating these matters than do workers. With certain diseases and processes, where there are sufficiently strong reasons for believing that the disease and process are connected, these are also good reasons for imposing on the Board the burden of proving that workers with these diseases should not be compensated.
Since a worker with a Schedule 3 disease who was exposed to the associated work process is likely to receive compensation, the only diseases that should be listed on this schedule are those diseases where the scientific evidence establishes a "strong connection" between the disease and the work process. But the connection need not be so strong that the disease could only have been caused by work. A disease may be added to Schedule 3 even if the disease could have been caused by something other than work.
Again, Sir Bradford Hill's criteria are useful here. Where the evidence, in accordance with these criteria, shows a strong, though rebuttable, association between a disease and work, then the disease should be added to Schedule 3. A disease will satisfy this test if the evidence shows a consistent pattern of elevated rates of disease among workers with similar exposures, and the evidence shows that the rates of disease increase with the intensity and duration of exposure. There should also be some evidence of suspected causes in the workplace and a reasonable biological explanation for the development of the disease.
Recently, the Panel found that a "probable connection" exists between lung cancer and hardrock mining.32 In this context, "rebuttal matrix" refers to a set of criteria that would aid in determining whether in a particular case the Schedule 3 presumption might be rebutted.
When it made this finding and recommendation, the Panel used Sir Bradford Hill's criteria. The Panel concluded33 that there are consistently elevated rates of lung cancer in hardrock miners and that the vast majority of these studies showed excesses that were statistically significant. The studies demonstrated a dose/response relationship, such that the longer the exposure the greater was the incidence of lung cancer. Many of the substances to which miners are exposed are recognized as carcinogens. And these elevated rates of cancer cannot be explained solely by smoking or other possible causes.
The Panel determined that this disease should not be listed on Schedule 4 since there are high rates of lung cancer in the general population. The Panel's recommendation acknowledges that lung cancer can be caused by something other than work. The Panel recommended that the scheduling of the disease be delayed until the creation of a rebuttal matrix because, in this case, the evidence that may be used to prove the contrary is complex.
"There are significant and numerous differences in the experience of the majority of miners. The majority of miners worked in different kinds of ore, at different times and for different lengths of time. They also worked underground and on surface. These variations have resulted in varying degrees of risk. The risk is greatest for those miners with mixed ore experience, especially gold/uranium, and least for those miners who worked only in nickel. The extent to which a miner smoked, if at all, is also a factor that must be considered when assessing the overall risk due to exposures in the mining environment."34
The Board has added to Schedule 3 the disease of nasal cancer and the associated processes of "concentrating, smelting or refining in the nickel producing industry."35 The reason for this is that nasal cancer is a rare disease and this addition to the Schedule,
"accords with the conclusion of the International Agency for Research on Cancer (IARC) that there is sufficient evidence in humans for the carcinogenicity of nickel sulfate and of the combinations of nickel sulfides and oxides encountered in the nickel refining industry."36
Sir Bradford Hill's criteria may also be applied to nasal cancer, revealing strong positive associations for most of the criteria. For example, the strength of the association was strong, although not as strong as it was for the nickel processing plants added to Schedule 4 (discussed above).
"[A]11 of the known, well-established causes of nasal cancer are occupational. Therefore, it can be presumed that a nasal cancer diagnosed in a worker in the nickel producing industry could be a work-related nasal cancer. Moreover, the International Agency for Research on Cancer (IARC) reviewed the world epidemiological literature on nickel producing and concluded that there is sufficient evidence in humans for the carcinogenicity of nickel sulfate, and of the combinations of nickel sulfides and oxides encountered in the nickel refining industry'."38 The association was coherent, as animal and in vitro studies support the link.39 An analogy is provided by the link between nasopharyngeal cancer and cadmium oxide, which is another metal fume.40
The Panel has also attempted to articulate a test that might describe the circumstances where a disease should be added to Schedule 3. Currently the Panel is recommending that diseases be entered into Schedule 3 when there is a "strong connection" between work and disease. That strong association is established when repeated study findings confirm an association between the disease and work, known disease-causing agents exist in the workplace, dose-response relationships have been identified and the association is plausible.
When adjudicating disease claims, adjudicators may have available to them policies or guidelines created by the Workers' Compensation Board. These guidelines or policies may help speed the adjudication process and add consistency to the manner in which similar claims are adjudicated. Guidelines or policies may be created also for diseases that are listed on Schedules 3 or 4, although most guidelines or policies will relate to diseases that are not listed on either schedule. When should a policy or guideline be created for a disease that is not listed on either of the schedules?
One can argue that these policies or guidelines should be created when there is a "moderate connection" between the disease and work. There are many reasons why the evidence may point to a "moderate connection" rather than to a "strong" or "conclusive" connection. The evidence may be incomplete, untested or conflicting. Or perhaps fewer of Hill's criteria are satisfied.
An example of the Panel giving advice of this sort is its Interim Report to the Workers' Compensation Board on Scleroderma. This report found a "probable connection" between systemic sclerosis and occupational exposure to silica, and recommended two "eligibility rules" that the Board may use when it adjudicates these claims. The Panel noted that although it is possible for scleroderma ultimately to be placed on Schedule 3, the lack of experience with the disease in Ontario was a reason for not scheduling the disease immediately. Instead, the Panel suggested that this question be revisited in three years. The Panel based its finding of a "probable connection" on Sir Bradford Hill's criteria. The Panel found that various studies had found a connection between the disease and silica, but that "a definitive epidemiologic study is unlikely to be conducted, owing to the rarity of the disease."41 Numerous studies had implicated silica as a causal agent and it was biologically plausible that silica could induce scleroderma. It had been hypothesized that an intense, short exposure to silica could induce the disease and there was some evidence of a biological gradient on the basis of intensity of exposure. Furthermore, there was some speculative experimental evidence of a connection.
Currently, the Panel has decided that when a "moderate connection" exists between work and disease it will recommend that the WCB implement guidelines to assist in the adjudication of those cases. In the Panel's view guidelines are the most reasonable adjudicative tool when the weight of scientific evidence favours a relationship but aspects of the evidence are contradictory or unexplainable. This applies, as well, if the science is still in the developmental stages and we are uncertain about the exact nature of the disease process or the specific causes of a disease.
Because the Panel is prepared to make recommendations when the science is in the developmental stages, the Panel is also prepared to revise its recommendations when the evidence becomes more conclusive. Accordingly, as in the case of scleroderma, the Panel will revisit the evidence and determine if it should alter its past recommendations to the Board.
As indicated above if the connection between work and disease continues to be the subject of inquiry, then the Panel may make recommendations concerning the use of various adjudicative tools. For example, the Panel has given the Board advice in circumstances where there is a relationship between work and diseases but there are outstanding questions about the sequelae of the work-related diseases that may effect a worker's entitlement. In its report on "non-malignant respiratory disease" the Panel found a probable connection between work-related respiratory disease and respiratory infections, and a probable connection between these infections and impairment that might cause death.42 The Panel recommended that the Board take steps to notify potential claimants of the possibility that they may be entitled to claim compensation for their secondary conditions, that the Board investigate the cause of death for any workers who received benefits for non-malignant respiratory disease and that dependency benefits be paid if compensable nonmalignant respiratory disease significantly contributed to the death of a worker.43
The Board requested the Panel to undertake some additional investigations on these issues. However, the Panel declined this invitation. The Panel advised the Board that it would expand its investigation if the Board were unsuccessful in its attempts to implement the recommendations. This issue has not yet been resolved.
In another Report the Panel found that a probable connection between compensable respiratory illness and cor pulmonale (right-sided heart failure). The Panel recommended that the Board proceed to investigate the possible occurrence of the disease amongst workers suffering from compensable respiratory illness and that this be done so as to ensure that appropriate benefits had been paid.44
Because cor pulmonale may be difficult to diagnose the Board responded by informing the Panel that the implementation of the recommendations would be problematic. The Panel and the Board agreed to work together to overcome these problems and a technical subcommittee has been struck to provide guidance to physicians who may have to report on the problem to the Board. The subcommittee is chaired by a member of the Panel and is expected to report in the near future. That report should provide the Board with the technical advice necessary to implement the recommendations.
Although much of the Panel's time will be spent on the investigation of the connection between disease and work, the Panel will also be required to spend time on providing the Board with advice on the adjudication of previously recognized diseases.
The work of the Panel will be defined by its assessment of the issues to be resolved.
Most of the Panel's activities are focused on providing advice to the Board about what should happen if a work-related disease has been identified. As indicated above, the first step in any of the Panel's activities is the investigation of a possible connection between work and a disease. As with any investigation, sometimes a positive association will be found and sometimes no recognizable association will be discovered.
On several occasions the Panel has reported a conclusion that it found no probable connection. For example, following its investigation into the health effects of firefighting, the Panel did not uncover an association between firefighting and lung cancer. In evaluating the evidence the Panel applied the Bradford Hill criteria. The Panel concluded that because there was no evidence of elevated rates of lung cancer, even though there had been numerous studies investigating the health of firefighters, it was not possible to find a work connection. In that case the absence of supportive findings amongst a wealth of evidence was reason for the Panel to conclude that there was not a probable connection.45
In other circumstances, the Panel concluded that it was necessary to rely on more than indicator before it was entitled to determine that a probable connection existed. For example when the Panel examined the health of a number of women in a lamp plant it determined that a probable connection between a group of gynaecological cancers and work could not be established because there was no evidence of similar findings in similar workplaces and a known carcinogen had not been identified.46
In a report concerning "cor pulmonale" the Panel found a "probable connection" but declined to recommend the creation of guidelines. The reason for this was that when the disease is diagnosed, "there is often little evidence to assist the adjudicator in distinguishing between work and non-work-related causes."47 Because of these difficulties, the Panel declined to recommend guidelines and instead recommended that the Board establish a monitoring system to better assist in determining whether a worker is afflicted with the disease.
In its Interim Report to the Workers' Compensation Board on Aluminum the Panel concluded that the evidence did not substantiate the existence of a connection between aluminum-associated disease and occupational exposure to aluminum.
"In weighing the evidence, the Panel notes that the medical and epidemiological evidence is preliminary. There is an insufficient number of studies to establish consistent results. The problem is that exposure to aluminum is usually accompanied by exposure to other potentially toxic substances and therefore it has not been possible so far for aluminum to be identified as the causal agent of any occupational disease. In addition, the anecdotal reports have not been supported by any documentation. Overall, the evidence currently available to the Panel is inadequate to allow the Panel to describe occupational exposure to aluminum as a probable factor in the development of cognitive or neurologic deficits, or Alzheimer's Disease. Therefore they cannot currently be described as aluminum-related industrial diseases.
"However, the Panel recognizes that a lack of evidence does not mean that a relationship does not exist. It only means that medical science cannot yet answer these questions."48
It is important to note, however, that if the Panel declines to make a finding that there is a "probable connection" between a disease and work, this does not preclude the Panel from giving the Board advice on "eligibility rules and guidelines". For example, in the lamp plant study several of the Panel members were of the view that compensation might be payable in particular circumstances and those circumstances were identified in the report. In the aluminum report the Panel thought that there was enough continuing public concern and conflicting evidence about the issue that the Panel commissioned a study to explore the evidence further. In those circumstances, as with scleroderma, the Panel may revisit its original conclusions when additional studies have been completed.
It is impossible for the Panel to conclude that a probable connection will never exist, since our knowledge is always expanding and the evidence establishing an association may be uncovered in the future. It is, however, possible and necessary for the Panel to determine that it is not satisfied, given the current state of knowledge, that there exists a relationship between a particular disease and work.
In all circumstances, whether or not the Panel has found a probable relationship, the Panel believes that it must share with interested parties the grounds for its decisions. Consequently, the Panel will always prepare reports that detail the evidence it relied upon to reach its conclusions.
Medically, it is often difficult, if not impossible, to prove the cause of a disease. As a result, the Workers' Compensation Board has an extremely difficult task when it is asked to adjudicate industrial disease claims.
It is the task of the Industrial Disease Standards Panel to advise the Board on the "eligibility rules and guidelines" to be used when these disease claims are adjudicated. This task, however, is extremely challenging, as it requires not only a sophisticated understanding of the complexities of Ontario's workers' compensation system, but also of the complicated medical issues surrounding diseases and epidemiology. In order to guide itself through this difficult project, the Panel has created criteria that it uses for determining whether a disease is caused by work.
This paper has attempted to elucidate the criteria used by the Industrial Disease Standards Panel when it develops its recommendations to the Workers' Compensation Board on how to compensate industrial diseases.
Dennis L. Campbell, Industrial Disease Secretariat and James E. Dorsey, (former) Chairman of the Governors Workers' Condensation Board of British Columbia
"Disease":
"An impairment of the normal state of the living animal. or any of its components that interrupts or modifies the performance of the vital functions, being a response to environmental factors (as malnutrition, industrial hazards, or climate), to specific infective agents (as worms, bacteria, or viruses), to inherent defects of the organism (as various genetic anomalies), or to combinations of these factors."1
Recognizing and compensating occupational disease is a complex medical, social, political, legal and administrative process entrusted to the Workers' Compensation Board of British Columbia. Our purpose is to describe how this assignment of responsibility to the Board has evolved over the past seventy-five years; to explain some of the legal, social, political and administrative dimensions of its discharge; and to sketch how it will be discharged in coming years. Questions related to specific occupational diseases we leave to future studies.
In 1877 Switzerland was the First country to compensate workers for occupational disease by recognizing a list of forty-five industrial substances which could cause specific occupational diseases. As early as 1883 in Germany and 1897 in Austria, workers were compensated for certain work-related diseases.2 In Germany, compensation payments were met by mutual insurance associations of employers. All employees were required to be insured at the expense of employers. Separate associations were organized for each industry.
The First workers' compensation statute was enacted in Britain in 1897.3 It provided compensation for personal injury by accident arising out of and in the course of employment, but not for disease. Coverage was extended to industrial diseases in 1906.4
The self-evident logic and equity of extending coverage to disease was expressed during the debate by the Hon. Mr. Harold J. Tennant:
"Wherein lay the difference between the suffering of a woman whose eye was knocked out by a flying shuttle and the suffering of a woman working in the pottery trade whose eyesight had been taken away by lead poisoning? Or again, why would compensation be paid to the dependents of a man who was killed by molten metal, and not to the dependents of a man who, driven mad by carbon disulphide, jumped out the window and was killed? Or where was the difference between a man killed by an electric shock and a woman in a brush factory who pricked her face with a piece of deadly horse-hair was stricken by anthrax, and died in a few hours? The industrial disease was just as surely caused by the employment in one case as was the accident in the other."5
Earlier in that year the House of Lords had decided in Brintons, Limited v. Turvey that in certain circumstances the contracting of a disease through employment could constitute a personal injury by accident and be covered by the statute. A worker had died from anthrax. The Lord Chancellor held:
"I so far agree with my nobel and learned friend that I think, in popular phraseology from which we are to seek our guidance, it [the statute] excludes, and was intended to exclude, idiopathic disease, but when some affection of our physical frame is in any way induced by an accident, we must be on our guard that we are not misled by medical phrases to alter the proper application of the phrase accident causing injury', because the injury inflicted by accident sets up a condition of things which medical men describe as disease.
Suppose in this case a tack or some poisoned substance had cut the skin and set up tetanus. Tetanus is a disease; but would anybody contend that there was not an accident causing damage?
An injury to the head has been known to set up septic pneumonia, and many years ago I remember, when that incident had in fact occurred, it was sought to excuse the person who inflicted the blow on the head from the consequences of his crime because his victim had died of pneumonia and not, as it was contended, of the blow on the head. It does not appear to me that by calling the consequences of an accidental injury a disease one alters the nature or the consequential results of the injury that has been inflicted.
Many illustrations of what I am insisting on might be given. A workman in the course of his employment spills some corrosive acid on his hands; the injury caused thereby sets up erysipelas - a definite disease; some trifling injury by a needle sets up tetanus. Are these not within the Act because the immediate injury is not perceptible until it shows itself in some morbid change in the structure of the human body, and which when shown we call a disease? I cannot think so. I am, therefore, of opinion that the county court judge was quite right, and I move your Lordships accordingly."6
Other judicial decisions on the meaning of the language and extent of coverage of the 1897 statute had established some subtle and unwanted distinctions. For example, in Steel v Cammell, Laird & Co.7 the Master of the Rolls had held that an accident must be something of which the date could be fixed. Mr. Tennant pointed out that for something like lead poisoning it could not be said exactly when the poisoning entered the system. He argued that the House should:
"...clear those distinctions away, and say that, where a person was injured by disease definitely arising out of and in the course of employment, that person should receive compensation. What was the difference between a man whose hand was crushed by a lathe and the man who was equally incapacitated by wrist-drop in the potteries, or between a man paralysed by a fall and a man paralysed by lead poisoning?"8
Legislation was required to extend coverage to occupational diseases and not leave their coverage to the ambiguities of "accident". This had been recognized by Lord Lindley in the Brintons case:
"My Lords, I hope that the decision in this case will not be regarded as involving the doctrine that all diseases caught by a workman in the course of his employment are to be regarded as accidents within the meaning of the Workmen's Compensation Act. That is very far from being my view of the Act, and I concur with the observation made by Cozens-Hardy L.J. on this point the end of his judgement In this case your Lordships have to deal with death resulting from disease caused by an injury which I am myself unable to describe more accurately than by calling it purely accidental.
The fact that an accident causes injury in the shape of disease does not render the cause not an accident. Whether in any particular case an injury in the shape of disease is caused by an accident or by some other cause depends on the circumstances of that case, and on the meaning to be attributed to the word 'accident'."9
At the root of the issue of extending coverage to disease is the problem of proving causation. Did that work activity on that day or over time cause this disease?
In the Commons it was argued that in many instances it would be difficult to establish that a disease was occupational in origin, particularly in the case of a slow or gradual onset. This was a time before universal health care. Without clear boundaries there would be constant pressure to extend the statute's scope through interpretation to cover all workers' health care costs.
Part of the solution was to legislate recognition of certain diseases as presumptively compensable through inclusion in a Schedule to the Act. Once included in the Schedule the disease would be presumed to be work induced. certification that a worker had one of these diseases would lead to the rebuttable legal presumption that it was caused by work. The proposed Schedule listed six diseases - anthrax, lead, mercury, phosphorus and arsenic poisoning, and ankylostomiosis. The Home Secretary was delegated authority to add others.
The proposal immediately generated political debate about why certain diseases were not included in the Schedule. Four of the six diseases were referred to as small special diseases, and one of these, ankylostomiasis or "miners' worm", was a disease present in Germany but not yet present in Britain. The "great trades" were not dealt with in the Schedule. The concern was for the numerous factory trades affected by certain fluffs, dusts, and dyes in which consumption and anaemia were said to be prevalent.
In response, The Hon. Mr. Herbert Samuel (Under-Secretary of State for the Home Department), in supporting the government proposal of a Schedule, stated:
"The Government had never suggested that it was anything but a provisional Schedule. That had been made perfectly clear in the previous stages of the Bill, and many of those diseases which the Hon. Member quoted ought undoubtedly to stand on the same footing as lead poisoning and others which were now inserted in the Schedule. The reason why these particular diseases were included and others were not was that all these diseases, except one relating to mines, were already mentioned in the Factory Acts as dangerous, and on which the Home Office received reports from all over the country, and to the extent to which they were due to particular industries was absolutely certain. Therefore, they could without further inquiry be put into the Schedule of the Bill."
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"As soon as this clause of the Bill was sanctioned by the Committee his right hon. friend the Secretary of State for the Home Department appointed a Committee to investigate those other diseases".
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It was certainly his full expectation that the number of diseases in the Schedule would be multiplied several times before the Act came into actual operation."10
On the other side, employers feared that extension of workmen's compensation to disease made them responsible for the total health care of workers. The focus turned to a close scrutiny of the Schedule and any addition to it. The Hon. A.J. Balfour argued:
"If they meant to go further and make every disease to which poor humanity was liable a subject of compensation they would produce a crop of litigation, and no other crop whatever. If these were the cases they meant to meet, let them boldly take the course of universal insurance, taking something from the workman and something from the employer so that everybody would be protected against the changes and chances of this mortal life, and deal with the subject in a comprehensive spirit. But let them not make legislation an absolute farce and absurdity by attempting in a Bill dealing with compensation for workmen to deal with those common misfortunes, universal maladies, and incidents from which none of us were free, and which could not be dealt with in any measure immediately directed against particular and special misfortunes."11
Much the same economic concern and consequential political attention has persisted over the decades.
The proponents of the Schedule solution asked to be trusted because reliance would be placed on the scientific opinions of the medical profession in deciding to add a disease to the Schedule. The Hon. Mr. Charles Fenwich pointed out:
"It was difficult, if not impossible, to mention every disease and every trade in the Schedule to an Act of Parliament, and he should feel alarmed at the length to which such Schedule might run. There would be ample protection if the Home Secretary would ... leave himself the power to act upon his own initiative or upon the advice of the certifying surgeons of the respective districts in which the dangerous trades existed."12
The administrative and adjudication scheme surrounding the Schedule worked as follows. A worker who felt he or she was suffering from an occupational disease would seek out a "certificate of disablement" from the "Certifying Surgeon" for the district in which the worker was employed. This "Certifying Surgeon" was typically a general practitioner appointed by the Chief Inspector of Factories for the administration of the Factory and Workshops Act 1901. That physician, based upon his investigations, had to satisfy himself that the worker had the disease and was "thereby disabled from earning full wages at the work at which he was employed".13 In the event that the employer or the worker was aggrieved by the action of the "Certifying Surgeon", either could apply to the County Court Registrar for the matter to be referred to a medial referee appointed by the Home Office. The medical referee was often a specialist who had particular knowledge of certain diseases. If the application was made by one party only, there was a further "appeal" to a County Court Judge. The medical referee could also sit as an assessor with the Judge.
The Certificate had significant evidentiary consequences. If the worker was employed in one of the processes specified in the Schedule in relation to that disease at, or immediately before, the date of disablement, the worker was given the benefit of a legal presumption that the disease was due to the nature of his employment. The presumption could be rebutted by the employer. If the presumption was not rebutted, the worker had an absolute right to compensation.
In the absence of this scheme, and inclusion of a disease on the Schedule, the worker had the difficult task for any individual of proving that the disease was due to the nature of his employment.
The 1906 statute did not provide any guidance for the circumstances or conditions under which diseases would be added to the Schedule. This led to the appointment of a Departmental Committee under Mr. Herbert Samuel to "inquire and report what diseases and injuries, other than injuries by accident, are due to industrial occupations, are distinguishable as such, and can properly be added to the diseases enumerated in the Third Schedule to the Workmen's Compensation Bill 1906."14
The Committee decided that three tests should be applied to each disease under consideration for inclusion in the Schedule: (1) The disease had to be outside the category of accidents and diseases already dealt with by the Act; (2) The disease had to incapacitate the worker from work for a period of more than one week (the minimum period for which compensation was payable under the Act); and (3) The disease had to be so specific to the employment that the causation of the disease or injury by the employment could be established in individual cases.
The Committee felt that diseases which were prevalent in a particular trade, but which also frequently affected persons in other occupations, although less often, had to be treated differently, due to the difficulty of establishing occupational causation in individual cases. It, therefore, recommended that:
"... where a disease is common in a particular trade and the same disease exists, but very rarely, outside the trade it may be right to make it the subject of compensation, even though the employer may be called upon to relieve the small percentage of cases which would occur among the men employed in the industry while due to causes unconnected with the industry."15
The Committee considered 42 diseases and recommended adding 18 to the Schedule. The 18 were added by Order of the Secretary of State on May 22, 1907. They included poisoning by nitro and amido-derivatives of benzene, carbon bisulphide, nitrous fumes, nickel carbonyl, arsenic, lead, and African boxwood; chrome ulceration, eczematous ulceration of the skin produced by dust or caustic or corrosive liquids, or ulceration of the mucous membrane of the nose or mouth produced by dust; epitheliomatous cancer or ulceration of the skin or of the corneal surface of the eye due to pitch, tar, or tarry compounds; chimney-sweep's cancer; glanders; and compressed air illness. Also added in association with 'mining' were mystagmus, subcutaneous cellulitis of the hand (beat hand); subcutaneous cellulitis over the patella (miners' beat knee), acute bursitis of the elbow, and inflammation of the synovial lining of the wrist joint and tendon sheaths. Three more, cataract in glassworks, telegraphists' cramp, and eczematous ulceration of the skin produced by dust or liquids, or of the mucous membrane of the nose or mouth produced by dust, were added by Order of the Secretary of State dated December 2, 1908. Today the British "Schedule" (regulations) prescribe more than 60 occupational injuries or diseases ("prescribed diseases").16
The original British Schedule of six industrial diseases was incorporated into the First British Columbia Workmen's Compensation Act of 1917.
Subsection 8(2) of the Act provided:
"If the workman at or immediately before the date of the disablement was employed in any process or industry mentioned in the second column of the Schedule, and the disease contracted is the disease in the first column of the Schedule set opposite to the description of the process, the disease shall be deemed to have been due to the nature of that employment unless the contrary is proved."
The effect, as under the British Act, was that:
"Instead of the workman having to prove that the disease was due to the nature of his employment, as he would have been obliged to do under the ordinary provisions of the Act, he was given the benefit of a presumption that it was so due if he was employed in one of the processes specified in the Act in relation to the disease at or immediately before' the date of his disablement."17
There has been little change since 1917. The British Columbia Schedule is currently referred to as "Schedule B". The presumption in the current statute is, in effect, still the same. The statute states that:
"If the worker at or immediately before the date of disablement was employed in a process or industry mentioned in the second column of Schedule B, and the disease contracted is the disease in the First column of the schedule set opposite to the description of the process, the disease shall be deemed to have been due to the nature of that employment unless the contrary is proved."18
There is no statutory guidance when or on what criteria Schedule B is to be amended. Amending responsibility is delegated to the Workers' Compensation Board but with no statutory direction on the process to be followed or criteria to be applied in amending the Schedule. Very generally, it can be said that in the past when the Board was satisfied that a particular disease is more likely to occur in a particular process or industry than elsewhere, it may have been added to Schedule B and have the benefit of the presumption.
Occupational diseases not included in Schedule B will be compensated. The disease may be recognized in one of three other ways under the statute.
The task and process for establishing occupational causation is more time consuming, difficult, administratively burdensome, and less certain because the presumption that applies to scheduled diseases and processes does not apply.
For a disease condition to be compensable in British Columbia, the Workers' Compensation Board must first decide that the disease which the worker suffers is an "industrial disease" as defined in the Act. "Industrial disease" means:
"any disease mentioned in Schedule B, and any other disease which the board, by regulation of general application or by order dealing with a specific case, may designate or recognize as an industrial disease, and 'disease' includes disablement resulting from exposure to contamination."19 (emphasis added)
Subsection 6(4)(a) of the Act gives the Board the power to amend Schedule B by adding or deleting diseases or processes or industries. Subsection 6(4)(b) further provides that:
"Notwithstanding paragraph (a), the board may designate or recognize a disease as being a disease peculiar to or characteristic of a particular process, trade or occupation on the terms and conditions and with the limitations the board deems adequate and proper."
From these subsections and the definition of industrial disease, there are four ways in which the Board may recognize an occupational disease:
The second requirement for entitlement to compensation is that the disease suffered by a worker must be "due to the nature of any employment in which the worker was employed whether under one or more employments."20 Therefore, there must be sufficient evidence to establish that the worker's disease has likely resulted from work activities or exposures. Put another way, there must be sufficient evidence to conclude that the work activities of the worker have likely had causative significance in producing the disease condition, or in aggravating and accelerating the course of a pre-existing underlying disease condition.
This is where the legal significance of Schedule B comes into effect. It is not with respect to the first requirement of recognizing a disease as an industrial disease, but on the second requirement that the disease be due to the nature of any employment in which the worker was employed.
The worker who suffers from a disease listed in Schedule B and who is employed in the process or industry set opposite it in the Schedule will not have to produce evidence in support of the proposition that the disease was due to his employment activities or exposures. Unless the presumption is rebutted by proof to the contrary, the disease will be deemed to have been due to he nature of the worker's employment. In practice, the presumption is rarely rebutted.
The significance of the presumption is demonstrated by an anomalous disease described in Schedule B as:
"Heart injury or disease including heart attack, cardiac arrest or arrhythmia, disease of the pericardium, heart muscle or coronary arteries\Where the worker is employed as a firefighter."
This provision first appeared in Schedule B in April 1954. Its inclusion at that time was reported to be the result of studies that suggested a higher incidence of coronary problems in firefighters due to the inhalation of carbon monoxide and other harmful gases. Since 1954 a number of firefighters in British Columbia would not have been compensated for cardiac problems in the absence of the provisions of Schedule B dealing with heart injury/disease.
In the daily adminstration of the statute this procedural/evidentiary advantage is a powerful tool for the afflicted worker who need not "prove his or her case" or become involved in what can be a detailed and complex adjudicative investigation of the claim. The Board's Claims Adjudicator must simply determine, based on the medical and factual evidence put forward, that the worker in fact suffers from the scheduled disease and that at or immediately before the date of disablement the worker was employed in the described process or industry. The Claims Adjudicator will normally rely on the diagnosis given by the worker's attending physician and upon information from the worker and employer about the nature and extent of the worker's employment activities.
Having concluded that the elements of Schedule B are met, the Claims Adjudicator will seldom be concerned with issues such as:
These are questions that may arise in the initial determination of the compensability of diseases to which Schedule B does not apply. In those cases, another approach to establishing causation, as in the case of an injury, applies.
The Board's Governors' published policy in Re Industrial Diseases - Decision No. 32621 addresses the issue of evidence and onus of proof. It states in part:
"Furthermore, since the compensation system in this province operates on an inquiry rather than adversary basis, there is no onus on the worker to prove his case. All that is needed is for him to describe his personal experience of the disease and the reasons why he suspects the disease to have an occupational basis. It is then the responsibility of the Board to research the available scientific literature and carry out any other investigations into the origin of the claimant's condition which may be necessary. There is, of course, nothing to prevent the claimant, his representative, or physician from conducting his own research and investigations, and indeed, this may be very helpful to the Board. However, the claimant will not be prejudiced by his own failure or inability to find the evidence to support his claim.
A claimant is also assisted in establishing a relationship between his condition and his work by Section 99 of the Workers' Compensation Act. That section provides that: "where there is doubt on an issue and the disputed possibilities are evenly balanced, the issue shall be resolved in accordance with that possibility which is favourable to the worker".
Therefore, if the evidence of a work relationship is equally balanced with the evidence of other causes, the benefit of the doubt is given to the claimant."22
When the presumption does not apply, the Claims Adjudicator embarks on a detailed investigation of the worker's condition and workplace activities. The Adjudicator is seeking to establish positive evidence that confirms there is a causative connection between the work and the disease condition. Without some positive evidence of causative connection, the claim cannot be accepted. To a considerably lesser extent, he or she may also look for negative evidence, which in practice is rarely forthcoming in an investigative process.
Some workers look upon this investigation as unnecessary and therefore an invasion of privacy, some type of inquisition, or a means of hair-splitting to avoid or evade responsibility. They mistrust the process and are defensive. Some employers fault the Board for not making extensive enough investigations into possible non-occupational causes.
In individual cases when a Board Claims Adjudicator determines that the merits and justice of the claim warrants the recognition of a disease condition as an "industrial disease", but the worker's disease is not listed in Schedule B or has not been previously designated or recognized by the Board as an "industrial disease", he or she may refer the claim to the Vice-President, Compensation Services Division. Under the published policy of the Board's Governors, the Vice-President is empowered to determine whether that disease is one which should be recognized as an industrial disease for the purposes of that claim and to make an order to that effect.23 Occupational causation must first be established. The Governors' published policy states:
"A disease which has been designated or recognized otherwise than under Schedule B is only compensable if it appears from the evidence in the particular case that the disease was due to the nature of any employment in which the worker was employed."24
The Governors' published policy also directs that while the presumption attached to Scheduled diseases does not apply, recognition of a disease under Subsection 6(4)(b)" ... should be just one step removed from inclusion of a disease in Schedule B. ... there would be a tendency to assume that the employment had something to do with the causation of the disease."25 No disease has ever been generally recognized under this subsection of the Act. Osteoarthritis of the first carpo-metacarpal joint of both thumbs was recognized under this subsection as being a disease peculiar to or characteristic of one worker's employment as a physiotherapist.
It must not be overlooked that a vast majority of claims that are accepted because of the presumption created by inclusion in Schedule B would have been accepted in any event. This is because medical research has established a high likelihood of causative connection between the diseases and processes or industries listed in Schedule B. Some argue that this is not true in all cases, especially pointing to heart injury/disease and firefighters.
Some argue that Schedule B is not necessary. Each claim should be looked at on its own individual merits, reducing any opportunity for error which might occur by the "automatic" application of a presumption. They argue that the Schedule only operates as a convenience to those who administer occupational disease claims by allowing "automatic" acceptance rather than a detailed and, at times, lengthy investigation into the circumstances of the claim. This administrative convenience also avoids the need for input from staff hygienists or opinions from Medical Advisors in the Occupational Health Department of the Board.
The argument is that "automatic" acceptance of claims means a certain opportunity for error will also "automatically" occur. Although the decision-making process would take considerably more time, effort and cost without the presumption, opponents to a schedule argue that better adjudication with less error would occur. In effect, they do not accept the trade-off accepted by the Samuel Committee in 1907 and the B.C. legislature since 1916.
Mr. Justice Tysoe in his 1966 Royal Commission addressed the question whether there should be a schedule.
"One or two individuals raised the question of the necessity of a Schedule. I have had some doubts about it myself. However, I cannot ignore the presumption in favour of the workman that is created by subsection (2) of section 8. That presumption has been in the Act since it was first enacted in 1916, and it is in the Acts in some of the other Provinces. It is of definite benefit to workmen. Compensation payments for deaths of several firemen who died from heart disease would not have been permissible had it not been for the presumption, and there may be other instances of a like nature. I do not think the assistance of the presumption should be taken away from workmen. This is not to say that it should be given in respect of every disease. In my opinion it should not be."26
One of the problems created by the existence of a schedule is that many who deal with the Board, and some who have administered the statute, have erroneously believed that there is no compensation for unscheduled diseases. Mr. Justice Tysoe concluded in 1966 that:
"... this lack of understanding existed within the Board itself, and it resulted in the Board contributing to the misconceptions that lay in the minds of labour."27
It has also led to some workers losing the benefit of the presumption or being denied compensation.
Those in favour of a schedule argue that eliminating such a "rule of entitlement" would simply add another significant barrier to numerous existing barriers to the acceptance of legitimate occupational disease claims. They believe that the availability of "automatic" acceptance overcomes adjudicator inconsistency, medical biases, technicalities, hair-splitting and other elements they say occur with adjudication in the ordinary course. This community also generally believes that occupational diseases are undercompensated in our system and that as many barriers as possible should be removed to rectify this situation.
Whatever the reasons for the belief that there is no compensation for unscheduled diseases or for scheduled diseases which do not meet the requirements of Schedule B, it is not a reflection of how these claims are currently administered.
However, the belief itself creates pressures to have diseases included in the Schedule. Inclusion has the social consequence of counteracting mistrust in individual case adjudication and giving recognition to the existence of a disease in an industry. Mr Justice Tysoe encountered this during his Royal Commission.
"There were all sorts of requests for the inclusion in the Schedule of innumerable diseases. I am afraid that some of those who put forward these requests had little regard for the principle that there must be a greater incidence of the particular disease in a particular employment than there is in the general population. Indeed, some paid no regard whatever to the matter of association with some particular employment."28
The most recent independent Canadian study of the issue was by Professor Paul Weiler for the Ontario government in 1983:
"I found a widespread consensus in my inquiry in Ontario that general presumptive standards should continue to be the basic tool for evaluating industrial disease claims."29
However, he further concluded:
"We should be under no illusion, though, that an industrial disease will ever be anything but a conundrum as long as we try to fit it within a program which requires a judgment about the cause of the disease."30
In an echo from Balfour in 1917, he discusses the merits of a comprehensive disability insurance program for victims of all diseases.
The historical significance of Schedule B has been more than creating a rebuttable presumption of causation. Its administrative value has been to produce efficiencies and consistency, although its existence has and can overshadow its role as only one avenue to establishing causation and entitlement to compensation for occupational disease.
Its social value has been to establish an institutional memory in a highly specialized area of scientific knowledge.
Its political value has been to draw attention to certain work processes and their consequences for the health of workers and society. This should bring attention to and create responsibilities and action for prevention by employers, workers, the Board and government.
Keeping Schedule B current through the exercise of delegated legislative authority was a centrepiece to the scheme of scheduled recognition. It was seen to have the benefit of taking the process off the main stage of political debate and to enable the participation of medical experts. Mr. Justice Tysoe recounted the evolution to 1966:
"The Legislature may, by its own motion and quite independently of the Board, add to or delete from the Schedule. In 1916 only the first six items were included in the statutory Schedule, by which I mean the printed Schedule which forms part of the Act and appears in the Statutes of British Columbia as the last page of the Act. In 1922 the Legislature added the seventh item to the statutory Schedule, in 1936 the eighth and ninth items, in 1943 the tenth item, and in 1954 the eleventh, twelfth, and thirteenth items. From time to time as early as 1918 the Board has added items to the Schedule. Such added items now total about 60. No deletions have ever been made.
The Board makes an addition to the Schedule with the approval of the Lieutenant-Governor in Council whenever it is satisfied from the advice it receives from the Board's Medical and Industrial Hygiene Departments that there is a substantially greater incidence of a particular disease in a particular employment than there is in the general population. Mr. Eades [Chairman] said: -
I think the test generally is: Is it common in that particular industry, and not common amongst the general public? Is it something specific to the industry?
Mr. John P. Berry, Chief Solicitor of the Board, in the course of his evidence, expressed some doubt as to the power of the Board to add diseases to the statutory Schedule prior to the enactment in 1954 of subsection (3)(a) of section 8. I share that doubt. Be this as it may, the Board has dealt with claims on the basis that its additions to the Schedule were validly made."31
Mr. Justice Tysoe further opined:
"...with the greatest respect, I question the necessity of making its exercise subject to the approval of the Lieutenant-Governor in Council. I have trouble in understanding how laymen can have the knowledge required to judge whether or not a particular disease in a particular industry qualifies for the presumption in subsection (2) of section 8 of the Act that attaches to a scheduled disease."32
When the first schedule was added to British legislation, a number of trades had been recognized or certified as "dangerous trades". There had been a "Departmental Committee on Dangerous Trades" in 1896 which had produced a long list of trades which it recommended as dangerous. The risks of carrying out those trades were self-evident. Acute poisoning to an individual by lead, mercury, phosphorus or arsenic presented in dramatic and unmistakable fashion. Mr. Herbert Samuel (later Viscount Samuel), Chair of the Departmental Committee reviewing diseases for inclusion in the Schedule, reported: "In the diseases that had been scheduled as attaching to particular industries, in 999 cases out of 1000 there could be no doubt at all that the disease was due to the employment."33
There was little need to gather scientific evidence to establish a causative connection between the work and the disease. Experience with the scheduled disease was expected to be a great inducement to employers to take adequate measures for preventing diseases as they arose, even before they became scheduled diseases. However, at the same time, while there were 17 trades certified as dangerous, only 6 of these were scheduled in the years following passing of the 1906 Act.34
Between 1916 and 1954 in British Columbia, 7 additional diseases were scheduled by the Legislative Assembly. Over the same period, the Board added approximately 60 items, which did not appear in the Schedule printed with the Act. At times, the Board likely followed the lead of Britain or Ontario. At times, amendments were made at the request of medical staff at the Board based on the accumulation of epidemiological evidence. On occasion, amendments were initiated outside the Board. Typically, this was as a result of submissions to the Commissioners of the day.
Amendments in 1943 and 1954 followed Royal Commissions on workers' compensation in British Columbia in 1942 and 1952.35 It was following the 1952 Royal Commission that the Legislative Assembly delegated authority to the Board, subject to the approval of the Lieutenant-Governor in Council, to add to or delete from the Schedule. The Board's Chief Medical Officer, in testimony before the 1952 Royal Commission, had outlined the Board's practice as follows:
"If satisfied that the disease was occupational in character, it is then added to the Schedule with retroactive effect in that case so that all medical bills of the claimant are paid as if the disease had been scheduled when contracted."36
In 1966 Mr. Justice Tysoe pointed out the confusion which had arisen because of the two ways of adding to or deleting from the Schedule, one by decision of the Legislature and the other by the Board. The Schedule published with the Act was not the full and complete Schedule. It did not include diseases added to the Schedule by the Board. He recommended that: "all industrial diseases to which the benefit of the presumption contained in subsection (2) attaches should be in one place available for all to see."37
Numerous parties retaking submissions to the Tysoe Commission requested the addition of a number of diseases to Schedule B. Mr. Justice Tysoe was not satisfied that the evidence presented to him would allow him to do that.
"In my opinion the evidence is not comprehensive enough, doubtless because those who put forward requests for additions to the Schedule did not fully appreciate that the matter is really one for doctors and experts in industrial hygiene who have available to them statistics and other information to enable them to determine whether the appropriate test is met. Accordingly, I shall do no more than recommend that the Board direct its attention without delay to a revision and consolidation of the Schedule and to the matter of obtaining the approval of the Lieutenant-Governor in Council to an entirely new Schedule."38
His recommendation to revise and consolidate the Schedule was implemented in 1968. The requirement for Lieutenant-Governor in Council approval for any amendment to the Schedule was also removed in 1968.39 Under the current Act, "The board may, on the terms and conditions and with the limitations the board deems adequate and proper, add to or deleted from Schedule B a disease which the board deems to be an industrial disease, and may in like manner add to or delete from the said Schedule a process or industry."40
The power of the Board to amend Schedule B on the "terms and conditions and with the limitations the board deems adequate and proper" is not accompanied by a regular review process. No notice requirement or amending formula is prescribed. A tradition of ad-hockery continued into the 1990's.
The last major revision to the Schedule was undertaken in 1980. Concerns by Board medical staff about the application of Schedule B to several specific claims prompted the review. The revisions were described as clarifying some of the already listed diseases and occupations and adding several new diseases and poisonings along with the appropriate description of the process or industry in which the disease may be found.
The revised Schedule was drafted without advice or input from the Board's adjudication staff. The culture of the day among those who managed the administration of occupational disease claims was that it was up to the Commissioners of the Board on their own initiative, prompted by whomever, to consider whether an industrial disease should be added to or deleted from the Schedule or be designated and recognized by regulation.
In November, 1979, the Board mistakenly forwarded a revised Schedule B to the Provincial Cabinet for approval. On November 30, 1979, (chairman Dr. Adam Little referred to recommended changes to the statute and Schedule B on a television program. Worker Advocate, Cathy Walker, inquired about the process and intended changes. As a result, the Board realized that it had received the independent authority in 1968 to revise the Schedule without reference to Cabinet.
The proposed revisions were sent to interested parties in December, 1979 and they were invited to reply. No data in support of the changes were distributed. The proposed revisions were described as housekeeping and an effort to use more precise terms as well as adding some conditions to the Schedule.
Approximately 40 groups sent briefs or letters to the Board on the proposed changes. Some changes were applauded, others were not. At a news conference Chairman Little said the Board wanted to clarify and expand Schedule B to provide "a more equitable application" of it to workers.41
Certain interested parties had called for public hearings into the proposed changes. It is reported in the press of the day that Dr. Little advised that the Commissioners had rejected that idea because such hearings had never been held in the past and that to hold such hearings every time the Schedule was amended would not be a proper execution of Board responsibilities. There had been two amendments to Schedule B between 1968 and 1979.
There was some debate about whether epicondylitis (tennis/golfers elbow) and carpal tunnel syndrome should be recognized as occupational diseases and added to the Schedule. Neither appeared in the revised schedule.
The "description of process or industry" for tendinitis/tenosynovitis was changed from work that required "excessive use" of the affected arm, leg, hand or foot to one requiring "unaccustomed and repetitive" use. This change drew criticism from a number of interested parties. We will come back to this later.
The Board reviewed the submissions received and on the basis of what it considered "adequate and proper" amended the Schedule. It gave no published reasons for the specific amendments and received considerable criticism.
The accompanying decision by the Board's Commissioners did discuss certain general principles about industrial diseases and some of the administrative difficulties associated with disease claims for compensation. One is establishing that the worker worked in the relevant process or industry at or immediately before the date of disablement. The difficulty is created by the fact that the description of the process or industry is and has always been general or generic such as "where there is exposure to arsenic or arsenic compounds" or "where there is exposure to airborne asbestos dust". There is only one industry or process described by occupation - firefighters. To qualify the generic or general descriptions to reflect medical knowledge about causation of the disease condition, modified descriptions such as "excessive exposure", "prolonged exposure", "prolonged contact", "repeated exposure", "excessive friction", and "unaccustomed and repetitive use" are used in the Schedule.
The use of these qualifying words is said to be unscientific, imprecise, inconsistent and to generate debate. The Commissioners were unable to find a better approach.
"Difficulties may also arise in determining whether the second requirement of Schedule B is satisfied. This often arises because of the use of such words as 'excessive' or 'prolonged'. While the Board would like to define more precisely the amount and duration of exposures required instead of using these words, it is usually not possible. The exact amounts will often vary according to the particular circumstances of the work place and the worker, or may not be quantified with sufficient precision by the available research. However, while such words are of uncertain meaning, there is valid reason for inserting them. They do at least indicate that the amount and duration of exposure to a particular contaminant must be something more than minimal. Individual judgment must be exercised in each case to determine their meaning, having regard to the medial and other evidence available as to what is a reasonable amount or duration of exposure."42
The decision on the revised Schedule was made June 18, 1980 and released at a news conference convened by the Board. This was a widely publicized event because Chairman Little unsuccessfully tried to expel Board critic and lawyer Craig Paterson.43
To illustrate some of the political, social, legal and administrative issues surrounding the amendment of Schedule B, we will focus on the subject of claims for conditions often referred to as "repetitive strain injuries" (RSI) or "cumulative trauma disorder" (CTD) in the aftermath of the 1980 amendment. These generally include tendinitis, tenosynovitis, bursitis, carpal tunnel syndrome, epicondylitis, hand-arm vibration syndrome, and certain other nerve entrapments.
The immediate community impression of the revised Schedule was that the Board had "considerably tightened the criteria" for tenosynovitis and tendinitis, which were reported to be approximately 25 percent of all occupational disease claims. Worker advocates reacted with a demand that the decision be reversed and the Schedule be revised.
In December 1982, Chairman Art Gibbons informed the B.C. Federation of Labour Safety Committee that the Commissioners would not consider revising the Schedule because the statute allowed sufficient flexibility for Board Adjudicators to investigate and decide each case on its merits.
This was perceived as a hollow response in light of claims experience, the confusion surrounding the effect of scheduling diseases and Mr. Justice Tysoe's endorsement of maintaining the presumption for scheduled diseases and processes. An added factor was a June 1982 Court of Appeal decision which held that the Commissioners had erred in a pneurnoconiosis case in interpreting the nature of the evidence required to trigger the presumption.44
For the B.C. Federation of Labour, the issue had become captured by a demand that the description in the Schedule be revised to replace the "and" between "unaccustomed and repetitive" with "or". Since tendinitis and tenosynovitis were added to the Schedule in 1968, the description had been "any process or operation requiring excessive use of the arm, leg, hand or foot". In 1980, it had been first proposed within the Board to replace "excessive" with "unaccustomed or repetitive" and not limit coverage under the previous Schedule. Later drafts contained only "unaccustomed". In the final decision, it became "unaccustomed and repetitive".
When the decision to amend the Schedule was not reconsidered by the Board, worker representatives took another approach. In 1983, they asked for the "body of evidence" on which the Commissioners had relied to determine that "unaccustomed" activity was the most significant cause of tenosynovitis and tendinitis in reaching their decision. While the Board sent some journal articles in reply, we can find no record of the 1980 material on which the Commissioners relied ever being made available to the community.
On August 8, 1985, Dr. Alex McDougall, the Board's Executive Director of Medical Services, sent a memo of Chairman Walter Flesher, with a copy to Commissioner Joan Nutter, informing them that a group of six physicians from the Board's Medical and Occupational Health Departments had considered the criteria for accepting "tenosynovitis, tennis elbow and tendinitis" as "entities related to industrial activity". They had consulted with Saskatchewan, Manitoba and Ontario Board medical departments. The six doctors had agreed on certain criteria. Their criteria specified that for tenosynovitis, tendinitis, epicondylitis distal to the elbow (tenosynovitis, tenovaginitis of the hand, wrist or forearm): "If 'tendinitis' is diagnosed in an individual who is occupationally performing frequent, repetitive, forcible movements of the wrist (and there is no known non-occupational cause for the condition) the tendinitis shall be deemed caused by the occupational activity." They also agreed on criteria for epicondylitis and shoulder bursitis/capsulitis. (See Appendix A)
Larry Stoffman, Director of Occupational Health and Safety for the United Food & Commercial Workers Union, Local 1518, and a member of the team that did the 1986 union report on "Integrating Ergonomics Into the Design of Laser/Scanner Checkout Systems" was an unrelenting advocate on this issue. Members of his union were particularly affected by the Schedule and the Board's policy and practice.
In June 1986, Mr. Stoffman addressed his concerns to Acting Chairman Glenn Hall as follows:
"Perhaps one day we shall see Board policy and its schedule of industrial diseases brought up-to-date, particularly for repetitive motion injuries where more recent, informative, and thorough medical literature is, in the main, at odds with Board policy. This would not only benefit many injured workers, but would make all of our jobs much easier. This debate over repetitive motion injuries has really come to a head, I think. Perhaps we can put it to bed soon."
His letter prompted internal correspondence at the Board. Dr. McDougall wrote Mr. R.W. Taylor, the General Manager of Compensation Services and Medical Services Division, informing him that the subject had been studied in August 1985 and criteria were established for considering tenosynovitis, tendinitis and epicondylitis.
The statement of criteria developed by the Board's Medical and Occupational Health Departments in August 1985 was sent to Mr. Stoffman on July 29, 1986 by Mr. Hall and described by him as the "Board's adjudication policy and practice". Further research on the subject was identified as a Board priority.
Within two days, Mr. Stoffman wrote back saying that the criteria do "... establish a reasonable and fair policy in this area". He urged that the criteria be published in the Workers' Compensation Reporter for all to know. He said that in the meantime he would "... inform claimants and their representatives, where appropriate, that a reasonable policy on repetitive motion injury has been developed by the Board's Medical Department". Publication did not occur.
Chairman Jim Nielsen wrote Mr. Stoffman on January 19, 1987, stating that the Commissioners had discussed the matter and had decided that a policy review was timely and useful. As a first step, a review of the literature would be undertaken by the UBC Department of Occupational Medicine. Mr. Stoffman, ever prompt in his replies, answered the next day. He was enthusiastic and offered to forward some material to UBC. He again urged publication of the Board's policy in the Reporter.
Unknown to Mr. Soffman, a literature study had already been undertaken. This study was forwarded to Mr. Soffman by Mr. Nielsen on March 6, 1987, as the promised review of the medial literature. It went on to state that: "Having completed the policy review, the Board has concluded that the current state of medical knowledge does not support a change in existing policy."
The Board retreated from its Medical and Occupational Health Department's criteria as set out in Dr. McDougall's memo. Mr. Nielsen said:
"The guidelines laid out in Dr. McDougall's memo represent some of the guidelines that must be considered in adjudicating a claim for a repetitive motion injury, but the memo goes too far in seeming to establish a presumption in the adjudication of these claims that is not contained in the Act... .
Since the Board is of the opinion that the current state of medical knowledge of repetitive motion injuries does not support a change of its policy in this area, it does not feel that there is a need to publish a decision in the Reporter."
The first reaction came from Dr. Clyde Hertzman, Director of Occupational and Environmental Health at the UBC Faculty of Medicine. He wrote to Mr. Nielsen confused because the UBC Department of Occupational Medicine had not done a literature review. He identified the Board's January 1987 literature review as a project undertaken by a resident in his Department while on rotation at the Board. He was concerned that: "Work produced by trainees who have incomplete qualification should not be given official status". Copies of Dr. Hertzman's letter went from him to everyone in the community involved in the discussion.
Mr. Nielsen replied that the trainee's review had been "... only one source of information which the Board used in coming to its conclusion on policy for repetitive strain injuries". We are still searching for the other sources in the Board's files.
After a short time, Mr. Stoffman sought through correspondence to start the process again. Dr. Hertzman, who was receiving copies of the correspondence, wrote Mr. Nielsen and Ken Georgetti, President of the B.C. Federation of Labour, that he was reading the correspondence "with increasing sadness". He suggested a process " ... to bring the discussion into the open and give it a more scientific basis that would be useful in future policy deliberations".
In the spring of 1988, the Board co-sponsored a conference on cumulative trauma disorders at the Board. Papers were presented by medical experts from B.C. and elsewhere. Throughout the summer and fall, the Commissioners worked on drafts of a decision on "Repetitive Motion Injuries to the Arm" for publication in the Reporter. (See Appendix B)
In February 1989, Mr. Stoffman wrote Acting Chairman Bill Greer forwarding a copy of the 1986 letter enclosing the August 1985 criteria and saying that: "We are of the opinion that these views accurately reflect current knowledge in the field which should be reiterated and applied as Board policy on these claims". He asked that the Board adopt the criteria recently enunciated by the Centre for Disease Control and National Institute for Safety and Health.45
Dr. Tony Nichini, Executive Director, Medical Services Division, replied in July that:
"In view of the pending appointment of the Board of Governors...a moratorium has been placed on all further Board policy statements.
It is hoped that the Board of Governors will review the matter on their appointment and if they agree promulgation of the policy decision will be announced."
It is into this policy vacuum that the Governors and Appeal Division stepped in June 1991.46 The Appeal Division's first decision on epicondylitis was greeted by many as an effort to invade and usurp the policy jurisdiction assigned to the Governors. It created a mild uproar among certain of the Board's adjudication staff and for a brief time within the Board was the focus of debate over the restructuring of authority at the Board.
The decision was published in the Reporter.47 With only two sentences on epicondylitis and carpal tunnel syndrome in the published policy in the Board's Rehabilitation Services and Claims Manual and nothing on tenosynovitis and tendinitis, this was the first published statement from the Board in over a decade. Since then, there have been a number of Further Appeal Division decisions on epicondylitis, tendinitis and carpal tunnel syndrome.48 Competing views among decision-makers within the system, advocates in the community and workers and employers are focused on individual Adjudicator, Review Board, Appeal Division or Medical Review Panel decisions.
The unhappy fact is that a decade of opportunity to address these industrial conditions had been missed. The loss has meant confusion and frustration. There has been a great cost to the credibility and integrity of the front line adjudication process which has had to try to find the correct course with no, or confusing, direction from above.
The body of evidence on which the 1980 decision was based has not been made public. The Board's doctors developed criteria in 1985 that the concerned worker community found "reasonable and fair policy", but the Commissioners found went too far. A literature review in 1987 by a trainee was cited as a statement of the state of medical knowledge to support the 1980 decision and to conclude that the Board's doctors went too far. Later it was said to be only one source of information relied upon. However, the other sources were not disclosed.
Administratively, there was confusion and bickering within the Board among and between doctors and adjudicators and more senior decision makers. Legally there was fertile ground for argument and a treadmill of appeals to the Review Board, Commissioners and Medical Review Panels. Socially there was distrust and discrediting of the Board. Politically there was unending complaints to the Ombudsman, members of the Legislative Assembly, open-line talk shows, editors and so forth.
All of this contributed and still contributes to a great amount of friction. It has meant a lost opportunity to develop and pursue occupational health strategies for education and prevention in this area.
The Board has not maintained ongoing scientific review of claims experience and medical knowledge. There has been no public process by which the worker, employer, medical or advocate communities can bring issues to the Board.
Repetitive strain injury is only one of the issues that confronts the Governors as they seek to sort out the remnants of this neglect of policy review and development on occupational diseases. The first priority has been to put into place a permanent process that respects the delegated responsiblity of amending and updating Schedule B.
Governance and final appellate decision making at the Board was restructured in 1991. The Workers' Compensation Amendment Act, 198949 proclaimed on June 3, 1991, enacted the unanimous recommendations submitted to the Minister of Labour and Consumer Services on October 31, 1988 by the Advisory Committee on the Structures of the Workers' Compensation System.50 This thirteen-member Committee consisted of worker, employer and government representatives and the Chairman of the Board.
Prior to this legislation, the Board consisted of "Commissioners" appointed by the Lieutenant-Governor in Council, one of whom was appointed as Chairman.
The Commissioners exercised the delegated law-making and policy development function for the entire workers' compensation system and, in doing so, interpreted the Workers' Compensation Act and other legislation for which the Board is responsible. The Chairman acted as the chief administrative officer of the Board in implementing those policies. The Commissioners, including the Chairman, constituted the final quasi-judicial (non-medical) appeal level in the system. They weighed the evidence and applied the Act and their policies to the circumstances of individual workers and employers. In exercising this function, the Commissioners considered and ruled upon the legality of their interpretations of the Act and of their policies.
As of June 3, 1991, the Board was restructured, providing for a separation of policy-making, administrative and quasi-judicial functions. Under the new structure, "Governors" have been appointed by the Lieutenant-Governor in Council in accordance with certain statutory requirements. The Governors exercise the policy-making function for the workers' compensation system and, in connection with this function, interpret the Workers' Compensation Act and other legislation for which the Board is responsible.51
Ultimately, it is the Governors who must ensure that the system is operating in accordance with the spirit and intent of the Workers' Compensation Act and other legislation for which the Workers' Compensation Board is responsible.
From their appointment, the Governors have chosen to institute renewal and reform of the board based on values that should characterize an administrative agency, namely openness, accountability, fairness, effectiveness, economy and efficiency, comprehensibility, principled and authoritative decision-making and integrity.
The Governors appoint a President and Chief Executive Officer and a Chief Appeal Commissioner of the Workers' Compensation Board who are responsible for implementing and applying the Governors' policies. The Chief Appeal Commissioner is responsible for the exercise of the final quasi-judicial (non-medical) appeal function in the system. Under her direction, the newly created Appeal Division weighs the evidence and applies the Act and the Governors' policies to the circumstances of individual workers and employers. In the context of doing so, the Appeal Division considers and rules upon the legality of the Governors' interpretations of the Act and of the Governors' policies.52
The primary purpose for restructuring the Board was to institutionalize ongoing involvement by workers, employers and others, but not government, in the workers' compensation system. This has been accomplished through the appointment of representative voting Governors. There are thirteen voting Governors - five representative of workers, five representative of employers, two representative of the public interest and the Chairman. The President and Chief Executive Officer and the Chief Appeal Commissioner are non-voting Governors by virtue of their offices.
The general representative nature of the voting Governors is enshrined in the Act. Ten of thirteen voting Governors are appointed to represent workers and employers. They hold the predominant place because workers and employers are the persons most profoundly affected by the exercise of the Board's statutory authority. Two Governors are appointed to represent the "public interest" because society as a whole has an interest in the important social policies reflected in the Workers' Compensation Act, the Workplace Act and the Criminal Injury Compensation Act administered by the Board.53
The voting Governors started their work by agreeing and subscribing to a common expression of their roles and responsibilities.54 The Statement of Roles and Responsibilities deals with, among other things, the legislative role of the Governors. It states in part:
"The governors are 'legislators'. They are policy-makers vested with broad discretion in many areas. The constituencies of the representative governors are broadly based.
As with any body of 'legislators' representing diverse, and often conflicting, interests, the representative governors may be partisan. Debate among the governors during meetings may therefore be vigorous. This situation was intended and will be healthy for the workers' compensation system.
Partisanship may also engender external debate in the community. This situation, too, was intended and will be healthy for the workers' compensation system. Each governor will encourage this debate and support the rights of the parties of interest to participate and to make their views known on particular issues.
It is the role of the governors to debate questions within the Board of Governors before decisions are made. Once the Board of Governors has made a decision, it is the duty of any governor who may disagree with the decision to notify the Board of Governors before publicly expressing disagreement with the decision.
It is the role and duty of each representative governor to seek to know and to understand the general, broad interests of the constituency he or she is intended-to represent. It is also the role and duty of each representative governor to seek to know and to understand the general, broad interests of other constituencies and individuals upon whom the exercise of the statutory authority of the WCB impacts."55
The Governors imposed discipline in their proceedings by adopting a procedural bylaw.56 This bylaw deals with the conduct of meetings, setting agendas, conflicts of interest, corporate records and the like.
Having established the ground rules, the Governors then took an "activist" role towards fulfilling their policy-making responsibilities. Based to a large extent on the issues raised by interested parties from the compensation community, the Governors decided in September 1991 that immediate priority would be given to seven issues. One of those issues was "The Amendment of Schedule B (and Industrial Diseases)".
Issues relating to the amendment of Schedule B were referred to an ad hoc committee of Governors. In completing their initial consideration, the Governors on the ad hoc committee were influenced by Free general themes relative to policy review and development: (1) the need for the personal involvement of all voting Governors in the policy review and development process; (2) a preference to involve line officers, persons who have the first-hand experience with the potential day-to-day difficulties of applying existing policy and who are familiar with the concerns and frustrations of workers and employers who are impacted by those policies; and (3) the need for consultation with the public, which may involve Governor contact with their constituents, seeking advice from opinion leaders in the compensation community, or consulting the public at large.
The Governors ad hoc Schedule B committee realized that the issues surrounding the administration of claims for occupational diseases went well beyond a simple review and revision of Schedule B. This is particularly evident when one considers the various ways in which a medical condition might be classified as an "industrial disease" under the terms of the Act. An unavoidable fact is that many occupational diseases are multi-causal in nature.
What amounts to sufficient evidence to determine work causation, whether at the general level of recognition of an "industrial disease" or at the level of the adjudication of individual claims, can be a matter of substantial controversy. In addition, scientific knowledge in the area of occupational diseases is advancing on a continuous if not accelerating basis. The recognition and prevention of occupational disease is also of considerable importance to the occupational health and safety mandate of the Board.
The result of the deliberations of the Governors' ad hoc Schedule B committee was to constitute under the terms of the Governors' Procedural Bylaw a permanent Industrial Diseases Standing Committee ("IDSC").
In order to reflect the composition of the Board of Governors as a whole, the IDSC consists of two worker representative Governors, two employer representative Governors, one public interest Governor, and the Chairman of the Governors. The initial members of the IDSC are worker representative Governors Lief Hansen (President, United Food & Commercial Workers' Union, Local 200; Vice-President B.C. Federation of Labour) and Stanley Shewaga (President, Pulp, Paper and Woodworkers of Canal), employer representative Governors Robert Buckley (Chief Safety Officer, Cominco Ltd.) and Murray Farmer (President, Commercial Crane Ltd.; Vice-Chairman, B.C. Construction Association), and public interest representative Governor Dr. Bonnie Hayes (Clinical Psychologist, University Hospital, Shaughnessy Site) and Chairman James E. Dorsey.57
It is in the policy and process vacuum referred to earlier that the IDSC has begun its work. A copy of the IDSC charter of April 6, 1992 is Appendix C.
The primary role of the IDSC is to review the Board's policies on industrial/occupational diseases "and to make recommendations for change to the Governors". It is the full Board of Governors that is responsible for making final decisions.
One of the first items of business was to "develop an operating procedure setting out the manner in which the Committee shall conduct its business".58 After much discussion and debate, the members of the IDSC agreed to a set of procedural bylaws dealing with a number of matters including "Operating Procedures". Bylaw No. 1 of the IDSC was approved by the Board of Governors on August 10, 1992.
One of the responsibilities of the IDSC as set out in its Charter is to completely review all entries currently within Schedule B and the list of diseases designated or recognized by the Board as industrial diseases by regulation, and to make recommendations to the Governors for updating the Schedule by April 6, 1994.
Bylaw No. 1 directs the IDSC to "operate in a fashion which is participatory, consultative, open, accessible, comprehensive and fair, with a view to fostering the greatest possible confidence in its recommendations."59 Further that "any recommendations which the Committee may make to the Board of Governors shall be based on sound scientific and medical knowledge."60 The Chair of the IDSC must make an annual report which will be published in the Reporter.
The IDSC has wide-ranging authorities over the method by which it will obtain input and advice from the compensation community, including the medical community. To ensure that it is relying on "sound scientific and medical knowledge", the IDSC "may establish minimum acceptable methodological standards for any research that the Committee may rely upon in making recommendations to the Board of Governors." To further that resolve, the IDSC has retained an external medical consultant with expertise in epidemiology to draft a framework for the "critical appraisal" of research and other publications that may be made available to the IDSC. It received public review before adoption and will be published in the Reporter.
The IDSC has also established the Industrial Disease Secretariat,62 to assist the Committee in fulfilling its duties and responsibilities. In addition to performing many of the day-to-day administrative tasks, the Secretariat is involved in "producing reports, commentary, or other advice as may be within its expertise and as may be requested by the Committee."63 As such, the Secretariat is to include at least one staff member knowledgeable in the administration of industrial disease claims. In this way, the IDSC can have the advantage of staff experience in the day-to-day interpretation and implementation of the very policies under review. Although the staff appointed to the Secretariat are appointed by the Vice-President, Compensation Services, they take direction and instruction directly from the Committee. One of the co-authors of this paper 64 has been appointed to the Secretariat.
To fulfil its mandate, the IDSC has had to make decisions about what issues will be addressed, in what order and what will be the scope of initial review. The size of the task dictates that the review has to be handled in a well organized fashion. In keeping with its stated operating principles, the IDSC, through the Secretariat, sent out a letter in mid-July 1992 to representative members of the compensation community65 seeking their views on what issues are of interest or concern to them relative to the administration of occupational disease claims. Over 550 letters were mailed out. By mid-November over 50 responses, some representing multiple groups/members, were received by the Secretariat.
With the assistance of the Board's Statistical Services Department, the Secretariat obtained data on the number and type of "industrial disease" claims administered in the Special Claims Unit over the period 1987 to 1991 where wage loss, pension benefits or fatal benefits were paid. Regrettably the statistical data captured by the Board in the past is relatively scant and, accordingly, the information that could be made available to the IDSC was correspondingly poor in some respects. As the Board develops future information strategies generally, it is hoped that this critical information will be captured. As a stopgap measure, the Secretariat arranged for the completion of a questionnaire by the adjudication staff of the Special Claims Unit on types of claims handled, policy issues of concern to them, and the like.
It is an almost universal view that the primary current issue facing the IDSC is policy on the administration of claims for injuries/conditions commonly referred to as "repetitive strain injuries" or "cumulative trauma disorders" - usually affecting the upper extremities. Other terms for essentially the same type of injury/condition include "overuse syndrome", "myofascial pain syndrome", "hand/arm syndrome", and "repetitive motion injury". None of these general terms describe a particular diagnosed condition, rather they describe a group of conditions which are commonly grouped together for a number of reasons. They are essentially a collection of health problems that are frequently considered to have been caused by or aggravated by work activities. The specific diagnosed conditions making up this group of health problems includes tendinitis, tenosynovitis, tenovaginitis, epicondylitis, bursitis, carpal tunnel syndrome and certain other nerve entrapments affecting the hands/arms, and hand-arm vibration syndrome.
Policy review and development at the Board occurs in the context of an ongoing administration of the Act with its attendant disputes and novelties in individual cases. In the context of occupational diseases, an adjudication group in Richmond called "The Special Claims Unit", distinct from other units designated by number or regional office location, is assigned primary responsiblity. An understanding of its role is crucial to understanding the potentialities and limitations inherent in trying to translate theory into efficacious policy.
The need for a specialized claims unit was recognized within the Board during the early 1970's. The rationale for its creation was to centralize the administration of complex and infrequently encountered types of claims in a small adjudication staff who had the necessary specialized training, resources and experience to deal with these claims. The Special Claims Unit (SCU) came into existence in 1973. It had three Claims Adjudicators. Bryan Baillie, now an independent compensation consultant (a calling for some former Board employees), was the manager of the SCU from 1975 until September 1989.
The designation of the Unit as "special" had an internal administrative focus. Externally it sometimes had an unintended and traumatic effect. Frequently workers across the province enquire, wonder, worry and fear that their claim has been sent to the "Special" unit in Richmond. "Why has my claim or have I been singled out for special treatment?" They sometimes ascribe sinister motivation to the Board. A few have even enquired whether racism is at work in the transfer of files to the SCU.
At the time of its creation, the administration of claims for industrial disease, where no specific event or incident was known to have caused the disability, was not the primary focus or impetus for its creation. These claims were just one reason for its creation. Over the years, a number of factors have impacted on the SCU. The administration of other types of complex or infrequently encountered claims was added to its mandate. More importantly, the number and categories of claims for "industrial disease" increased dramatically. Between 1973 and 1992 the number of occupational disease claims for which there was time lost from work has increased from 915 to 7,200. While it dipped noticeably in the mid-1980's, the overall trend is clearly upward.
The day-to-day administration of these claims has and continues to grow ever more complex. Workers are more aware of the compensability of these conditions, particularly since the introduction of WHMIS regulations (Workplace Hazardous Materials Information System).66 Medical knowledge has advanced significantly as has public education with respect to medical issues. The number of knowledgeable, independent worker and employer advisers and advocates (including former Board employees) is growing.
Currently, the SCU consists of 53 persons - 16 Claims Adjudicators, 4 Vocational Rehabilitation Consultants, a Manager, 8 Case Assistants and 24 support staff including a Support Services Manager. They have access to 6 Medical Advisors in the Occupational Health Department, as well as to all regular Board Medical Advisors in the Richmond and other offices for non-disease claims.
Unlike the other claims units, the SCU does not have Claims Officers at the present time. Claims Officers are Board employees in the adjudication process who administer a higher volume of generally lower complexity claims than a Claims Adjudicator. For example, some Claims Officers have the authority to pay short term time loss of approximately ten days or less on straight forward, undisputed claims. Other Claims Officers have authority to process somewhat more complicated claims involving longer periods of time loss. Some occupational disease claims are adjudicated by Claims Officers in other units, both in Regional (or "Area") Offices and Richmond. Most of them do not have the specialized training or experience of the SCU Claims Adjudicators.
Currently, most disease-claims that do not result in the loss of work time due to disability are not administered in the SCU. Time loss is defined as the worker actually losing wages from work beyond the date of injury due to some disablement. It does not include benefits payable in the form of medial aid. For example, if a worker who was otherwise not disabled was required to miss time from work in order to attend medical appointments such income loss would be considered a medical aid payment and the claim would remain a no time loss claim. When the no time loss claim is first established, it is assigned to a Claims Officer in the office closest to the residence of the worker. Any medical questions are normally referred by that Claims Officer to the Medical Advisor in that office.
A Claims Officer cannot disallow a claim. As a result, if Claims Officers determine that they cannot accept the no time loss claim and if such a conclusion is supported by a medical opinion from a Board Medical Advisor, the claim is transferred to the SCU for further consideration. If the SCU Claims Adjudicator determines that the claim cannot be accepted as a Board responsibility, a formal decision to that effect is communicated to the worker and other relevant parties. If, upon farther investigation, the no time loss claim is found to be acceptable, the SCU Claims Adjudicator will normally accept and administer that claim.
A significant number of time loss disease claims start out as no time loss claims. Any no time loss claim which has been accepted by a Claims Officer is transferred to the SCU when any period of disablement results. The general principles of adjudication of disease claims, whether they are time loss or no time loss, remain the same. There are instances where a claim which has been accepted by a Claims Officer will be re-adjudicated and disallowed when it is reviewed by a Claims Adjudicator in the SCU.
In addition to administering industrial disease claims, which exceed three-quarters of the claims administered in the Unit, the SCU handles:
The administration of fatal claims was part of the Unit until 1990, when it was transferred to the Board's disability awards administration. All non-traumatic hearing loss claims are administered in the SCU.
While the SCU's workload has shifted to a greater focus on more complex and contentious disease claims and it has grown from 3 to 16 Claims Adjudicators over the past twenty years, the Board has not developed the necessary training and ongoing education to support SCU Adjudicators and Vocational Rehabilitation Consultants. Basic adjudication training for new Adjudicators includes a two hour lecture from a senior SCU Adjudicator on occupational disease issues. Training in SCU is essentially on the job and not systematic beyond an initial week of formal training in the Unit. On-the-job training is under the guidance of a more senior SCU Adjudicator.
As more senior SCU Adjudicators leave to retire, accept promotions, make transfers, or for other reasons, their experience has been effectively lost. Since May 1988, 6 SCU Adjudicators have become Compensation Services Managers. While Adjudicators came to and left the SCU, community advocates and Review Board and Appeal Division decision makers have accumulated knowledge and experience that exceeds that of some of the decision makers in the Unit. Although SCU Adjudicators often have claims experience before assignment to the SCU, their occupational disease experience is gained only while working in the SCU. The disease experience of the 16 SCU Adjudicators ranges from 7 months to 17 years. The average and median disease claims experience of Adjudicators in SCU are 4.25 years and 15 months respectively.
To try to fill the gap since 1989, the Unit with Mangers Rob Ingraham and now Diane Gerwin instituted monthly meetings including matters intended to foster collective learning. As a group, they developed and in 1991 adopted a resource manual containing disease information, practice notes and forms of decision letters which they update as needed. The manual is publicly available on request. No similar activity extends to Claims Officers or others in other Richmond Units or Area Offices adjudicating disease claims.
Vocational Rehabilitation Consultants receive no specialized training or disease related rehabilitation instruction other then on-the-job training.
From the perspective of those who work in the SCU, there are significant differences in delivering the entire range of compensation and rehabilitation services for claims involving occupational diseases arising out of employment from claims that deal with a specific incident or definable activity that has resulted in a personal injury. A different mind set and a different set of skills is required.
For many personal injury claims, there has been some identifiable event to which the worker attributes his injury. The Adjudicator must determine whether such injury has arisen out of and in the course of that worker's employment. Analysis of the claim normally focuses on that event, which most often marks the beginning of symptoms.
Most disease (and non-traumatic carpal tunnel syndrome and epicondylitis) claims involve a slow or gradual onset of symptoms which cannot be related to any identifiable event. Some workers simply attribute their disease to the general nature of their employment. The initial adjudication of such claims, in the absence of the application of the Schedule B presumption, may involve an analysis of many factors and circumstances surrounding the worker's employment duties.
Specialized knowledge of the etiology of certain diseases and of the multiple risk factors which have relevance are necessary for the administration of these claims. On some of the more difficult claims, it is also necessary to have access to specialized medical advice. Many of the inflammatory conditions present variable rates and degrees of recovery as a result of a multitude of factors. Some diseases, such as tendinitis, also require certain specialized skills in ongoing administration and attempts at returning the injured worker to productive employment.
Most familiar with the day-to-day administration of the SCU praise the idea of its creation and those who have contributed to the operation of the Unit since its inception. The compensation community has generally recognized and supported specialization in the administration of occupational disease claims. For example, one forestry company in a letter to the Board dated July 28, 1992 stated in part:
"We would like to see the WCB use its most experienced Claims Adjudicators for Industrial Disease claims. These claims are complicated and demand a detailed knowledge of medical conditions and workers' compensation law and policy. We have been advised that these claims are handled by the Special Claims Unit in Richmond and we think that this centralization of a specialized function makes sense."
Some want greater specialization. The B.C. Federation of Labour in a letter to the Board dated September 8, 1992 stated in part:
"Our affiliates have expressed concern with the current distribution of work throughout the Special Claims Unit, in that there appears to be a need for a greater degree of specialization owing to the complex nature of many I.D. claims."
For a number of years within the Board, the SCU has advocated a restructuring so that it almost exclusively administers claims for all occupational diseases, both time loss and no time loss. This would involve bringing into the SCU a significant number of no time loss disease claims which are presently administered throughout the Province, and transferring out of SCU most of the claims that have no bearing on occupational disease.
Advocates of this restructuring believe that centralization of the administration of occupational disease claims will allow the SCU to focus on what it does best and has the following advantages:
The 1991 administrative inventory of the Board's Compensation Services found:
"There are many challenging and stressful jobs in an agency such as the WCB, but few compare with that of the Claims Adjudicator. Serving in the very front line of the agency, the Claims Adjudicator' position requires an incredible balancing of skills and abilities. It requires an understanding of the law and WCB policies that cannot be acquired quickly; the WCB Rehabilitation Services and Claims Manual runs to several hundred loose leaf pages. Great care and tact is needed in dealing with claimants, attending physicians and other health care providers, employers, advocates, medical advisors, and the WCRB. Apparently, this job is doable since the agency functions quite well most of the time. That is a tribute to the skill and dedication of these adjudicators.
But is seems clear that the agency continues to heap an excessive burden on these people."72
As the IDSC and Governors develop new policy and refine existing policy, and as workers and employers make demands on the Board, they must remain alert to the ability of existing resources in the administration to deliver service at the street level of the Board's bureaucracy. Drawing on the SCU to staff the part-time Secretariat for the IDSC is intended to maintain the two-way link between the policy makers and service providers.
8. CONCLUSION
The Governors through the Industrial Diseases Standing Committee are carrying on the work of the 1906 British Departmental Committee. Many of the issues current then are still the subject of lively debate.
In the intervening decades, the process of review and recognition of occupational diseases for compensation and prevention strategies was sometimes neglected, sometimes misunderstood and perhaps occasionally abused. Current governance of the Workers' Compensation Board is seeking to learn from and avoid the errors of our predecessors while building on their accomplishments.
The Charter and Bylaws of the IDSC embody the Committee's focus and purpose of assisting Governors in carrying out the Board's legislative mandate with respect to occupational diseases.
Its open and consultative procedures will build on our accumulative human experience. Its work will never be finished in light of the constant changes taking place in the body of knowledge available. Its work will not be obscured or inaccessible, but will be readily available for all who come after to build future policy development.
March, 1993
AUTHORS' UPDATE (January 1995)
The name of the Governors' Committee was changed to the "Occupational Diseases Standing Committee" and the Charter which appears as Appendix C was amended by substituting the term "occupational disease" in the place of "industrial disease" wherever it appeared. See 10 WCR 305.
| Form 17B14 | Route to: |
| MEMORANDUM | |
| FROM TO | TO |
| Location Richmond Dept10-00 | Location Richmond Dept15-00 |
| Name Dr. A.D. McDougall | Name W.R. Flesher, Chairman |
| Subject _____________ | Copies to J.M. Nutter, Commissioner |
| Your Our | |
| File No. ___________ File No. _______ | Date 08 August 1985 |
Re: Tenosynovitis, Tennis Elbow, Carpal Tunnel Syndrome, Etc
The subject of tenosynovitis, tennis elbow and tendinitis was considered by a group of physicians from the Medical Department and Occupational Health Department, including Dr. W.S. Whitehead, Dr. G.J.Renwick, Dr. G.M.Dewar, Dr.A.I.E.Nichini, Dr.J.G.Noble and Dr.A.D.McDougall. The clinical aspects of these conditions and the criteria for accepting them as entities related to industrial activity was discussed.
In addition, other Canadian jurisdictions were approached regarding their handling of tenosynovitis, tennis elbow and tendinitis. These were as follow:
Saskatchewan - Dr.George Elliott:
Dr. Elliott felt that they had significant difficulties in handling this type of claim. He pointed out that under their act the presumption is always that the condition arose out of the work injury and it is necessary for them to prove otherwise.
Dr. Elliott says that they have had a marked increase in the number of tenosynovitis, tennis elbow and carpal tunnel syndromes recently. He stated that they have no definite policy, but in general cases are only turned down if there is evidence of outside activity such as sport activities or hobbies which would be more probable to have led to the condition. They also look closely for any systemic disease which may be the cause of the condition.
Dr. Elliott stated that on the basis of their present criteria they accept nearly all of these cases for which claims are made. He also said that they do not believe that the length of time which an individual has worked at a particular job is of significance in deciding whether the claim should be accepted or not.
Manitoba - Dr.Ken Wylie:
Dr. Wylie stated that they have had a marked increase in these types of claims in Manitoba.
Dr. Wylie felt that tenosynovitis was not a difficult problem with them since it tends to be an acute situation which arises from a specific activity but it subsides fairly quickly with rest. He says their main aim is these cases is to limit time loss.
He said, however, that they have real problems with tennis elbow and it is his belief that the situation is aggravated by a tendency to overtreat this condition. Dr. Wylie says that the majority of these claims, however, are accepted, but there are certain factors which they consider. He said that they believe that there must be stress or force in order to initiate this condition. They are also very dubious about a claim if the symptoms are bilateral.
Manitoba also does not believe that the time a person has been at a particular job is of significance in deciding whether the claim is acceptable or not.
Dr. Wylie said that their guidelines for accepting these were very vague and they tended to accept the majority of them, but they do also try to bring all claimants for these conditions in very early for examination and then they try to force the issue with the attending physician for early return to work.
Ontario - Dr. Emerson Dowd:
Dr.Dowd stated that these conditions come under their Schedule 3, that is, the industrial diseases.
Dr. Dowd said that their criteria for accepting these are not very specific. He said that they state that there should be repetitive action but he then says, "What is repetitive?" He says that they also feel that there should be some degree of strain or force, but he says this may be difficult to assess and he give the example of the power screwdriver which tends to exert a kick at the end of the action.
Dr. Dowd said that factors which they do not consider of significance is the time that the patient has been working at the work since they believe that the patient may have performed the action somewhat differently and therein lies an "incident". They also do not think it is significant if other persons are doing the same job and do not develop the condition.
Dr. Dowd said they do look very carefully at any case where the symptoms and signs are bilateral and they do try to rule out any systemic disease.
In the final analysis, however, Dr. Dowd stated that claims are really only rejected if it can be established that there was outside activity which was more liable or probable to have caused the condition.
On the basis of the discussion, the members of the committee agreed on the following:
Tenosynovitis, Tendinitis, Epicondylitis
Distal to the Elbow (Tenosynovitis, Tenovaginitis of Hand, Wrist or Forearm):
If "tendinitis" is diagnosed in an individual who is occupationally performing frequent, repetitive, forcible movements of the wrist (and there is no known non-occupational cause for the condition) the tendinitis shall be deemed caused by the occupational activity.
T/L under 3/52
Elbow (Epicondylitis):
If "tendinitis" is diagnosed in an individual who is occupationally performing forcible, frequent, repetitive movements of the forearm or wrist (and there is no known non-occupational cause for the condition) the tendinitis shall be deemed caused by the occupational activity.
T/L 2/52 to 18/12
Shoulder (Bursitis, Capsulitis):
If tendinitis is diagnosed in an individual who is occupationally performing frequent or prolonged use of the arm above the horizontal plane (and there is no known non-occupational cause for the condition), the tendinitis shall be deemed caused by the occupational activity.
T/L 2/52 to 12/12
Age a factor in length of disability.
In all the above groups, degree of manual labour affects the claimant's ability to return to work and also chance of recurrence or aggravation.
THE FINDING OF SUITABLE EMPLOYMENT WOULD BE THE GREATEST SAVER OF TIME LOSS AND COST.
Dr.Whitehead and myself are prepared to meet to discuss this further.
A.D.McDougall, M.D.
ADMcD:sw
DRAFT WORKERS' COMPENSATION REPORTER DECISION NO.
RE: REPETITIVE MOTION INJURIES TO THE ARM
October 24, 1988
Board Decision considered by:
J.A.Nielsen, Chairman
B.M.Korman, Commissioner
J.M.Nutter, Commissioner
E.Wood, Commissioner
The Board has carried out a review of its policy concerning claims for tenosynovitis, tendinitis, bursitis, carpal tunnel syndrome or epicondylitis where there has been no specific work incident, but the condition of the arm is said to be due to repetitive physical activity at work.
As a result of the definition of "industrial disease" in Section 1 of the Workers' Compensation Act and Schedule B, bursitis, tenosynovitis, and tendinitis are industrial diseases. Claims for these conditions are adjudicated under Section 6(1) and 6(3) of the Workers' Compensation Act. The Schedule B entries for these conditions are as follows:
| Bursitis | Where there is excessive friction,
rubbing or pressure on the bursa involved |
| Tenosynovitis, tendinitis | Where unaccustomed and repetitive
use of the affected arm, hand, leg or foot is required |
According to item #13.11 of the Rehabilitation Services and Claims Manual, epicondylitis and carpal tunnel syndrome are considered to be personal injuries and are therefore adjudicated under section 5(1) of the Act.
Regardless of the sections of the Act concerned, the key issue in all these claims is whether the work had causative significance in producing the injury or disease. Section 6(3) establishes a presumption of employment causation for those situations that fall within the two columns of Schedule B. In other cases, the Board must make an individual determination in accordance with the available evidence. The question under consideration in this decision is the guidelines which should be followed in making these determinations under sections 5(1) and 6(1).
In August, 1985, a study by the Board's Medical Department proposed guidelines for the adjudication of these types of claims. These proposals included the suggestion that claims for tendinitis and tenosynovitis should, in the absence of a non-occupational cause, be accepted where there was frequent, repetitive, and forceful movement of the forearm or wrist.
A review of the relevant medical literature was carried out in January, 1987. From this review, the Board concluded that a majority of the scientific reports surveyed were of limited value because of unclear or inconsistent definitions of the various conditions and job requirements. Some studies were also of poor epidemiological design. Even if these factors could be corrected, there would still be significant problems in relating the condition to occupation because of other factors such as underlying arthritic or rheumatic disorders, hormonal influences, and the fact that any upper limb abnormality is likely to be more noticeable in a job which requires frequent use of the limb. Though there were limitations in these studies for the purpose of determining the causes of the conditions, it did appear that there was in general a causal relationship between tenosynovitis or tendinitis and repetitive use of the tendon, particularly if it was unaccustomed or involved strain or force. There was evidence to support a relationship between epicondylitis and carpal tunnel syndrome and repetitive motion, but it was much less convincing then for tendon or tendon sheath conditions.
The Commissioners consider that the effect of this literature review is to confirm the previous conclusion of the Board's medical department that tendinitis and tenosynovitis can be related to work not only when there has previously been some unaccustomed repetitive work activity but when the worker's accustomed work activity has resulted in force being applied to the area in question. However, the complaint has been made to the Board by workers' representatives that claims which fall within the latter category are not being accepted by the Board's Claims Adjudication staff. In order to address this complaint and remove all doubt as to the policy of the Board, the Commissioners have decided to issue this decision.
The Commissioners do not feel that there is at this time sufficient basis to warrant a change to Schedule B with respect to tendinitis and tenosynovitis that the repetitive activity be "unaccustomed". They would only reaffirm the Board's existing policy that it is the work activity in question that has to be "unaccustomed", not the job itself. Some jobs will from time to time require new or unaccustomed movements even if the job title and its essential functions remain unchanged.
Assuming that the case is one where the second column of Schedule B does not apply and the claim is being considered under Section 6(1), the mere occurrence of frequent, repetitive work activity followed by complaints in the arm is not sufficient for the acceptance of a claim for compensation. The nature of the work activity must be such that it would have subjected to stress the particular tissues that were damaged.
In situations where the repetitive work activity is one that was capable of stressing the damaged tissues for which claim is being made and there is an absence of factors suggesting a non-occupational cause for the worker's condition, a probability arises that the condition was caused by occupational activity if
a) tendinitis or tenosynovitis is diagnosed in the hand or wrist of a person who is occupationally performing frequent, repetitive, forceful, movements of the wrist or hand (Schedule B applies if the work activity is repetitive and unaccustomed); or
b) carpal tunnel syndrome is diagnosed in a person who is occupationally performing frequent, repetitive, forceful and unaccustomed, movements of the wrist; (vibration may also be a causal factor) or
c) epicondylitis is diagnosed in the elbow of a person who is occupationally performing frequent, repetitive, forceful, and unaccustomed movements of the wrist; or
d) bursitis or tendinitis is diagnosed in the shoulder of a person who is occupationally performing frequent or prolonged use of the arm at or above the horizontal plane with forceful, frequent movements of the shoulder or prolonged holding of a load at the horizontal (Schedule B applies if there is excessive friction, rubbing or pressure on the bursa).
As indicated above, there may be situations where the nature of the work activity is such as would ordinarily raise a probability of work causation, but there exist other factors which suggest a contrary conclusion. For example, both arms may be affected simultaneously even though the work activity in question only affected one arm, the worker may have an underlying condition which is known to produce the condition for which the claim is made, for example, hyperthyroidism or diabetes with respect to carpal tunnel syndrome, or there may be evidence of activities outside of work that could have caused the conditions. The decision in such a case can only be a judgment one on the particular circumstances reached by weighing the factors for and against an employment relationship.
In illustration of this, reference is made to carpal tunnel syndrome.
A. Factors indicative of an extrinsic occupational cause for carpal tunnel syndrome are:
- There has been a recent change of work activity in the affected hand, particularly if the wrist is held in excessive extension or flexion.
There were no non-work activities that might have caused the problems.
- The onset of the condition was relatively rapid, i.e. days or weeks.
- There has been improvement with rest.
- Only one hand is affected.
- The claimant is a younger person (intrinsic causes are much rarer in younger people).
B. Factors that would suggest a non-occupational or intrinsic cause are:
- There has been no change in work activity preceding the onset of symptoms or no work activity involving excessive extension or flexion.
There were non-work activities which might have caused the problem.
- There was a very slow onset of the condition-months or years.
- There has been no improvement with rest.
- Both hands are involved symmetrically and simultaneously.
- The individual is older.
There are other known intrinsic causes such as hyperthyroidism, diabetes.
The adjudication is straightforward in a claim where all the factors listed in A or B above exist, but the Board has to deal with many claims where there are some factors from A but also some factors from B. The decision in these cases can only be a judgment one on their particular circumstances reached by weighing the factors for and against an employment relationship.
Decisions of the Governors
Number: 19
Date: April 6,1992
Subject: Industrial Diseases Standing Committee Charter Workers' Compensation Board of British Columbia
This Charter states the mission, role, structure and responsibilities of the "Industrial Diseases Standing Committee" of the governors of the Workers' Compensation Board of British Columbia.
Mission Statement
As a standing committee of the governors, the mission of the Industrial Diseases Standing Committee is to review the industrial diseases policies of the Workers' Compensation Board and to make recommendations for change to the governors.
Role
The primary roles of the Committee are to determine whether a probable relationship exists between a disease and an industry or industrial process in British Columbia and, if so, the circumstances in which claims for compensation for that disease would be presumed valid under Section 6(4) and Schedule B of the Workers' Compensation Act, and to determine which diseases are to be designated or recognized as industrial diseases by regulation of general application.
It is not a responsibility of the Industrial Diseases Standing Committee make determinations with respect to individual claims. Such determinations shall remain an administrative function in accordance with Section 25.24 of the Rehabilitation Services and Claims Manual.
Structure
1. The governors shall appoint two worker representative governors, two employer representative governors, one public interest representative governor, and the chairman of the governors to serve as the Industrial Disease Standing Committee. The Committee shall be chaired by the chairman of the governors.
2. The terms of the members of the Committee shall be established on a staggered basis to maintain continuity while bringing fresh perspectives to the work of the Committee.
3. A quorum of the Industrial Diseases Standing Committee shall consist of one worker representative governor and one employer representative governor appointed under paragraph 1 and either the public interest governor appointed under paragraph 1 or the chairman of the governors, and no business shall be conducted by the Committee unless a quorum is present.
4. The Committee shall meet at least six(6) times in each calendar year, but in no case shall more that three(3) months elapse between meetings.
5. The Committee may require the assistance at Committee meetings or otherwise of any W.C.B. personnel considered necessary by the Committee. Subject to obtaining the necessary approvals for funding under paragraph 3 under RESPONSIBILITIES, the Committee may consult with stakeholders in the community, experts in the field of industrial diseases and any other persons whom the Committee considers would assist it in carrying out the Committee's responsibilities.
6. Minutes shall be kept of all meetings of the Committee and, after being signed and initialled by the chair of the Committee, shall be retained by the Office of the Governors.
7. The Committee may, with the approval of the governors, establish a secretariat or like administrative body of W.C.B. personnel to assist the Committee in fulfilling its responsibilities.
Responsibilities
1. The Committee shall, with the governors
a. Develop an operating procedure setting out the manner in which the Committee shall conduct its business, publish that operating procedure in the Workers' Compensation Reporter (the Reporter) and ensure that the operating procedure is otherwise available, upon request, to members of the public
b. Within two years of being constituted
(i) Completely review all entries currently with Schedule B and make recommendations to the Governors for updating Schedule B
(ii) Completely review the list of diseases designated or recognized by the W.C.B. as industrial diseases by regulation of general application and make recommendations to the governors for updating the list
c. Prioritize the other outstanding policy issues existing at the time the Committee is constituted and consider and make recommendations to the governors with respect to those issues
d. Consider new policy issues which may be brought to the Committee's attention by members of the Committee, the governors, W.C.B. personnel or stakeholders in the workers' compensation system and make recommendations to the governors
e. Conduct periodic reviews of Schedule B to ensure that the Schedule remains consistent with the intent of the Act and advances in medical knowledge, industries and industrial processes and make recommendations to the governors
f. Conduct periodic reviews of the list of diseases designated or recognized by the W.C.B. as industrial diseases by regulation of general application to ensure that the list remains consistent with the intent of the Act and advances in medical knowledge, industries and industrial processes and make recommendations to the governors
g. Undertake any other responsibilities which the Committee may be directed to undertake by resolution of the governors of the Workers' Compensation Board
2. The Committee shall keep the governors informed of its activities on a current basis by forwarding minutes of all meetings to each governor and as otherwise required by the governors.
3. To fulfil its mandate, the Committee may seek the approval of the governors for the funding of research projects, the constitution of expert panels, the holding of public inquiries, or the use of any other mechanism which the Committee considers would assist in obtaining information to assess the relationship between a particular industry or industrial process and a particular disease.
4. The chair of the Committee shall make an annual report of accomplishments and works in progress to the governors for each calendar year. Included in that report shall be a review of this Charter and recommendations for any changes perceived necessary.
5. In carrying out its mission and performing its responsibilities, the Committee shall, at all times, be subject to the Workers' Compensation Act, and the bylaws and resolutions of the governors of the Workers' Compensation Board.
This Charter of the Industrial Diseases Standing Committee of the governors of the Workers' Compensation Board has been adopted by the governors of the Workers' Compensation Board on April 6th, 1992.
Editors' note: The following governors are appointed as members of the Industrial Diseases Standing Committee from April 6, 1992 for either the fixed terms set out below or the expiration of their term of appointment as a governor, whichever is earlier:
| Worker Representative Governors | - Leif Hansen for a term of three years
- Stanley J.Shewaga for a term of two years |
| Employer Representative Governors | - Robert Hugh Buckley for a term of three years
- Murray A.Farmer for a term of two years |
| Public Interest Governor | - Bonnie Jean Hayes for a term of two years |
| Chairman of the Governors | - James E.Dorsey |
1 Workmen's Compensation Act, S.O. 1914, c. 25.
2 The Tribunal does not have the authority to interfere with the Board's ability to create policies and guidelines, but the Tribunal may declare that a Board policy or guideline is contrary to the Workers' Compensation Act and thus should not be followed.
3 Workers' Compensation Act, R.S.O. 1990., c. W.11, s. 93.
4 S.O. 1962-63, c. 145, s. 1 (1).
5 S.O. 1984, c. 58, s. 34 (1).
6 The most often quoted expression of this comes from an unreported decision of the Workers' Compensation Appeals Tribunal, Decision No. 809/88 (November 16, 1988), at pp. 5-6:
"It cannot be stressed too strongly that, in cases of disease, the Tribunal's balance of probabilities test is necessary in determining the outcome. In all but the most extraordinary cases, a panel will have to ask itself, based on the limited evidence available, 'is it more probable than not that this condition arose from the worker's work place, or it is more probable that it was caused by a non-occupational factor?' "
This has been approved of in the following cases: Decision No. 134/8912 (Oct. 16, 1991, Moore, Sutherland, Fox) at p. 4; Decision No. 407/911 (Nov. 25, 1991, Moore, Lebert, Meslin) at p. 8; Decision No. 875/90F (Jan. 21, 1992, Bradbury, Clarke, Robillard) at p. 7; Decision No. 665/89 (May 1, 1990, Bigras, Jewell, Fox), at p. 5; Decision No. 681/89 (March 13, 1990, Moore, Klym, Nipshagen) at p. 2; Decision No. 338/90 (Jan. 28, 1991, Bigras, Jago, Klym) at p. 12; Decision No. 1009/89 (Jan. 28, 1991, Bigras, Clarke, McCombie) at p. 8; Decision No. 683/91 (Feb. 3, 1992, McCombie, Chapman, Lebert) at p. 11.
7 Workers' Compensation Act, R.S.O. 1990, c.W.11, s. 4(4); Decision No. 1006/88 (June 1, 1992; Kenny, Lebert (Jewell dissenting)) at pp. 19-20; see also Terence Ison, Compensation for Industrial Disease under the Workers' Compensation Act of Ontario, Industrial Disease Standards Panel, Sept. 1989, at p. 7.
8 The majority decision in Decision No. 1006/88 (June 1, 1992; Kenny, Lebert (Jewell dissenting)), expressed this as follows (at p. 20):
"In our view, the evidence for and against causation with respect to the lung cancer is not 'approximately equal' in weight. Although the occupational exposure to silica and considerable dust levels was established, that evidence is only meaningful if there is an association between that exposure and the worker's lung cancer. This is clearly an association which is presently being studied, and future research may well provide clearer information about any possible association. But, we must decide this case on the basis of the evidence which is presently available to us.
"We therefore accept Dr. Muir's opinion that the worker's employment was probably not a significant cause of his lung cancer."
9 Decision No. 276/92 (May 29, 1992, Strachan, Preston, Rao) at pp. 13-14:
"In dealing with questions of causation, the Appeals Tribunal has generally applied a 'significant contributing factor' test -- i.e., when trying to decide whether employment 'caused' the disability, panels often ask: 'Was the employment a significant contributing factor to the disability?' This is essentially the 'material contribution' test posed in the case of Bonnington Castings v. Wardlaw, [1956] A.C. 613 (H.L.). ... Lord Reid's description of the 'material contribution' test appears at page 621 of that decision:
'The medical evidence was that pneumoconiosis is caused by a gradual accumulation in the lungs of minute particles of silica inhaled over a period of years. That means, I think, that the disease is caused by the whole of the noxious material inhaled and, if that material cones from two sources, it cannot be wholly attributed to material from one source or the other. I am in agreement with much of the Lord President's opinion in this case, but I cannot agree that the question is: which was the most probable source of the respondent's disease, the dust from the pneumatic hammers or the dust from the swing grinders? It appears to me that the source of his disease was the dust from both sources, and the real question is whether the dust from the swing grinders materially contributed to the disease. What is a material contribution must be a question of degree. A contribution which comes within the exception de minimus no curat lex [which means: "the law does not care for, or take notice of, very small or trifling matters"] is not material, but I think any contribution which does not fall within that exception must be material. I do not see how there can be something too large to come within the de minimus principle but yet too small to be material.' (emphasis added)."'
See also Decision No. 894/88 (Nov. 15, 1990, McGrath, Guillemette, Fox) at p. 9; Decision No. 699/91 (June 19, 1992, Moore, Ferrari, Apsey) at pp. 7-8; Decision No. 47/91 (July 7, 1992, Sandomirsky, Lebert, Ronson) at p. 7; and Decision No. 915 (1987), 7 W.C.A.T.R 1 (Ellis, Cooke, Heard, Apsey, Jago) at pp. 134-5.
10 Decision No. 1006/88 (June 1, 1992; Kenny, Lebert (Jewell dissenting)) at pp. 21-22.
11 Decision No. 894/88 (Nov. 15, 1990, McGrath, Guillemette, Fox) at p. 9:
"It is also accepted that the thin skull doctrine, i.e. that 'you must take your victim as you find him', applies in workers' compensation cases. Decision No. 915, 7 W.C.A.T.R. 1 at 136."
12 Decision No. 307/89 (Jan. 10, 1992, Newman, Preston, Lebert) at p. 19; see also Decision No. 331/89 (March 26, 1991, Strachan, Meslin, Drennan) at pp. 10-11.
13 Decision No. 196/87 (June 15, 1992, Bigras, Beattie, Meslin) at p. 6.
14 Decision No. 206/89 (April 17, 1991, Signoroni, Jewell, Lebert) at p. 20:
"A recent Supreme Court of Canada case (Snell v. Farrell (1990), 72 D.L.R. (4th) 289) discusses the correct approach to legal causation in a medical malpractice case. In this case, the Supreme Court of Canada draws a clear distinction between medical and legal causation in tort cases.
"Mr. Justice Sopinka drafted the reasons for judgment and the relevant comments state the following:
'I am of the opinion that the dissatisfaction with the traditional approach to causation stems to a large extent from its too rigid application by the courts in many cases. Causation need not be by scientific precision.
'... It is not therefore essential that the medical experts provide a firm opinion supporting the plaintiff's theory of causation. Medical experts ordinarily determine causation in terms of certainty where a lesser standard is demanded by the law.'
See also Decision No. 276/92 (May 29, 1992, Strachan, Preston, Rao) at p. 13; and Decision No. 307/89 (Jan. 10, 1992, Newman, Preston, Lebert) at pp. 12-13.
15 Decision No. 37/90 (March 15, 1990, Bigras, Higson, Nipshagen) at p. 14.
16 Decision No. 47/91 (July 7, 1992, Sandomirsky, Lebert, Ronson) at pp. 7-8:
"The difficulty in deciding cases like this where the scientific evidence is unclear and debatable was noted by Professor P. Weiler in his report to the Minister of Labour in 1983, Protecting the Worker from Disability: Challenges for the Eighties. He emphasized the importance of distinguishing between the scientific and compensation perspectives. Professor Weiler cautioned that in the compensation context 'the fact that the scientific evidence is unclear or debatable no more supports the negative than it does the positive conclusion on the issue'.
"The courts too have struggled with the question of causation in medical cases. The Supreme Court of Canada and Ontario Court of Appeal have recently released a number of decisions that highlight some of the difficulties in this area. For example in Laferriere v. Lawson (S.C.C. March 21, 1991) [now reported at 78 D.L.R (4th) 609], Gonthier J. commented on the use of scientific evidence in determining issues of legal causation:
Cases in which the evidence is scarce or seemingly inconclusive present the greatest difficulty. It is perhaps worthwhile to repeat that a judge will be influenced by expert scientific opinions which are expressed in terms of statistical opinions which are expressed in terms of statistical probabilities or test samplings, but he or she is not bound by such evidence. Scientific findings are not identical to legal findings. Recently, in Snell v. Farrell, [1990] 2 S.C.R. 311, this Court made clear that '[c]ausation need not be determined by scientific precision' and that '[i]t is not ... essential that the medical experts provide a firm opinion supporting the plaintiff's theory of causation' (p. 330). And the Quebec Court of Appeal have frequently stated that proof as to the causal link must be established on the balance of probabilities taking into account all the evidence which is before it, factual, statistical and that which the judge is entitled to presume."
See also Decision No. 276/92 (May 29, 1992, Strachan, Preston, Rao) at p. 14; Decision of the B.C. W.C.B. Appeal Division, No. 92-0473 (Feb. 21, 1992), vol. 8 Workers' Compensation Reporter 115 (Munro, Peain, Spooner) at pp. 119-20; and Decision No. 645/91 (Oct. 1, 1991, Onen, Meslin, Drennan) at pp. 8-9.
17 Workers' Compensation Act General Regulations, R.R.O. 1990, Reg. 1102, Schedule 3. Originally this schedule was appended to the Act, but it was later moved into the regulations.
18 Workers' Compensation Act R.S.O. 1990, c. W.11, s. 134 (9).
19 When adjudicating a case with the use of such a presumption, it is not appropriate to ask initially whether disease was caused by work. Initially, one looks only for whether the worker has the disease and was exposed to the associated process. If the worker has the disease and was exposed to the process, the presumption applies. The question of whether the disease was caused by work can only be raised when one is investigating whether the presumption is rebutted: Re Evans and Workers' Compensation Board (1982), 138 D.L.R. (3d) 346 (B.C. C.A.) at p. 351.
20 An exception to this occurs with the diseases silicosis, pneumoconiosis and stone worker's or grinder's phthisis, since subsections (12) and (16) of section 134 provide that benefits are not payable unless the worker was exposed to silica dust in Ontario workplaces for at least two years prior to his or her impairment.
21 Pursuant to s. 69 (1) of the Act, the Board has the jurisdiction to "examine into, hear and determine" whether workers are entitled to compensation benefits, and the common law requires the Board to fulfil this duty.
22 It must be possible to rebut a presumption. A presumption cannot be "absolute and conclusive": Re City of Winnipeg and Workers' Compensation Board of Manitoba (1987), 41 D.L.R. (4th) 175 (Man. Q.B.) at p. 181; reversed on other grounds at 48 D.L.R. (4th) 585 (Man. C.A.).
23 Decision No. 762/90 (April 4, 1991, Starkman, Apsey, Higson), at p. 6. This test may be affected, however, by a recent decision of a British Columbia court. Two decisions of the British Columbia courts have commented on the nature of the presumption associated with Schedule B of the British Columbia Workers' Compensation Act. As the statutory language associated with Schedule B is similar to the statutory language associated with Ontario's Schedule 3, these two B.C. decisions are potentially relevant to a proper interpretation of the Schedule 3 presumption in Ontario's statute. However, these decisions would be binding in Ontario only if a similar case arose in Ontario and an Ontario court decided to follow the reasoning in these B.C. decisions.
In the first of these decisions, the British Columbia Court of Appeal commented that the Schedule B presumption was a "strong presumption": Re Evans and Workers' Compensation Board (1982), 138 D.L.R. (3d) 346 (B.C. C.A.) at p. 351. But in the more recent of these two decisions, a lower court decided that the B.C. presumption need not be rebutted by "clear and convincing evidence" but may be rebutted by proof on a bare balance of probabilities: Vancouver (City) v. British Columbia (Workers' Compensation Board) (1993), [1994] 4 W.W.R. 518 (B.C. S.C.) at p. 531. An appeal of this decision is underway.
Regardless of how this appeal is resolved, the test for rebutting the presumption in Ontario remains a rigorous test. The reason for this is that in Ontario a worker should be compensated for an industrial disease if the workplace made a "significant contribution" to the onset of the worker's disease; furthermore, as indicated above, a significant contribution may be found if the workplace contributed as little as 25% to the onset of the disease (see note 10, above). Thus, to rebut the presumption, one must show that the workplace was not a significant contributing factor to the onset of the disease, and this means that the workplace must have contributed less than 25% to the onset of the disease. One way to express this is to say that the presumption is rebutted if it is proven, on a balance of probabilities, that the workplace contributed less than 25% to the onset of the disease.
24 Workers' Compensation Act Regulations, Regulation 951, R.R.O. 1980, as amended by O. Reg. 276/92.
25 Workers' Compensation Act, R.S.O. 1990, c. W.11, s. 134 (10).
1 R.S.O. 1980, c. 539, s.86a, as enacted by S.O. 1984, c. 58, s.32 and continued b s.80 of R.S.O. 1990, chap. W.11. References in this paper to the Workers' Compensation Act (the Act) will be to the 1990 RSO, unless otherwise indicated.
2 The Act, s.95 and, in particular, ss.95(11), (12) and (13).
3 See Weiler, Reshaping Workers' Compensation for Ontario (1980), at p. 110ff.
4 The Act, s. 91(2). The Statutory Powers Procedure Act, RS.O. 1990, c. S.22, s. 17 applies to most Ontario adjudicative tribunals. It requires that written reasons for a decision need only be provided "if requested by a party".
5 The Hallmarks of Good Quality Adjudicative Decisions were first adopted by the Tribunal as part of its Mission Statement and first published in its Third Report (1987-1988).
6 The Act, s. 93 (1). This provision is identical to s.86n of the pre-1989 legislation.
7 See section 94 (1). Section 94 (2) provides the one exception for appeals from WCB Appeal Board decisions. Leave must be obtained on the grounds that there is substantial new evidence which was previously unavailable or good reason to doubt the correctness of the decision.
8 See, for example, Decision No. 859/89 (1990), 16 WCATR 159 and Decision No. 47/91 (July 17, 1992).
9 Decision No. 257/89 (1990), 14 WCATR 87 at pp.92 and 104-6. And see "Compensation for Gold Miners with Lung Cancer, Policy Statement and Guidelines", Board Minute No. 3, January 8, 1988, p. 5216.
10 See, for example, Decision No. 885/88 (1989), 11 WCATR 163.
11 Decision No. 850 (1988), 8 WCATR 73 at pp. 87-88. This decision interpreted the definition of "industrial disease" in the pre-1985 Act; the same approach is taken in cases decided under the current wording.
12 See Decision No. 559/87 (1985), 9 WCATR 103 at p. 146.
13 Decision No. 915 (1987), 7 WCATR 1 at pp. 134-135, citing McGhee v. National Coal Board [1972] 3 All E.R. 1008.
14 Clover, Clayton & Co. Ltd. v. Hughes (1910), 79 LJKB 470 at 473 per Lord Loreburn, LC, cited with approval by Lord Buckmaster for the House of Lords in Partridge Jones & John Paton, Ltd. v. James (No. 2) (1933), 102 LJKB 760; 26 BWCC 277 at pp. 284-85; and by Bridges, CJ for the New Brunswick Court of Appeal in Dunham v. Workmen's Compensation Board (1967), 67 DLR (2d) 726 at pp. 728-29:
"In each case the arbitrator ought to consider whether in substance, so far as he can judge on such a matter, the accident came from the disease alone, so that whatever the man had been doing it would probably have come all the same, or whether the employment contributed to it. In other words did he die from the disease alone or from the disease and the employment taken together, looking at it broadly? Looking at it broadly, I say, and free from over-nice conjectures, was it the disease that did it, or did the work he was doing help in any material degree?"
And see Decision No. 572 (1987), 5 WCATR 83 at p. 87, citing Clover, Clayton & Co.
15 The Act, s. 73 (1), which is made applicable to the Tribunal by s. 92.
16 The Act, ss.86 (3), 87, 92 (adopting s. 74).
17 Note that a different standard of review is applied to discretionary Board policy decisions. In reviewing a discretionary policy, the Tribunal will ask whether the policy is inconsistent with the Act's requirements. See, for example, Decision No. 1264/87 (1988), 9 WCATR 210.
18 The Act, ss. 81 (1), 83 and 84.
WCAT Members' Code of Professional Conduct (April 1993).
20 Decision No. 645/93 (1993), 28 WCATR.
21 Snell v. Farrell, [1990] 2 S.C.R. 311 at pp. 328--332; Laferriere v. Lawson, [1991] 1 S.C.R. 541, at pp. 606-609.
22 See, for example, Decision No. 915 (1987), 7 WCATR 1 at p. 80; Decision No. 47/91, supra; Decision No. 134/89 (1993), 26 WCATR 32; Decision No. 375/92 (1993), 28 WCATR.
23 See Snell at pp. 330-331, where Sopinka, J. states; "Medical experts ordinary determine causation in terms of certainly whereas a lesser standard is required by the law."
24 One of the Tribunal's Medical Counsellors has written an interesting comparison of the medical and legal approach. See T.P. Morley, M.D., F.RC.S.C., "Legal and Medical Attitudes--Aspects of Causation" (1989), 4 WCAT Compensation Appeals Forum, p. 8.
25 See Decision No. 421/87 (1988), 8 WCATR 133.
26 Decision No. 1170/87 (May 2, 1990) at pp. 12-13.
27 This definition of epidemiology was accepted by the Court in Rothwell v. Raes 66 OR (2d) 449, aff'd (1988) 66 O.R. (2d) 449, additional reasons given (1989), 69 O.R. (2d)62 aff'd (1990) 2 O.R. (3d) 332 leave to appeal to SCC refused, (1991), 2 O.R. ii (note). And see Decision No. 257/89, supra, which used a similar definition at p. 93: "epidemiology is the discipline ... concerned with the patterns of events affecting the health of human populations and the factors influencing these patterns ... Epidemiologic studies may demonstrate a statistical association between a disease and an exposure or risk factor." And see Decision No. 859/89, supra.
28 Decision No. 257/89, supra, cited with approval in Decision No. 859/89, supra, at p. 12 and Decision No. 773/88 (1991), 19 WCATR 39, at p. 12.
29 This tendency in U.S. litigation was noted in Decision No. 257/89, supra.
30 Decision No. 257/89, supra, at p.105.
31 See, for example, Gold, "Causation in Toxic Torts: Burdens of Proof, Standards of Persuasion and Statistical Evidence" (1986), 96 Yale L.J. 376.
32 Evans, Causation and Disease - A Chronological Journey (1993) at pp. 194, 201, 203. And see Chapter 11 which discusses the need to investigate "the clinical illness promotion factor" - what makes some individuals more susceptible than others.
33 Snell v. Farrell, [1990].2 S. C.R. 311.
34 Laferriere v. Lawson, [1991] 1 S.C.R. 541.
35 [1991] 1. S.C.R. 451 per Gonthier, J. at pp. 606 - 607:
It is perhaps worthwhile to repeat that a judge will be influenced by expert scientific opinions which are expressed in terms of statistical probabilities or test samplings, but he or she is not bound by such evidence. Scientific findings are not identical to legal findings. Recently, in Snell v. Farrell, [1990] 2 S.C.R. 311, this Court made clear that "[c]ausation need not be determined by scientific precision" and that "[i]t is not ... essential that the medical experts provide a firm opinion supporting the plaintiff's theory of causation" (p. 330). Both this Court and the Quebec Court of Appeal have frequently stated that proof as to the causal link must be established on the balance of probabilities taking into account all the evidence which is before it, factual, statistical and that which the judge is entitled to presume. (See, e.g. Shawinigan Engineering Company v. Naud, [1929] S.C.R. 341, at pp. 343-45; Morin v. Blais, [1977] 1 S.C.R. 570, at p. 580; Laurentide Motels Ltd. v. Beauport (City), [1989] C.A. 275, at p. 278; Dodds v. Schierz, [1986] R.J.Q. 2623 (C.A.), at pp. 2635-36.)
If one takes, for example, a case in which a doctor neglects to employ a recommended procedure which is said to have a fifty percent chance of complete cure, a judge would not necessarily be bound by expert opinion which declined to conclude that application of the procedure to the patient would have avoided the patient's present worsened condition. The judge might well be justified in finding that the procedure in question would probably have benefited the patient, if other factors particular to that plaintiff support that conclusion. The judge's duty is to assess the damage suffered by a particular patient, not to remain paralysed by statistical abstraction.
If one moves then to a procedure which is recommended despite a mere twenty-five percent chance of success according to expert evidence, it is still not a foregone conclusion that the doctor's fault in not using this procedure must be said to have had no causal role in the patient's death or sickness. If the experts are examined properly, a judge might well find that he or she is justified in concluding that the omission of that procedure did not cause the death or sickness, but that it caused other lesser but clearly negative results (e.g. slightly shorter life, greater pain). The doctor's fault could then be judged causal to the extent of the aggravation of what was otherwise an inevitably terminal or morbid condition.
36 Decision No. 257/89, supra.
37 McGhee v. National Coal Board, [1972] 3 All E.R. 1008 (H.L.).
38 Wilsher v. Essex Area Health Authority, [1988] 1 All E.R. 871 (H.L.) per Lord Bridge at pp. 877-879.
39 Snell, per Sopinka, J. pp. 328:
"Causation need not be determined by scientific precision. It is, as stated by Lord Salmon in Alphacell Ltd. v. Woodward, [1972] 2 All E.R. 475 (H.L.), at p. 490, '... essentially a practical question of fact which can best be answered by ordinary common sense rather than abstract metaphysical theory'." And see p. 330:
"The legal or ultimate burden remains with the plaintiff, but in the absence of evidence to the contrary adduced by the defendant, an inference of causation may be drawn, although positive or scientific proof of causation has not been adduced
If some evidence to the contrary is adduced by the defendant, the trial judge is entitled to take account of Lord Mansfield's famous precept. This is, I believe, what Lord Bridge had in mind in Wilsher [[1988] 2 WLR 557] when he referred to a robust and pragmatic approach to the ... facts.' (p. 569).
It is not, therefore, essential that the medical experts provide a firm opinion supporting the plaintiff's theory of causation. Medical experts ordinarily determine causation in terms of certainties whereas a lesser standard is demanded by the law."
40 And see Decision No. 206/89 and Decision No. 832/91.
41 Decision No. 47/91, supra, at p.8.
42 The Act also contains a presumption in s.4(3) which applies when accidents are determined to arise out of or in the course of employment. While this presumption is important in many cases, it does not apply to accidents in the nature of "disablements". See Decision No. 268 (February 20, 1987).
43 Decision No. 328/89 (1989), 11 WCATR 321 at p. 324.
44 Decision No. 425/88 (October 11, 1988).
45 Decision No. 328/89, supra.
46 Decision No. 257/89, supra, at p. 105.
47 Decision No. 425/88, supra, at pp. 6-7.
48 See D. Bruce, M.D., F.R.C.S.(C.) Otolaryngology, "of Medical Evidence" (1992) which was presented at a Tribunal Training Day held in January, 1992.
49 The Act, s. 87.
50 Decision No. 909/90 (1991), 20 WCATR 168.
51 Decision No. 46 (1986), 3 WCATR 33.
52 Decision No. 641/90R. (September 1, 1992) and Decision No. 71/90 (March 20, 1991).
53 Decision No. 71/90, supra, at pp. 6-7.
54 See Laferriere v. Lawson, supra, at p. 606, cited in Decision No. 47/91 at p. 8.
55 Decision No. 859/89, supra, at p. 175.
56 Weiler, Protecting the Worker from Disability: Challenges for the Eighties (1983). See, in particular, p. 39-40, where Professor Weiler states:
"However, the fact that the scientific evidence is unclear or debatable no more supports the negative than it does the positive conclusion on this issue. In this setting the WCB must frankly recognize that the scientific material leaves the issue unsettled, and that an informed but pragmatic judgement must be made about which way the available evidence seems to point." And see Weiler, Reshaping Workers' Compensation, supra,
57 Snell v. Farrell, per Sopinka, J. at p. 328.
58 Daubert et al. v. Merrell Dow Pharmaceuticals Inc., 61 LW 4805 (1993, USSC) per Blackmun, J. for the majority at p. 4810.
59 Daubert, supra. The majority decision set out a number of factors to consider in determining whether a theory or technique constitutes scientific knowledge for the purpose of admissibility, including whether the theory had been tested, subject to peer review and publication, and so on.
60 Sopinka, The Law of Evidence, (1992), p.
61 See, for example, Mackintosh v. Wright (1991), 9 O.R. (3d) 285 (Ont. Ct. Gen. Div.).
62 R. v. Mohan (unreported) (S.C.C., May 5, 1994).
63 The Act, s. 74 (b) which is made applicable to the Tribunal by s. 92.
64 Decision No. 464LR (July 12, 1989).
65 Decision No. 859/89, supra, at pp. 176-177.
66 Decision No. 134/89 (1993), 26 WCATR 32. And see the earlier proceedings in Decision No. 134/891 (May 5, 1989), Decision No. 134/8912 (October 16, 1991) and Decision No. 134/89I2R (June 10, 1992).
67 Decision No. 375/92, supra.
68 WCB, Operational Policy Manual, Document #04-04-16.
69 I.D.S.P., Second Report to the Worker's Compensation Board (April 1990).
70 Decision No. 375/92, supra, p. 11.
71 Decision No. 559/87, supra.
72 Decision No. 559/87, supra, at p. 149.
73 Ibid.
74 Decision No. 373/91, (December 14, 1992).
1 I thank all of the members and employees of the Industrial Disease Standards Panel for their review of drafts of this paper and provision of helpful comments. In particular, I thank Niki Carlan, Chair of the Panel, for her careful assistance.
2 Workers' Compensation Act, R.S.O. 1990, c. W.11, s. 95.
3 Workers' Compensation Act, R.S.O. 1990, c. W.11, subsections 95 (12), (13), (14) and (15).
4 The Board, subject to the approval of the Lieutenant Governor in Council, has authority to make regulations concerning industrial disease (see s. 63 (1) and (2) and s. 65 (3) (b) of the Act). These regulations may assign diseases and associated processes to Schedules 3 or 4 of the Act (see subsection 134 (17) of the Act). As well, the Board has the jurisdiction to create guidelines and policies that may be used by the Board's staff when they are determining whether to grant compensation to workers claiming to be affixed with a work-induced industrial disease.
5 Workers' Compensation Act, R.S.O. 1990, c. W.11, s. 1. Prior to 1949, "industrial disease" was defined as any disease listed in Schedule 3 or named in a regulation.
6 Weiler's recommendations included the following:
"1.5 On request or on its own initiative, the Panel should undertake investigation of possible industrial diseases, decide whether a probable connection exists between the disease and an industrial process in Ontario, and then formulate the conditions under which the disease claim is presumed to be valid."
Paul C. Weiler, Protecting the Worker from Disability: Challenges for the Eighties (A report submitted to Russell H. Ramsay, Minister of Labour) (Toronto: Ontario Government Bookstore, April 1983), at p. 138.
7 In Protecting the Worker from Disability: Challenges for the Eighties (A report submitted to Russell H. Ramsay, Minister of Labour) (Toronto: Ontario Government Bookstore, April 1983), Paul Weiler wrote at p. 45,
"The ultimate product of this procedure would be a document which would identify a particular disease as characteristic of an industrial process in Ontario. If such a causal connection were found in principle, the document would spell out specific criteria which should produce a strong presumption in favour of compensation."
8 See Paul C. Weiler, Protecting the Worker from Disability: Challenges for the Eighties (A report submitted to Russell H. Ramsay, Minister of Labour) (Toronto: Ontario Government Bookstore, April 1983), at p. 33,
"We should be under no illusion, though, that an industrial disease will ever be anything but a conundrum as long as we try to fit it within a program which requires a judgment about the cause of the disease."
9 Re Nanaimo Community Hotel Ltd., [1994] 4 D.L.R. 638 (B.C.S.C.) at 639; affirmed [1945] 3 D.L.R. 225 (B.C.C.A.) at p. 250.
10 The Honourable Mr. Ramsay, Minister of Labour, speaking to the Committee of the Whole of the Legislative Assembly of Ontario said:
"I believe there are very few persons who would seriously contest the need for improving our efforts in locating and identifying elements that appear to be causally associated with industrial disease and for developing standards to deal in the fairest manner possible with the compensation claims to which they give rise."
Ontario, Legislative Assembly, Committee of the Whole, Official Reports of Debates (Hansard) (6 Nov. 1984) at p. 3891.
11 A similar point was discussed by the Workers' Compensation Appeals Tribunal when it noted that the Workers' Compensation Act states that compensation will be paid if a disability "results from" a workplace injury. The panel in that case concluded that "the concept of resulting from seems to contemplate a broader-based connectedness than does the concept caused by": Decision No. 915 (1987), 7 W.C.A.T.R. 1 (Ellis, Cook, Heard, Apsey, Jago) at p. 134.
12 There are additional reasons why the Panel must be careful when it uses statistics. To create statistics, first one must formulate an hypothesis that there is an association between two characteristics of the individuals in the population to be studied. (In this case, the population to be studied is a cohort of workers.) The exact opposite of this hypothesis is also generated, and this contradictory hypothesis is called the "null hypothesis." The null hypothesis is stated in a negative form, such as "there is no association between these two characteristics of this cohort of workers." A "sample" of the cohort of workers is then chosen and investigated. The data generated is examined to determine whether the new hypothesis or the null hypothesis is supported by the data.
But this method does not exclude the possibility of error. It is possible, however, to generate a mathematical prediction on the likelihood of error; this is called the "margin of error". Consequently, when performing a study on a "sample" of the cohort, a decision must be made about the amount of risk of error that will be tolerated. Often a "margin of error" standard of 5% is chosen (which is to say that if the study were repeated 100 times, 5 of the studies would be compatible with the null hypothesis). This "margin of error" affects the hypothesis in the following manner: if the data analyzed are consistent with the new hypothesis and the "margin of error" for that study is calculated at less than 5%, then the new hypothesis is accepted as supported by the data; if, however, the "margin of error" is calculated at greater than 5%, then the new hypothesis is rejected and the null hypothesis is accepted as consistent with the data.
One can challenge the appropriateness of a "margin of error" at 5%. Why not use a 1% standard, or a 25% standard? Most statisticians use the conventional 5% standard. If a 1% standard were used, this would increase the likelihood of a mistaken conclusion that there is no association between the disease and work. If a 25% standard were used instead of the 5% standard, this would increase the likelihood of a mistaken conclusion that there is an association between the disease and work. A standard of 5% or 1% may be appropriate when conducting scientific research, since the scientific enterprise is primarily concerned with discovering truth. (For further discussion of this point, see Michael Oakes, Statistical Inference, Epidemiology Resources Inc.: 1990, at p. 9.) But these rigorous standards may be inappropriate in a workers' compensation system. In workers' compensation matters, a 5% standard will usually result in a bias in favour of creating rules that restrict the payment of compensation to workers. In a social welfare system such as workers' compensation, this may be an inappropriate bias. (The Workers' Compensation Act is a remedial statute, and should be given a large and liberal interpretation: Interpretation Act, R.S.O. 1990, c. I.11, s. 10; Kerr v. Metropolitan Department of Social Services (1991), 4 O.R. (3d) 430 (Ont. Div. Ct.) at pp. 440 and 445; Abrahams v. Canada (Attorney General), [1983] 1 S.C.R. 2, 142 D.L.R. (3d) 1, at p. 10 S.cr., pp. 7-8 D.L.R; and Re Workers' Compensation Appeal Bd. and Penny (1980), 112 D.L.R. (3d) 95 (N.S. C.A.) at pp. 97-98.) A scientific enterprise may have standards that are not the same as the standards that should be used when making decisions on public health issues. (For further discussion of this point, see Stephen Lanes, "The Logic of Causal Inference in Medicine", in Causal Inference, Epidemiology Resources Inc.: 1988, at p. 70; and Sander Greenland, "Probability Versus Popper: An Elaboration of the insufficiency of Current Popperian Approaches for Epidemiologic Analysis", in Causal Inference, Epidemiology Resources Inc.: 1988, at p. 96.) When dealing with public health and social welfare there may be a need to take action despite a lack of scientific certainty. (For further discussion of this point, see Sir A. Bradford Hill, The Environment and Disease: Association or Causation" (1965), 58 Proceedings of the Royal Society of Medicine 295, at p. 300; and Stephan Lanes, "Error and Uncertainty in causal inference", in Causal Inference, Epidemiology Resources Inc.: 1988, at p. 186.) The workers' compensation system is primarily concerned with questions that ultimately must be tested on the basis of legal standards, and is concerned with medical and scientific questions only to the extent that they assist in answering the legal questions about entitlement to workers' compensation benefits. (For further discussion of this, see Terence Ison, Compensation for Industrial Disease under the Workers' Compensation Act of Ontario, (Toronto: Industrial Disease Standards Panel, Sept. 1989) at p. 26.)
13 Sir A. Bradford Hill, "The Environment and Disease: Association or Causation" (1965), 58 Proceedings of the Royal Society of Medicine 295, at p. 299.
14 Decision No. 915 (1987), 7 W.C.A.T.R. 1, discusses this at p. 137:
"As a general rule, principles of law developed by the Courts in personal-injury civil-litigation must be applied with caution to questions arising under Workers' Compensation legislation. A Workers' Compensation claim is not a claim for negligence. Entitlement arises whether or not the employer is at fault and defences which would be available were an employer being sued for negligence have been removed as obstacles to a worker's claim under the Workers' Compensation Act. While many of the same questions arise in the civil litigation context as in the Workers' Compensation context, in answering those questions is it important to remember that in the latter context the answers are to be found in the interpretation of the legislation. ...
"With respect, however, to the question of compensation entitlement for the consequences of an industrial injury, the Courts' approach to liability for consequences of negligence must be seen as persuasive authority. As previously discussed, it is apparent from the language of the Workers' Compensation Act that the Legislature must have intended to provide workers with at least the breadth of coverage for disabling consequences of injuries that is provided by civil litigation personal-injury law for consequences of negligent acts. ..."
15 Snell v. Farrell (1990), 72 D.L.R. (4th) 289 (S.C.C.) at p. 300, per Sopinka J.
16 Snell v. Farrell (1990), 72 D.L.R. (4th) 289 (S.C.C.) at p. 301, per Sopinka J.
17 A similar point is made by Steve Gold in "Causation in Toxic Torts: Burdens of Proof, Standards of Persuasion, and Statistical Evidence" (1986), 96 Yale L.J. 376. Gold argues that occasionally in toxic tort litigation two components of the legal tests in these cases -- the "burden of proof" and "standard of proofs" -- have been collapsed into one test. Instead of proving on a balance of probabilities that the toxic substance caused the plaintiff's injuries, these two aspects of the test have been collapsed into the single test of proving that there is at least a 50% probability that the toxic substance caused the injury. He argues, however, that this collapsing of the tests is a mistake. The proper legal test in a toxic tort lawsuit must be one that distinguishes between the facts that must be proven and the standard of proof to which it must be proven. One reason for separating out these two aspects of this test is that it permits the "what is to be proven" part of the test to be satisfied by non-statistical evidence such as that discussed by Sir Bradford Hill.
18 Rothwell v. Raes (1988), 66 O.R. (2d) 449, additional reasons at (1989), 69 O.R. (2d) 62 (H.C.J.), at p. 466 (66 O.R.); aff'd at (1990), 2 O.R. (3d) 332; 76 D.L.R. (4th) 280 (Ont.C.A.); leave to appeal refused (1991), 2 O.R. (3d) xii (S.C.C.).
19 Workers' Compensation Act Regulations, Regulation 951, R.R.O. 1980, as amended by O. Reg. 276/92.
20 Subsection 134 (10) of the Act provides:
134. ...
(10) If the worker at or before the date of the disablement was employed in any process mentioned in the second column of Schedule 4 and the disease contracted is the disease in the first column of the Schedule set out opposite to the description of the process, the disease shall be conclusively deemed to have been due to the nature of that employment.
21 Paul C. Weiler, Protecting the Worker from Disability: Challenges for the Eighties (A report submitted to Russell H. Ramsay, Minister of Labour) (Toronto: Ontario Government Bookstore, April 1983), at p. 38:
"When the wcb formulates a standard which, realistically, should provide automatic compensation to any worker who satisfies it, it is responsible for sifting through the relevant literature to find the point at which it becomes more probable than not than any one cancer will be due to workplace exposure. In principle, at least, that point is reached when the excess risk is double the normal background risk."
Weiler, in a footnote, suggests that the reason for this is because of the statute's provision that the benefit of any doubt should go to the worker.
22 Ontario, Report of the Royal Commission on Matters of Health and Safety Arising from the Use of Asbestos in Ontario (Toronto: Queen's Printer for Ontario, 1984), volume 1, at p. 99.
23 R.R.O. 1990, Reg. 1102, as amended by O.Reg. 900/93, s. 2.
24 Workers' Compensation Board, Board of Directors' Minute #18 (a) through (g), June 25, 1993, Page 5676, at p. 3 of the "Policy Proposal and Recommendations."
25 Workers' Compensation Board, Board of Directors' Minute #18 (a) through (g), June 25, 1993, Page 5676, at. pp. 2-3 of the paper "Nasal Cancer in the Nickel Producing Industry."
26 International Agency for Research on Cancer (I.A.R.C.) monograph on the evaluation of carcinogenic risks of chemicals to humans, Lyon, France: suppl. 7 (1987), at pp. 265-66.
27 International Agency for Research on Cancer (I.A.R.C.) monograph on the evaluation of carcinogenic risks of chemicals to humans, Lyon, France: suppl. 7 (1987), at pp. 264-269
28 International Agency for Research on Cancer (I.A.R.C.) monograph on the evaluation of carcinogenic risks of chemicals to humans, Lyon, France: suppl. 7 (1987), at p. 139.
29 Workers' Compensation Act General Regulations, R.R.O. 1990, Reg. 1102, Schedule 3.
30 Section 134 (9) of the Workers' Compensation Act provides:
134. ...
(9) If the worker at or before the date of the disablement was employed in any process mentioned in the second column of Schedule 3 and the disease contracted is the disease in the First column of the Schedule set out opposite to the description of the process, the disease shall be deemed to have been due to the nature of that employment unless the contrary is proved.
31 Ontario, Industrial Disease Standards Panel, Report to the Workers' Compensation Board on Lung Cancer in the Hardrock Mining Industry, I.D.S.P. Report No. 12 (Toronto: I.D.S.P., March 1994), at p. 82.
32 Ontario, Industrial Disease Standards Panel, Report to the Workers' Compensation Board on Lung Cancer in the Hardrock Mining Industry, I.D.S.P. Report No. 12 (Toronto: I.D.S.P., March 1994), at p. 83.
33 Ontario, Industrial Disease Standards Panel, Report to the Workers' Compensation Board on Lung Cancer in the Hardrock Mining Industry, I.D.S.P. Report No. 12 (Toronto: I.D.S.P., March 1994), at pp. 82-3.
34 Ontario, Industrial Disease Standards Panel, Report to the Workers' Compensation Board on Lung Cancer in the Hardrock Mining Industry, I.D.S.P. Report No. 12 (Toronto: I.D.S.P., March 1994), at p. 83.
35 R.R.O. 1990, Reg. 1102, as amended by O.Reg. 900/93, s. 1.
36 Workers' Compensation Board, Board of Directors' Minute #18 (a) through (g), June 25, 1993, Page 5676, at p. 3 of the "Policy Proposal and Recommendations."
37 Workers' Compensation Board, Board of Directors' Minute #18 (a) through (g), June 25, 1993, Page 5676, at p. 8 of the paper "Nasal Cancer in the Nickel Producing Industry."
38 International Agency for Research on Cancer (I.A.R.C.) monograph on the evaluation of carcinogenic risks of chemicals to humans, Lyon, France: suppl. 7 (1987), at pp. 265-66.
39 International Agency for Research on Cancer (I.A.R.C.) monograph on the evaluation of carcinogenic risks of chemicals to humans, Lyon, France: suppl. 7 (1987), at pp. 264-269
40 International Agency for Research on Cancer (I.A.R.C.) monograph on the evaluation of carcinogenic risks of chemicals to humans, Lyon, France: suppl. 7 (1987), at p. 139.
41 Ontario, Industrial Disease Standards Panel, Interim Report to the Workers' Compensation Board on Scleroderma, Report No. 8 (Toronto: I.D.S.P., May 1992), at p. 6.
42 Ontario, Industrial Disease Standards Panel, Report to the Workers' Compensation Board on Respiratory Complications among Workers Receiving Compensation for Non-malignant Respiratory Disease, I.D.S.P. Report No. 11 (Toronto: I.D.S.P., March 1993), at p. 9.
43 Ontario, Industrial Disease Standards Panel, Report to the Workers' Compensation Board on Respiratory Complications among Workers Receiving Compensation for Non-malignant Respiratory Disease, I.D.S.P. Report No. 11 (Toronto: I.D.S.P., March 1993), at p. 10.
44 Report to the Workers' Compensation Board on Cor Pulmonale, IDSP Report no. 10, July 1992.
45 Report to the Workers' Compensation Board on Cardiovascular Disease and Cancer Among Firefighters, IDSP Report no. 13, September 1994.
46 Report to the Workers' Compensation Board on the CGE Lamp Plant Issue, IDSP Report no. 5, November 1988.
47 Ontario, Industrial Disease Standards Panel, Report to the Workers' Compensation Board on Cor Pulmonale, I.D.S.P. Report No. 10 (Toronto: I.D.S.P., July 1992), at p. 7.
48 Ontario, Industrial Disease Standards Panel, Interim Report to the Workers' Compensation Board on Aluminum, I.D.S.P. Report No. 9 (Toronto: I.D.S.P., May 1992), at p. 13.
1 Webster's Third New International Dictionary of the English Language (1976), S.V. "disease"
2 Peter S. Barth et-al, Workers' Compensation and Work-Related Illnesses and Diseases, 1980, MIT Press, p. 2
3 Workmens Compensation Act, 1987, 60 & 61 Vict. c. 37
4 Workmen's Compensation Act, 1906, 6 Edw. 7, c. 58
5 British Parliamentary Debates - Workmen's Compensation 1900-1906 {5 June 1905}, p. 804
6 Brintons, Limited v Turvey [1905] A.C. 230 at p. 233
7 Steel v Cammell, Laird & Co. (1905), 2 K.B. 232; 74 L.J.K.B. 610
8 British Parliamentary Debates - Workmen's Compensation 1900-1906 {5 June 1905}, p. 807
9 Brintons, Limited v Turvey [1905] A.C. 230 at p. 237
10 British Parliamentary Debates - Workmen's Compensation 1900-1906 {5 December 1906}, p. 983
11 Ibid., p. 1003
12 Ibid., p. 1007
13 Factory and Workshops Act, 1901, 1 Edw.7, c. 22, s. 8(1)(i)
14 Industrial Diseases: A Review of the Schedule and the Question of Individual Proof, Oct. 1981 (Report by the Industrial Injuries Advisory Council), p. 11
15 Ibid., p. 11
16 Social Security (Industrial Injuries) (Prescribed Diseases) Regulations, 1985 (No. 967)
17 Industrial Diseases: A Review of the Schedule and the Question of Individual Proof, Oct. 1981, p. 10
18 Workers Compensation Act, R.S.B.C. 1979, c. 437, Section 6(3)
19 Workers Compensation Act, R.S.B.C. 1979, c. 437, Section 1 "industrial disease"
20 Workers Compensation Act, R.S.B.C. 1979, c. 437, Section 6(1)
21 5 WCR 78
22 5 WCR 78, at p. 79
23 Rehabilitation Services and Claims Manual, Section #25.24
24 Ibid., Section #25.42
25 Ibid., Section #25.22
26 Commission of Inquiry - Workers' Compensation Act - Report of the Commission, 1966, p. 231
27 Ibid., p. 229
28 Ibid., p. 231
29 Paul C. Weiler, Protecting the Worker from Disability: Challenges for the Eighties, a report submitted to the Minister of Labour (Ontario), April, 1983, p. 36
30 Ibid., p. 33
31 Commission of Inquiry - Workers' Compensation Act - Report of the Commission, 1966, p. 228
32 Ibid., p. 232
33 British Parliamentary Debates - Workmen's Compensation - 1900-1906 {5 December 1906}, p. 985, per Mr. Herbert Samuel: Viscount (1937) Herbert Louis Samuel (1870-1963), Liberal politician, administrator and philosopher. See E.T. Williams and C.S. Nicholls, The Dictionary of National Biography, 1961-1970 Oxford University Press, 1981, pp. 918-922; The Rt. Hon. Viscount Samuel, Grooves of Change: A Book of Memoirs, 1946
34 Workmen's Compensation Act, 1906, 6 Edw. 7, c. 58
35 The Honourable Chief Justice Gordon McG. Sloan was the Commissioner in both instances.
36 Report of the Commissioner Relating to the Workmen's Compensation Act and Board, 1952, p. 35 per Chief Justice Sloan
37 Commission of Inquiry - Workers' Compensation Act - Report of the Commission, 1966, p. 232
38 Ibid., p. 231
39 Workmen's, 1968, S.B.C. 1968, c. 59, Section 7(5)a amending Workmen's Compensation Act, R.S.B.C. 1960, c. 413, Section 8(3)a
40 WCA, Section 6(4)(a)
41 The Vancouver Sun, Saturday, June 28, 1980, p. G17
42 5 WCR 78, at p. 80
43 The Vancouver Sun, Saturday, June 28, 1980, p. G17
44 Re Larry Evans v Workers' Compensation Board, (1982) 38 BCLR 86; (1982) 138 D.L.R. (3d) 346. Leave to Appeal to S.C.C. denied 15 Nov. 1982, 40 BCLR xxxi
45 See "Current Trends, Occupational Disease Surveillance: Carpal Tunnel Syndrome", Morbidity and Mortality Weekly Report, July 21, 1989, Vol. 38, No. 28
46 Janice M. Hight and James E. Dorsey and, "The New' Workers Compensation Board" (1991) 49 the Advocate 739
47 7 WCR 57
48 7 WCR 111; 8 WCB 91; 8 WCR 95; 8 WCR 115
49 S.B.C. 1989, c. 42
50 "Report and Recommendations to the Minister of Labour and Consumer Services by the Advisory Committee on the Structures of the Workers' Compensation Board of British Columbia", (October 1988) 8 WCR 231
51 James E. Dorsey and Heather Greene, Governing the B.C. Workers' Compensation Board, (August 1992) 6 C.J.A.L.P. 271
52 Ibid., p. 277
53 Ibid., p. 279
Workers Compensation Act, R.S.B.C. 1979, c. 437
Workplace Act, S.B.C. 1985, c. 34
Criminal Injury Compensation Act, R.S.B.C. 1979, c. 83
54 Bylaw No.2, Statement Roles and Responsibilities of the Voting Governors of the Workers' Compensation Board, 7 WCR 151
55 Id
56 Bylaw No. 3, Board of Governors Procedural Bylaw, 7 WCR 161
57 The appointment of these Governors to the IDSC shall, from April 6, 1992, be the following fixed terms or to the expiration of their appointment as a Governor, whichever is earlier:
| Lief Hansen | - | 3 years |
| Stanley Shewaga | - | 2 years |
| Robert Buckley | - | 3 years |
| Murray Farmer | - | 2 years |
| Dr. Bonnie Hayes | - | 2 years |
| James E. Dorsey | - | April 30, 1995 |
58 IDSC Charter, Section 1(a) of "Responsibilities". The full Charter is published in 8 WCR 135.
59 Section 12.2 of Bylaw No. 1 of the IDSC, 8 WCR 613
60 Section 12.13 of Bylaw No. 1
61 Section 12.12 of Bylaw No. 1
62 Section 11 of Bylaw No. 1
63 Id
64 Dennis L. Campbell, B. Com (74), LLb (77)
65 Including various worker and employer groups, Workers' and Employers' Advisers, the MLA's, the Ombudsman and others.
66 Workplace Hazardous Materials Information System, B.C. Regulation 299/88 (pursuant to Section 71(1) of the Workers' Compensation Act) and B.C. Regulations 258/88 (pursuant to Section 4(a)(d) of the Workplace Act).
67 Some person or legal entity that is neither a "worker" or "employer" under the provisions of the Workers Compensation Act. More often these claims involve motor vehicle accidents or assaults.
68 Pursuant to Section 3(7) of the Workers Compensation Act
69 Eg., ski patrol workers; mountain rescue workers.
70 Eg., Volunteer firefighters; auxiliary police constables.
71 Where there has been no traumatic or other incident or event thought to have caused the stress-related condition.
72 H. Allan Hunt, Peter S. Booth and Michael J. Leahy, Workers' Compensation in British Columbia An Administrative Inventory at a Time of Transition, W.E. Upjohn Institute for Employment Research, 1991, p. 149.