Jul 252020
 

Demers report on occupational cancer requires immediate action to review denied cancer claims, says Ontario Federation of Labour

July 23, 2020

Workers and family members affected by occupational cancers are not surprised by the Demers report findings that well over 90% of occupational cancers are unrecognized and uncompensated by the WSIB every year. Only a fraction result in WSIB claims, and more than one-half of those claims are denied, very often based on technicalities that are not supported by legal principles or medical science.  The Demers report also showed that Ontario is recognizing far less occupational cancer than a number of European countries such as Germany.

“This is an urgent situation.  It has devastating consequences for the affected workers and their families, many of whom end up on social assistance.  It also imposes very significant costs on the taxpayer which should properly be paid by employers through the WSIB. The WSIB must take action immediately,” said Ontario Federation of Labour President Patty Coates.

By Labour Day, WSIB must implement policy recommendations regarding the adjudication of cancer claims involving exposures to multiple carcinogens and begin a review of all previously denied occupational cancer claims. The provincial government must also add to the schedules under the Workplace Safety and Insurance Act all of the carcinogens identified by the International Agency for Research on Cancer (IARC) as carcinogenic to humans. In the longer term, the government must move beyond the scope of Dr. Demers’ mandate to restore an independent Occupational Disease Panel and require the WSIB to apply standards set by the Panel when adjudicating disease claims. It must also fully fund the Occupational Health Clinics for Ontario Workers to provide timely investigations of occupational disease clusters at the request of workers and surviving family members.

“Failure to recognize occupational diseases not only harms those workers making claims, it harms future prevention efforts,” said Coates.

The Demers report was first promised by the outgoing Liberal government in the spring of 2018, following years of activism by workers and family members affected by the extensive confirmed carcinogenic exposures at the GE Peterborough facility.  The current PC government followed through on that promise only in January 2019, after renewed activism by former Kitchener area rubber workers and their families highlighted that the WSIB remains completely out of step with advances in scientific research.

In the meantime, including the last six months while the report sat on a shelf at the Ministry of Labour, hundreds of workers have received WSIB denial letters for new and reconsidered occupational cancer claims that include the promise of another review after the release of the Demers report.

“It is now clear from the report itself that hundreds, even thousands, more claims have been unjustly denied in the past and require urgent review,” said Coates. “The WSIB must act immediately on the recommendation to create new policies addressing exposure to multiple carcinogens in the workplace and the interaction between occupational and non-occupational exposures.

The WSIB has long pretended that “lifestyle” issues like smoking, alcohol and obesity somehow magically counteract workplace carcinogens, despite scientific findings that multiple carcinogens nearly always act together, sometimes synergistically. The same goes for a “family history” of cancer, which with very few exceptions must be considered nothing more than one factor in a complex picture, interacting with exposure to carcinogens. The WSIB must stop looking for easy “either-or” technicalities and start dealing with the complex realities of “both-and”.

By Labour Day, the WSIB can and must put Interim policies addressing multiple exposures and the interaction of occupational and non-occupational causes into the hands of its adjudicators, and suspend all existing policies on individual diseases with inappropriate treatments of these issues and other arbitrary considerations such as specified latency periods between exposures and the onset of disease.

And finally, the provincial government must also add all of the carcinogens identified by the IARC as carcinogenic to humans to the schedules under the Workplace Safety and Insurance Act (WSIA).  These are known as IARC Group 1 carcinogens.  Many of these substances have been known to be carcinogenic for literally decades and yet never added to the WSIB’s schedules.  This action does not require a legislative amendment.  The provincial cabinet can do this simply by amending the regulations to the WSIA.

The Board must review all previously denied cancer claims in light of these new policies and overturn decisions that failed to properly address multiple carcinogens in the workplace, or to recognize the interaction rather than competition between occupational and non-occupational factors or which have been invalidated by new research.

This process cannot wait for the rebuilding of scientific and medical capacity at the WSIB and Ministry of Labour recommended by the report. Clear errors can and must be corrected without further delay, and the identification of outstanding issues raised by these reports of occupational cancer from Ontario workers must direct the future use of that renewed capacity. Failure to recognize occupational diseases not only harms those workers making claims, it harms future prevention efforts.

In the longer term, regulation- and policy-making must change in ways beyond anything contemplated by Dr. Demers’ mandate from the Ministry. The WSIB’s terrible performance results from the tangle of conflicting statutory duties and political interests created by its roles as legislator, adjudicator, benefit and service provider, revenue collector and investment fund manager. Ontario must restore a fully funded, independent Occupational Disease Panel with worker, employer and scientific representation, focussed exclusively on establishing fair criteria for evaluating compensation claims. This Panel must have clear, exclusive jurisdiction to establish those criteria, with the WSIB bound to implement them. The Board can no longer be allowed to make up its own rules as it goes along.

The same goes for the investigation of cancer clusters. Neither the Board nor the Ministry can be trusted to handle what are effectively complaints about the failure to prevent occupational cancers in a particular workplace or industry or to fairly compensate affected workers who have come forward on an individual basis. Historically, scientific and medical resources of both Board and Ministry were often wasted, as in Peterborough, in efforts to convince workers and families that they should not believe their eyes, that cancer clusters did not exist, were not as big as they seemed, or when looked at case-by-case by the WSIB were not caused by exposures in the workplace. In other cases, such as silicosis or cancer in Elliot Lake uranium miners or asbestos workers in Sarnia, information about disease clusters confirmed and documented by Ministry scientists was more likely to be shared at international scientific conferences or in journal articles than with the affected workers, their doctors and unions.

In these instances and many more, those directly affected have turned to the Occupational Health Clinics for Ontario Workers (OHCOW) for independent occupational hygiene and medical assessments of workplace exposures and their relationship to cancers and other diseases. Workers deserve independent assessments of suspected clusters and their own individual health conditions as a matter of basic health care, provided as a professional service directly to them and not exclusively as a sidelight of the commercial, legal and political projects of employers, politicians and bureaucrats.

OHCOW is the only actor in the health and safety system that has the expertise and credibility with workers to pursue investigations of occupational disease clusters, but is not fully funded to respond quickly and comprehensively. That needs to change and change fast.

The Ontario Federation of Labour represents 54 unions and one million workers in Ontario. For information, visit www.OFL.ca and follow @OFLabour on Facebook and Twitter.