For this reason, since 2002, four Canadian provinces have added “firefighters’ presumptions” to their workers’ compensation laws, deeming certain types of cancers to be related to work as a firefighter unless the contrary is proven. On April 12, 2005, the government of British Columbia announced that it would become the fifth Canadian province to include a statutory firefighters’ presumption for certain cancers in its Workers’ Compensation Act. In addition, the province of Manitoba has enacted precedent-setting amendments to its workers’ compensation legislation, expanding its 2002 firefighters’ presumption to include heart attacks suffered by on-duty firefighters within 24 hours of an emergency response. In this issue, Lancaster House takes stock of the firefighters’ presumptions in workers’ compensation laws across Canada.

Manitoba introduces presumption for heart attacks suffered within 24 hours of blaze

The number one killer of on-duty firefighters is heart attacks, according to a 2002 study conducted by the United States Fire Administration, which found that 44 percent of the more than 1,000 U.S. firefighters who died on duty in the 1990s succumbed to fatal heart attacks, over double the roughly 20 percent who were killed by burns and smoke inhalation. On June 9, 2005, the Manitoba government amended its groundbreaking 2002 firefighters’ presumption to provide that “[i]f a worker who is a full-time firefighter or part-time firefighter suffers an injury to the heart within 24 hours after attendance at an emergency response, the injury must be presumed to be an accident arising out of and in the course of the employment, unless the contrary is proven.” In addition to adding primary-site colon and ureter cancer to the five cancers already included in the 2002 firefighters’ presumption (see below), the amended Workers’ Compensation Act now also states that lung cancer “must be presumed to be an occupational disease the dominant cause of which is the employment as a firefighter, unless the contrary is proven,” provided that the firefighter “has been a non-smoker immediately before the day of the accident for a minimum period of time prescribed by regulation.” Significantly, the new law extends the presumption to include a “casual, volunteer or part-time member of a municipal fire brigade.” Regulations are expected to determine the length of service a part-time, volunteer or casual firefighter will need to have accrued before being diagnosed with cancer in order to benefit from the presumption.

As well, the Manitoba Workers’ Compensation Amendment Act implements a series of improvements in workers’ compensation benefits and coverage, including removing the cap on insurable earnings (previously set at $58,260); eliminating the annual age reduction in permanent impairment awards and survivor benefits for workers over age 45; extending the length of time an older worker is eligible to receive wage loss benefits from 24 months to 48 months; increasing awards for permanent injuries; and imposing a requirement on certain employers to offer to re-employ injured workers.

Manitoba’s pioneering law provided blueprint for other provinces

The first jurisdiction to legislate the “firefighters’ presumption,” Manitoba amended its Workers’ Compensation Act in 2002, retroactive to January 1, 1992, to provide that a full-time firefighter’s primary site brain cancer, bladder cancer, kidney cancer, non-Hodgkins lymphoma or leukemia “must be presumed to be an occupational disease the dominant cause of which is the employment as a firefighter, unless the contrary is proven.” In order to qualify for the presumption, claimants must have worked as professional firefighters for a set number of years varying by type of cancer, ranging from a low of five years for primary leukemia to a maximum of ten years for kidney cancer and non-Hodgkins lymphoma, and have been “regularly exposed to the hazards of a fire scene … throughout that period.” (For a review of this legislation, see Lancaster’s Firefighters/Fire Services Employment Law News, May/June, 2002.)

Alberta followed suit in April 2003 with Bill 202, the Workers’ Compensation (Firefighters) Amendment Act, establishing a firefighters’ presumption retroactive to January 1, 1993 for colon and ureter cancer in addition to the five cancers included in the Manitoba presumption: brain, bladder, kidney, non-Hodgkins lymphoma and leukemia. Like the Manitoba presumption, the Alberta firefighters’ presumption kicks in only after a certain number of years of full-time employment varying by type of cancer, during which the claimant must have been “regularly exposed to the hazards of a fire scene.” (For a review of this legislation, see Lancaster’s Firefighters/ Fire Services Employment Law News, March/April, 2003.)

Saskatchewan grants full retroactivity, Nova Scotia includes volunteer firefighters

With the passage of Bill 18, An Act to amend the Workers’ Compensation Act, 1979 in May 2003, Saskatchewan bested both Alberta and Manitoba by making its firefighters’ presumption fully retroactive, entitling firefighters stricken with primary site brain cancer, bladder cancer, kidney cancer, non- Hodgkins lymphoma and leukemia to the benefit of the presumption regardless of when their claim arose, provided they were employed for a minimum number of years varying by type of cancer as full-time firefighters, and “regularly exposed to the hazards of a fire scene.”

Also in May 2003, Nova Scotia enacted Bill 1, the Firefighters’ Compensation Act, establishing a firefighters’ presumption in the Nova Scotia Workers’ Compensation Act for primary site colon cancer, brain cancer, bladder cancer, kidney cancer, non-Hodgkins lymphoma and leukemia retroactive to January 1, 1993, provided that the firefighter had completed a minimum number of years of employment and was “regularly exposed to the hazards of a fire scene” throughout that period. Notably, the Nova Scotia presumption applies to volunteer firefighters on the same terms as full-time professional firefighters. Under s.3(a) of the Nova Scotia Firefighters’ Compensation Regulations, volunteer firefighters are deemed to have the minimum number of years of employment required to qualify for the presumption if they “participated in at least 20% of all activities of the volunteer fire department each year, including fire calls and training, conducted during the minimum period.”

Presumptive policies adopted by Ontario and Quebec compensation boards

Ontario and Quebec are the only other provinces with rules respecting a firefighters’ presumption for the purposes of workers’ compensation. Although not legislation, the Ontario Workplace Safety and Insurance Board’s “ Operational Policy Guidelines for Brain and Lymphatic Cancers among Career, Urban Fire Fighters ,” enacted in 1999, provides that “full-time urban firefighter[s]” diagnosed with brain cancer or lymphoid leukemia are “entitled to compensation if the disease is found to be, on a balance of probabilit[ies], due to the nature of the worker’s employment as a full-time urban firefighter.” While there is no set qualifying period, the Guidelines state that “[t]he longer the worker’s employment as a full-time firefighter the more likely it is that the [cancer] is due to the nature of the worker’s employment,” and further provides that 20 years’ employment in “full-time firefighting involving on-call fire smoke exposure” provides “persuasive evidence” that a firefighter’s brain cancer is work related, or 30 years in the case of lymphoid leukemia. The policy applies retroactively to all claims diagnosed after 1947. Finally, the International Association of Firefighters reports in its publication, Presumptive Cancer Legislation for Professional Fire Fighters: An Act of Fairness, that the Quebec Commission de la santé et de la sécurité du travail (CSST) “has agreed to approve fire fighters’ bladder and kidney cancer compensation claims provided the firefighter has been on the job 20 years.”

New Brunswick reconsiders proposed law, while B.C. promises change in fall

This spring, the New Brunswick Standing Committee on Law Amendments recommended shelving Bill 5, An Act to Amend the Workers’ Compensation Act, which would have introduced a firefighters’ presumption for primary leukemia, non-Hodgkins lymphoma, and ureter, colon, brain, bladder, and kidney cancers. Tabled by Liberal Opposition Leader Shawn Graham in August 2003, Bill 5 also proposed extending loss of earnings benefits to unpaid volunteer firefighters, even if they were otherwise unemployed. After consulting with the Workplace Health, Safety, and Compensation Commission (WHSCC), the New Brunswick Association of Fire Chiefs, and the Atlantic Provinces Professional Fire Fighters’ Association, the government allowed Bill 5 to die on the order paper when the New Brunswick legislature prorogued on December 2, 2004. On April 26, 2005, the Standing Committee on Law Amendments advised the legislature not to revive Bill 5, stating that although the government “supports in principle the presumptive provision related to certain types of cancers for full-time firefighters,” Bill 5 “does not adequately accomplish its objectives, particularly those related to the loss of earnings provisions, and requires revision.”

On April 12, 2005, British Columbia Labour Minister Graham Bruce promised legislation this fall to give British Columbia firefighters presumptive compensation for primary brain, bladder, kidney, ureter and colon cancer, as well as primary non-Hodgkins lymphoma and primary leukemia. However, the promised law is intended to cover only full-time professional firefighters, and a number of B.C. municipalities with volunteer forces have called for revisions. According to an April 15, 2005 article in the Langley Advance, Labour Ministry Communications Director Graham Currie has promised that the government will look into how the change will affect firefighters who are not full-time employees.