REPORT TO THE WORKERS' COMPENSATION BOARD ON IDSP REVISIONS TO SCHEDULE 3: PHASE ONE
November, 1994

Industrial Disease Standards Panel (Occupational Disease Panel)
IDSP Report No. 14
Toronto, Ontario

Industrial Disease Standards Panel

In 1985 the Ontario legislature established the Industrial Disease Standards Panel (IDSP) to investigate and identify diseases related to work. The Panel is independent of both the Ministry of Labour and the Workers' Compensation Board. At the end of each fiscal year the WCB reimburses the Ministry for the Panel's expenditures.

The Panel's authority flows from section 95 of the Workers' Compensation Act and its functions are set out as follows:

95(8)

Decisions of the Panel are made by its members who represent labour, management, scientific, medical and community interests. Once the Panel makes a finding, the WCB is required to publish the Panel's report in the Ontario Gazette and solicit comments from interested parties. After considering the submissions the WCB Board of Directors decide if the Panel's recommendations are to be implemented, amended or rejected.

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 input from parties of interest.

Additional copies of this publication are available by writing:

Industrial Disease Standards Panel
69 Yonge Street, Suite 1004
Toronto, Ontario M5E 1K3
(416) 327-4156

Panel Membership

TABLE OF CONTENTS

Letter of transmittal

Report to the WCB on IDSP Revisions to Schedule 3: Phase One

The Issue and How it Arose

Investigations by the Panel

Revisions by the Panel
Phase One
Phase Two
a) Progressive Injuries
b) Diseases Recognized by WCB Guidelines
c) Diseases Scheduled in Other Canadian Jurisdictions
Phase Three

The Panel's Findings

I. The Current Schedule

II. Interjurisdictional Use of Schedules

III. Form and Contents of Schedule 3

Summary

The Panel's Recommendations

Appendix 1 (Current)

Appendix 2 (Proposed)

Appendix 3 (Interjurisdictional Comparison)

REPORT TO THE WCB ON IDSP REVISIONS TO SCHEDULE 3: PHASE ONE

The Issue and How it Arose

Approximately two years ago in the course of inter-agency discussions, the Workers' Compensation Board (WCB) made an informal request to the Industrial Disease Standards Panel (IDSP) for a revision of Schedule 3 in Regulation 951 to The Workers' Compensation Act (the Act). The request arose from an apparent dissatisfaction with the Schedule's existing form and contents on the part of stakeholders and adjudicators who find the Schedule to be in need of revisions. Furthermore, all parties interested in the revision of Schedule 3 are agreed that the existing form and contents are out of date and that a viable Schedule needs constant updating The Panel examined the Board's request and agreed to revise the Schedule.

Schedule 3 has been part of Ontario workers' compensation law since its inception in 1914 and included only six diseases. Between 1914 and the present, Schedule 3 has been amended about 14 times. The amendment before last was in 1965, which simply changed the wording of the existing Tuberculosis entry made in 1951. The last amendment was in May 1994, which added nasal and sinus cancer in the nickel industry. In the interim, the WCB has been able to add to the list of compensable diseases by declaration without formal amendment of Reg.951. This was accomplished by the use of disease guidelines.

The Schedule's original function was to provide an exclusive list of compensable diseases; that is, it gave public notice of which diseases alone were compensable under the Act. The list lost its exclusivity when the definition of industrial disease was made more inclusive in 1984. Schedule 3, however, has not lost its notice function. Diseases listed in Schedule 3 were also given the benefit of an explicit presumption of cause; therefore, a listed disease could be presumed to be caused by a listed work process, unless the contrary were proved.

Investigations by the Panel

The IDSP undertook the revision of the current Schedule 3 (Appendix 1) pursuant to its mandate in s.95 of the Act. The project began with an examination of relevant sections of the Act, the legal definition of industrial disease, the presumptive clauses pertaining to Schedule 3, current adjudicative practice and Workers' Compensation Appeal Tribunal (WCAT) decisions concerning occupational disease claims.

After gaining a thorough understanding of the applicable law, the meaning and effect of the presumptive clauses and disease adjudication, the Panel then proceeded to an investigation on the use of disease schedules or their equivalent in other jurisdictions, with particular focus on Canada.

The Panel also produced a prototype called, Guides For The Adjudication Of Occupational Diseases. The prototype was needed to test the feasibility of a disease schedule. Adjudication by reference to a schedule alone is impracticable because decision makers need readily available information on diseases, conditions and work processes to guide them. In addition to the Guides, the Panel commissioned a literature review on occupational exposures and effects relating to a particular chemical (cadmium).

Revisions by the Panel

As investigations moved forward, the project of revising Schedule 3 became larger than first anticipated. The IDSP has concluded that revision should proceed in phases.

The compensation of occupational diseases⁽¹⁾ happens by virtue of section 1(1) of the Act, which contains the following:

In subparagraphs (a) to (c), a disease or medical condition⁽²⁾ is compensable if it meets the requirements set out in the whole definition.⁽³⁾

In (d) scheduled diseases are demonstrably industrial diseases because they meet the definition and therefore are either presumed or deemed to be caused by the employment.

The legislative intent in (d) is to expedite the process of adjudication in disease claims. To be compensable, a disease must meet the criteria set out in the Act. A schedule of diseases, therefore, gives public notice that diseases in Column 1 meet the legal criteria and are considered to be characteristic of the work processes specified in Column 2, unless the contrary is proved in a particular case.

Disease compensation is aided by the evidentiary presumptions set out in s.134(9)-(10) of the Act, which state:

If the prerequisites set out by these two subsections are met, then the law directs that claims for scheduled diseases are either presumed compensable until proved otherwise or deemed compensable.⁽⁴⁾ Adjudication by schedule proceeds on the basis that a probable connection between disease and work is demonstrable.

Both law and practice concerning occupational disease compensation is more or less uniform in Canada, the sole exception being Saskatchewan.⁽⁵⁾ A compensable disease is therefore any disease that can be shown to be work-related or that is already legally recognized as work-related. Schedules legally recognize certain diseases as compensable on an explicit presumption of their origin.

Phase One. The revisions to the Schedule identified in Phase One do not deviate from the existing law or propose any substantive changes to existing protection. In this Phase, the Panel will recommend changes to the format of Schedule 3 and editorial changes to the content. This Report therefore ends Phase One of the Schedule 3 project.

Phase Two will recommend additions or deletions to the Schedule. For example, diseases specific to a chemical agent listed under Poisoning can be added in the appropriate disease category: benzene induced leukaemia, after the appropriate investigation, could be added under, Cancers. Inclusion of agent specific diseases clarifies the law and enhances adjudication. Specification also strengthens the causal presumption.⁽⁶⁾

Other changes can be made in the following way:

a) Progressive Injuries

In Ontario, practice distinguishes between progressive injuries that are disablements and diseases that are progressive injuries. The WCB tracks the following Schedule 3 diseases as accidents (by definition an accident includes disablements):⁽⁷⁾

• Bursitis
• Infected Blisters
• Tenosynovitis
• Ulceration of the Corneal Surface
• Welder's Flash/Retinitis

All five can be called diseases to the extent of their chronic effects in certain circumstances. All five injuries have a common etiology: repeated exposure.

Should these five be included in the Schedule? Any of the five could be called an accident; however, Canadian practice has long treated these injuries as diseases.⁽⁸⁾ They are considered diseases because they manifest themselves over time.

Deleting any of these injuries from the Schedule would amount to a substantive change in the law. Such a change cannot be contemplated without detailed justification and consultation.

b) Diseases Recognized by WCB Guidelines

One way to update the Schedule is by inclusion of occupational diseases recognized by the WCB but not included in the schedules. Such diseases are legally compensable and can therefore be presumed occupational in origin. They are regulated by guidelines.⁽⁹⁾ The current guidelines identify occupational diseases (listed below) associated with particular exposures, occupations or work sites, as noted in parentheses:

• Lung cancer
  (arsenic, asbestos, nickel smelting and nickel production, Dofasco foundries,⁽¹⁰⁾ Deloro Smelting and Refining, INCO refineries, gold miners)
• Laryngeal cancer (asbestos, nickel)
• Nasal cancer (nickel production)⁽¹¹⁾
• Gastrointestinal cancer (asbestos)
• Poliomyelitis
• Fume [isocyanate] Toxicity
• Rabies
• Noise Induced Hearing Loss
• Tinnitus
• Vibration Induced White Finger Disease
• Chronic Obstructive Lung Disease (smelter workers)
• Emphysema (alpha 1 anti-trypsin deficiency)
• Scleroderma (silica).

The legal effect of guidelines is to identify compensable diseases without formal amendment of Schedule 3. Any disease so recognized can therefore be presumed to have a probable connection to work.

The Panel believes that guideline diseases vary from scheduled diseases only in their strength of association to work. If the probable connection is conclusive, then the disease should be in Schedule 4, and if it is strong, the disease should be in Schedule 3. If the probable connection is moderate, however, the disease should be regulated by guideline.

There is a difference between a probable and possible connection to work. Diseases not regulated by guidelines or by schedules are possibly work-related and therefore adjudicated case-by-case. A possible connection could eventually be recognized as a probable one.

Some of the guideline diseases listed above can be scheduled with less intensive study than needed for new diseases. Apart from the cancers, none of the diseases in the current guidelines appears controversial for occupational origin. Furthermore, a recommendation to schedule one of these diseases would be reinforced if it were already scheduled in other Canadian jurisdictions.

An examination of Appendix 3, which is an inter-jurisdictional comparison of scheduled diseases, may indicate which Ontario WCB guideline diseases should be considered for scheduling.

c) Diseases Scheduled in Other Canadian Jurisdictions

It could be reasonable to use other schedules in Canada as a reference for adding new entries to Schedule 3 because other jurisdictions reflect a common historical experience and similar responses to occupational disease compensation. For diseases not yet listed in Ontario, the fact of being scheduled elsewhere will at least signal the need to schedule, provided that the relevant causative processes are found here.

This Phase will investigate the guideline diseases and the diseases scheduled in other Canadian jurisdictions. New diseases will require longer study before a determination can be made on the probability of work-relatedness.

Phase Three will initiate a continual update of the Schedule. Both Phases Two and Three will involve IDSP development of accompanying guidelines and background materials for stakeholder and adjudicator reference.

THE PANEL'S FINDINGS

I. The Current Schedule

The IDSP confirms the WCB's finding that there is a probable connection between work and the diseases currently listed in Schedule 3, shown in Appendix 1.

II. Interjurisdictional Use of Schedules

Appendix 3 is a comparison (to 1992) of occupational disease compensation in jurisdictions using schedules or the equivalent. Use of schedules is almost universal for the compensation of occupational diseases. Canadian jurisdictions also accept claims for unlisted occupational diseases. Jurisdictions that accept claims only for listed diseases sometimes retain inclusive definitions for certain diseases.⁽¹²⁾

III. Form and Contents of Schedule 3

Appendix 2 contains the Panel's revision of the existing form and contents of Schedule 3 and proposes changes as they would appear in a WCB approved amendment of the Regulations to the Act.

The revised Schedule retains the two column format with changes to enhance the schedule's notice function. Entries are therefore grouped by natural affinity and appropriately titled. For example, "Respiratory Diseases", identifies the obvious.

For the time being, the Panel has decided to keep the current natural grouping, Poisoning and its Sequelae. Any disease induced by a poisoning can be presumed compensable if there is work exposure to the specified agent. Agent specific diseases could also be added to the Schedule under relevant headings in Phase Two.

The other schedule entries have been edited to clarify disease and process descriptions. For example, the WCB adjudicates claims for welder's flash (damage to the cornea) under the existing entry for Retinitis (damage to the retina). Given the true but different natures of these two conditions, however, claims for one cannot be taken as claims for the other. The proposed entry for these conditions preserves existing protection by synchronizing the law with practice. Editorial changes also make the language more relevant to practice (e.g., the proposed column entries for radiation diseases). Missing column entries were added for clarification, and processes included in the description of disease were shifted to the second column. In any case, none of these revisions has made substantive changes to the law.

Changes from the original are noted in italics.

Because Phase One involves only a revision of the form and content of the existing Schedule without additions or deletions, the Panel concludes that the WCB should proceed with the development of adjudicative Guides for the revised entries. The IDSP agenda and limited financial resources do not permit the Panel to undertake the development of such Guides at this time.

SUMMARY

The IDSP has determined that Schedule 3 should be updated and kept current on an ongoing basis. Because revision of the Schedule needs to be supplemented by the development of resource materials for interested parties, the project for revising the Schedule should proceed in phases. Phase One closes with the revision of the existing form and contents of Schedule 3 as set out in Appendix 2.

Phase Two will be the addition or deletion of entries in Schedule 3. Additions to the Schedule must have a demonstrably probable connection to an industry, trade, occupation or work process. Deletions can be made if a condition is not a disease but is compensable as an accident. In either case, the requirements or effect of the Act are met and maintained.

THE PANEL'S RECOMMENDATIONS

1.That the WCB approve the revised form and contents of the Schedule as set out in Appendix 2.

2. That the WCB prepare the Guides (e.g., background materials, fact sheets and rebuttal matrices) for adjudicating claims under the current Schedule 3 as revised.

APPENDIX 1 (Current)

R.R.O. 1980, Reg.951*

* Regulation 1102, R.R.O. 1990, has added entry #16, as of May 24, 1994

16. Primary Cancer of the nasal cavities or of paranasal sinuses

Concentrating, smelting or refining in the nickel producing industry

APPENDIX 2 (Proposed)

Regs.951/1102 rev.

APPENDIX 3: INTERJURISDICTIONAL COMPARISON