WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2574/11

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2574/11 BEFORE: M. Crystal : Vice-Chair A. Lust : Member Representative of Employers D. Broadbent : Member Representative of Workers HEARING: January 17, 2012 at Ottawa Oral Post-hearing activity completed on October 23, 2013 DATE OF DECISION: February 12, 2014 NEUTRAL CITATION: 2014 ONWSIAT 298 DECISIONS UNDER APPEAL: WSIB ARO decisions dated April 30, 2010 and April 8, 2011 APPEARANCES: For the worker: For the employer: Interpreter: Mr. P. Atkinson, Professional Fire Fighters Association Mr. W. LeMay, Legal Counsel N/A Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 2574/11 REASONS (i) Introduction [1] This appeal was heard in Ottawa, on January 17, The employer appeals the decision of Appeals Resolution Officer (ARO) L. Diaz, dated April 30, That decision determined that: i) The worker had initial entitlement to benefits for colorectal cancer as related to his occupation as a fire fighter; and ii) The worker was entitled to loss of earnings (LOE) benefits for the period from April 11, 2008, until January 24, 2010, the date of his death. [2] The employer also appeals the decision of ARO Diaz, dated April 8, That decision determined that the worker s estate was entitled to survivors benefits based upon the earnings of a fire captain as of the date of accident established in relation to the worker s accident claim. [3] The employer was represented by Mr. William LeMay, legal counsel. The worker s estate was represented by Mr. Paul Atkinson, Professional Fire Fighters Association. The worker passed away on January 24, 2010, as a result of colorectal cancer. The late worker s widow testified at the appeal hearing. Submissions were provided by Mr. LeMay and by Mr. Atkinson. (ii) The issues under appeal [4] The issues to be determined in this appeal are: i) Whether the worker has initial entitlement to benefits for colorectal cancer as related to his occupation as a fire fighter; ii) iii) The quantum of the worker s entitlement to LOE benefits, if any; and The quantum of the estate s entitlement to survivors benefits. (iii) Findings of fact made in Decision No. 2574/11I2 [5] At the hearing of this appeal, the Panel determined that it wished to put certain questions to a Tribunal Medical Assessor before rendering its final decision in this appeal. With the assistance of the Tribunal's Medical Liaison Office (MLO), we determined that we wished to obtain an expert medical opinion from a Medical Assessor in relation to the worker's appeal. So that the Medical Assessor would have a factual basis upon which he could answer the questions posed, we made certain findings of fact concerning the worker's accident and medical history. Further details concerning the circumstances of the appeal are set out in Decision No. 2574/11I2, however, at the conclusion of the decision, the following summary of our findings of fact was provided: 1. The worker was employed as a full-time firefighter, commencing this employment on June 16, 1980 and retiring from the employment on June 30, The worker was a volunteer firefighter prior to this full-time employment.

3 Page: 2 Decision No. 2574/11 2. During the worker s period of full-time employment as a firefighter, he ultimately attained the rank of fire captain prior to his retirement. The worker took early retirement when it was offered by the employer to him in As a full-time firefighter he was regularly exposed to smoke and fumes that would be associated with the regular course of this type of employment. 3. The worker did not have a family history associated with colorectal or other cancer. 4. The worker was generally in good health prior to about February 2007, although at times he experienced some respiratory problems, which may have been bronchitis, which was treated with a puffer. 5. The worker typically consumed between four to six alcoholic beverages per week. 6. The worker had a 20 pack year smoking history. 7. The worker enjoyed a diet that included bran and other cereals for breakfast, and regularly included fish, vegetables and beans. The worker also consumed red meat, a few times per month. 8. Prior to becoming ill in early 2007, the worker had a moderately active lifestyle, performing household chores such as gardening, and recreational activities such as fishing, although, as a mature adult, he did not participate in sports. 9. For most of the worker s life he weighed 210 lb. and was 6 feet 2 inches tall. A report, dated June 16, 2008, indicated that by that time, subsequent to his diagnosis of colorectal cancer, his weight had reduced to about 80 kg (176 lb.). 10. The worker began to experience symptoms of alternating bouts of diarrhea and constipation, in or about early February He sought treatment for these symptoms in May 2007 at a clinic. Abdominal x-rays ordered in late May 2007 were negative. The worker did not have follow up treatment until his cancer diagnosis in April The worker observed blood in his stool in January The worker experienced acute abdominal symptoms upon returning home from a Caribbean vacation in April At that time, he was admitted to hospital and diagnosed with primary-site colorectal cancer. 13. The worker passed away on January 26, The worker s cause of death was related to his primary-site colorectal cancer. (iv) Medical opinion from the Tribunal Medical Assessor, Dr. Bruce M. McGoveran, specialist in occupational medicine [6] As noted above, in order to assist in addressing the issues in this appeal, the Panel sought the assistance of a Tribunal Medical Assessor. A medical report, dated July 16, 2013, was requested and obtained from Dr. Bruce M. McGoveran, specialist in occupational medicine, who was retained as the Tribunal Medical Assessor for this appeal. The report provided answers to the questions which the Panel posed in relation to the appeal, which were set out in correspondence, dated February 11, 2013, from the Tribunal to Dr. McGoveran. That correspondence set out the questions, as follows: 1) An opinion based on the findings of fact as noted in the Interim Decision, and a review of the case materials; 2) Succinct answers to several key questions:

4 Page: 3 Decision No. 2574/11 1. Based on your review of the Report to Minister Peters on the Treatment of Firefighter Cancer Claims by the Workplace Safety and Insurance Board and the medical literature on colorectal cancer cited therein, please comment on any relationship between cumulative exposure to various substances in the occupation of Firefighter and the worker s colon cancer. a. Does the scientific evidence in this report support any relationship between the cumulative workplace exposures, as described by the Panel in their findings of fact, and the worker s primary adenocarcinoma of the sigmoid colon? b. Is this medically likely? Please explain. c. The worker was past the age of 61 when he was diagnosed with colon cancer. Is this within the expected time for the condition to arise? Please explain. d. Are there any current research findings that tend to support or refute the medical literature on colorectal cancer cited in this report? Please support your answer with literature citations. 2. Please compare any elevation of occupational risk to that related to the worker s smoking history or other factors, as described by the Panel in their findings of fact. Please support your answer with any current relevant literature. 3. Can you provide any other medical or scientific information, which you feel would be helpful to the Panel and parties in this appeal? [7] Dr. McGoveran also provided a copy of his curriculum vitae (CV), which indicated that in addition to being certified as a specialist in occupational medicine, Dr. McGoveran has served as an occupational medicine consultant and clinician at several major hospitals, including St. Michael s Hospital and Sunnybrook Health Sciences Centre, has served as an Examiner for the Royal College of Physicians and Surgeons of Canada, formulating and administering examinations to candidates who wish to be certified by the College as specialists in the field of occupational medicine, and has lectured at the Department of Medicine, Faculty of Medicine, University of Toronto on topics related to community health. [8] Dr. McGoveran s report dated July 16, 2013, responded to the questions that were posed. Dr. McGoveran s report stated: [9] [format the report] I write in response to the Panel s questions as outlined in your letter of 11 Feb I have read the Panel s findings of fact in Interim Decision No. 2574/11I2, and the two Assessor Briefs. I will turn my attention directly to answering the Panel s questions, which I have paraphrased slightly for ease of presentation. Question One-A: Does the scientific evidence in the case materials support any relationship between cumulative workplace exposures, as described by the Panel in its findings of fact, and the worker s primary adenocarcinoma of the sigmoid colon? There is some evidence in the scientific literature contained in the Assessor Briefs of a relationship between working as a firefighter and risk of developing colorectal cancer (CRC). Since most studies consider cancers of the colon and rectum together, I will use the acronym CRC hereafter. The evidence comes predominantly in the form of elevated mortality ratios. I refer the Panel to the studies of Guidotti (1993), Baris (2001), Ma

5 Page: 4 Decision No. 2574/11 (2005), and to the Report of the Workers Compensation Board on Cardiovascular Disease and Cancer Among Firefighters (1994). This last reference is 82 pages in length. Pages discuss colon cancer. The summary of mortality and morbidity studies at the bottom of page 54 is of particular relevance to this question. Elevated mortality ratios indicate that more people died of CRC in these studies than did a comparable reference segment of the (unexposed) population at large. At the same time, although the mortality ratios themselves were elevated, their confidence intervals included unity. This means the observed elevations were not statistically significant, and as a result, we cannot conclude with great confidence that the elevated ratios reflect a true elevation in CRC risk from firefighting. The literature describing the risk of CRC from firefighting also has two important epidemiologic shortcomings. First, there is virtually no personal exposure data for the firefighters under study. Second, data on firefighters smoking histories is almost universally unavailable. The absence of personal exposure data is problematic because without it, we have no way of knowing the extent to which a particular firefighter came into contact with the workplace exposures thought to increase the risk of CRC. These include the thermal decomposition products of building materials combusting at high temperatures, polycyclic aromatic hydrocarbons, and asbestos. Diesel exhaust is also a suspect exposure. In no study contained in the Assessor Briefs is detailed personal exposure data available. The closest approximation to this data comes in Baris study, in which firefighters were stratified into groups based on the number of fire calls to which they responded (run number), and whether they worked as part of an engine or ladder company. This matrix was premised on the idea that the likelihood of exposure to the substances of interest increases with run activity, as well as the fact that engine company members were usually the ones to enter a burning building to fight the fire, whereas as ladder company members remained outside the building. Thus, one might infer that engine company firefighters have a greater likelihood of relevant exposure and therefore a greater risk of developing CRC assuming a relationship between firefighting and CRC exists. Baris reports mixed findings. On the one hand, firefighters from engine-only companies had a statistically significantly elevated risk of colon cancer compared to firefighters from ladder-only companies. There was, though, no consistent trend when firefighters were stratified by number of runs. In other words, CRC risk did not relate predictably to run number. Baris also reported a statistically significantly increased rate of colon cancer in the aggregate cohort (SMR: 1.51, 95-percent confidence interval: ). This is one of the few studies to report a statistically significantly elevated morality ratio. As was the case with the other studies contained in the Assessor Briefs, Baris does not consider the potential impact of smoking on rates of the various cancers studied. Indeed, the majority of the literature in the Assessor Briefs pertaining to firefighters and cancer risk either excludes mention of the issue of firefighters smoking histories altogether or acknowledges that the histories were unavailable and therefore not factored into a study s design. There is, however, mounting evidence of a relation between smoking and CRC. I refer the Panel to the citations I have appended to my report as Appendix A. They are representative of the literature I reviewed using the OVID interface to Medline at the University of Toronto. I further refer the Panel to the National Cancer Institute s (NCI) statement on smoking and the risk of CRC residing here: Section_942. The Panel will note the NCI supports a link between the two and cites an adjusted relative risk (current smokers versus never-smokers) of 1.18 (95-percent confidence interval: ) for developing CRC. It is worth noting in the context of the current case that those who have recently quit smoking retain an elevated risk of CRC for some time after quitting. So, while I am aware of the suggestion that [the worker] may have quit smoking in 2003, it is important to note his risk of developing CRC as a result of smoking remained elevated in the ensuing years. The literature suggests a former

6 Page: 5 Decision No. 2574/11 smoker s risk of CRC declines to the level of a never- smoker approximately twenty years after quitting. Clearly, in the context of [the worker s] claim, we have a problem, for while there is (limited) evidence of an association between work as a firefighter and elevated CRC risk, there is also evidence that smoking increases CRC risk. In addition the body of literature dealing with firefighters and CRC risk is epidemiologically problematic, for it derives from studies that reference no personal exposure data and which do not factor in the effect of smoking history on CRC risk. Having considered these competing factors at length, I find myself able to conclude only that the evidence at best offers limited support for a relationship between workplace exposures and CRC on the background of a smoking history approximating [the worker s]. Question One-B: Is this medically likely? I interpret this question to mean likely in the context of [the worker s] work as a firefighter. With this interpretation in mind, I think it medically possible that [the worker s] cancer relates to his work as a firefighter. Given the concerns with the relevant literature I discuss in my answer to Question One-A, though, I do not think it medically likely, though. Question One-C: The worker was past age 61 when diagnosed with colon cancer. Is this within the expected time for the condition to arise? The incidence of CRC increases with age and notably after approximately age 50. In this sense, the timing of [the worker s] diagnosis is unremarkable. Moreover, on the basis of the diagnosis latency since [the worker s] first exposure as a firefighter, and given the duration of his exposure as a firefighter, the timing of the CRC s diagnosis is consistent with a workplace etiology (relationship to workplace exposures), provided evidence of such a relationship exists in the literature. As I note in my answer to Question One-A, though, the link in the literature is tenuous. As well, quite aside from the workplace, the timing is certainly consistent with the smoking history noted in the Panel s findings of fact. Question One-D: Are there any current research findings that support or refute the medical literature on colorectal cancer cited in this report? I found no literature on the subject of firefighting and CRC risk that would make a noteworthy addition to the studies and commentaries already assembled in the Assessor Briefs. I do think those studies reporting associations, whether statistically significant or not, between firefighting and CRC need to be reconsidered in light of the link between smoking and CRC. As I see it, the articles I list in Appendix A are part of a body of literature presenting an explanation for [the worker] CRC that is approximately as plausible as that set out in the firefighter-crc literature. Question Two: Please compare any elevation of occupational risk to that related to the worker s smoking history or other factors as described by the Panel in its findings of fact. Please support your answer with current relevant literature, if available. I refer the Panel to the risk estimates, confidence intervals, and sources I mention in my answer to Question One-A, and to the references in Appendix A. I confirm there are no other non-occupational risk factors of import here. Question Three: Is there any other medical or scientific information that is likely to assist the Panel and parties to this appeal? As I see it, central to this case is the matter of how to evaluate the relative likelihood that [the worker] developed CRC as a result of his smoking history or as a result of his work

7 Page: 6 Decision No. 2574/11 as a firefighter. Studies comparing rates of colon cancer between groups of firefighters who do and do not smoke would be of great assistance in this matter. Unfortunately, these studies do not appear to exist. In their absence, I reiterate my earlier comment that [the worker s] smoking history offers an explanation for his developing CRC that is approximately as plausible as that set out in the firefighter-crc literature. This concludes my report. I would be pleased to clarify any of the above at the Panel s request. I also send my apologies to the panel and other parties to this matter for the extensive delay in my submitting this report. [10] As indicated in his report, Dr. McGoveran included the following information in Appendix A to his report: (v) Appendix A: References 1. Gong J., Hutter C., Baron.J, et al. A Pooled Analysis of Smoking and Colorectal Cancer: Timing of Exposure and Interactions with Environmental Factors. Cancer Epidemiol Biomarkers Prev 2012 ; 21: Hannan L.M., Jacobs E.J., Thun M.J.. The Association between Cigarette Smoking and Risk of Colorectal Cancer in a Large Prospective Cohort from the United States. Cancer Epidemiol Biomarkers Prev 2009; 18: Applicable law [11] The Board s Operational Policy Manual Document No , on the subject of Cancers in Full-Time Firefighters provides that the date of accident is the date of earliest evidence of documented medical attention. As noted in Decision No. 2574/11I2, the first evidence of documented medical attention in relation to the worker s colorectal cancer is a report from a clinic, dated May 28, This is the date of accident for the worker s accident claim. Accordingly, the worker s entitlement to benefits in this appeal is governed by the Workplace Safety and Insurance Act, ( the Act ) (vi) Analysis [12] An issue which has arisen in this appeal is whether the statutory presumption provided by Ontario Regulation 253/07 applies in the circumstances of this appeal. This issue was addressed in our interim decision for this appeal, Decision No. 2574/11I2. As we indicated at paragraph 27 of that decision: Ontario Regulation 253/07 provides that in cases where a firefighter is diagnosed with Primary-site colorectal cancer, the presumption set out in section 15.1(4) of the Act that the disease is presumed to be an occupational disease that occurs due to the nature of the worker s employment as a firefighter or fire investigator, unless the contrary is shown applies if two conditions have been met. For the presumption to apply, it must be demonstrated that the firefighter was diagnosed with the disease before he or she attained the age of 61 years and that the individual was employed as a full-time firefighter, part-time firefighter or fire investigator or served as a volunteer firefighter for a total of at least 10 years before being diagnosed. [13] In Decision No. 2574/11I2 we concluded that the presumption cited does not apply in the circumstances of this appeal. Our reasons for this conclusion are set out in detail from paragraph 27 to 39 of the decision, and will not be repeated in these reasons. Our reasons were based on the requirement, set out in section 126(1) of the Act, for the Appeals Tribunal to apply Board policy which is applicable with respect to the subject matter of the appeal. The issue of

8 Page: 7 Decision No. 2574/11 whether the presumption, referred to above, applies in the circumstances of this appeal has been disposed of, and will not be revisited in these reasons. [14] In Decision No. 2574/11I2 the Panel indicated that it agreed with the Board s statement that it would be unfair to [the injured worker] to deny this claim under the Bill 221 legislation just because the actual diagnosis was not made until some 11 months later in April Given our conclusion that the presumption does not apply in this case, we concluded that a fair approach to the appeal, would be to consider the appeal on the merits, and dispose of the appeal according to a balance of probabilities, which is the applicable evidentiary standard in the appeal, which applies in the ordinary course. It was on this basis that we retained Dr. McGoveran to provide us with additional medical information which would assist us in determining whether it was more probable than not that the worker s colorectal cancer was related to his employment duties as a firefighter. [15] In an occupational disease case, where the circumstances do not raise the question of whether a statutory presumption should apply, and where a Tribunal Medical Assessor is retained by the Panel, in addition to the worker s personal medical information on file, it is common for the Assessor to consider epidemiological information which is pertinent to the issue under appeal. This epidemiological information often includes published scientific/medical articles which may address the question of whether the worker s occupational exposures can, through the interpretation of epidemiological studies, be considered to be related to the condition or disease for which the injured worker is seeking entitlement. [16] In this case, we were aware that epidemiological information had been prepared or collected to assist the Legislature in its deliberations concerning whether to enact Ontario Regulation 253/07. We believed that this information should be provided to the Tribunal Assessor, to allow the Assessor to consider the information in responding to our questions, notwithstanding the fact that we have determined that, in a legal context, the presumption does not apply to the worker. We believed that this would allow the worker the benefit of the scientific/epidemiological information that was the basis for the Legislature s enactment of Ontario Regulation 253/07, while at the same time allowing the Panel, with the assistance of the Assessor, to consider the appeal on the basis of the ordinary evidentiary standard which applies in the appeal. [17] For these reasons, we asked Tribunal Counsel Office to obtain any epidemiological evidence from the Board that was used in recommending to the Legislature the statutory presumption that is included in Ontario Regulation 253/07, and in particular, epidemiological information related to the decision to require that, for the statutory presumption to apply, the date of diagnosis must precede the worker s 61 st birthday. TCO wrote to the Board and ultimately obtained a significant body of epidemiological information, which was included in the Assessor Brief that was provided to Dr. McGoveran. It is apparent from his report, that Dr. McGoveran considered this information, and took it into account in providing the Panel with his responses to our questions. [18] We have considered Dr. McGoveran s report and we interpret it to mean that it is not probable that the worker s colorectal cancer was related to his exposures as a firefighter. [19] We note that Dr. McGoveran indicated that the medical literature he considered on the issue of the risk of colorectal cancer from firefighting has two important epidemiological shortcomings. He noted that there is virtually no personal exposure data for the firefighters

9 Page: 8 Decision No. 2574/11 under study and secondly data on firefighters smoking histories is almost universally unavailable. Dr. McGoveran indicated that evidence was developing in support of a relationship between smoking and colorectal cancer, and he provided citations for studies which address this issue. Dr. McGovern stated that, in his view, the link in the literature between workplace exposures associated with firefighting and the development of colorectal cancer is tenuous. He concluded that it is medically possible that [the worker s] cancer relates to his work as a firefighter but that he did not think it medically likely. [20] We interpret the statement that Dr. McGoveran did not consider a relationship between the worker s occupational exposures as a firefighter and the development of his colorectal cancer not to be medically likely, to mean that the proposition that such a relationship exists has not been established on the evidence, according to the evidentiary standard of on a balance of probabilities. As we have indicated, this is the evidentiary standard that applies in the determination of this appeal. [21] We note that Dr. McGoveran stated in response to Question One-D and Question Three that the worker s smoking history offers an explanation for his developing CRC [colorectal cancer] that is approximately as plausible as that set out in the firefighter-crc literature. Noting that Dr. McGovern concluded that he considered a relationship between the worker s occupational exposures as a firefighter and the development of his colorectal cancer to be medically possible but not medically likely, since he considered the worker s smoking history as an explanation for the cancer to be approximately as plausible, as the worker s firefighting work exposures, we interpret the report to mean that neither the worker s smoking history nor his firefighting work exposures provide a medically likely explanation for his cancer. [22] This formulation leads the reader to the conclusion that there is no known causal factor associated with the worker s cancer which is medically likely. This, of course, is not unusual, in the sense that many, if not the majority, of cancer diagnoses cannot be explained by a particular factor or factors which provide a probable linkage to an external or environmental causative factor, notwithstanding that the presence of such explanations remains possible. The fact that Dr. McGoveran indicated that the worker s smoking history offers an explanation for his developing CRC [colorectal cancer] that is approximately as plausible as that set out in the firefighter-crc literature, does not cause us to conclude that it is probable that the worker s occupational exposures as a firefighter were causally related to his colorectal cancer. Such a conclusion would be inconsistent with Dr. McGoveran s explicit statement that a relationship between the worker s work as a firefighter and the development of his cancer is not medically likely. [23] We have considered the submissions provided by the estate s representative, and we are not persuaded by the submissions that it is probable that the worker s work exposures contributed significantly to the development of his cancer. [24] The submission points out that Dr. McGoveran referred to studies which indicated there were elevated mortality ratios from CRC in firefighters, as compared to the unexposed general population, and that this provided evidence from the scientific literature that relates firefighting to colorectal cancer increases for the firefighter. We agree that there is some evidence which supports this conclusion, however, we do not consider this evidence to be persuasive that it is probable that the worker s exposures contributed significantly to his cancer. Although this

10 Page: 9 Decision No. 2574/11 literature exists, Dr. McGoveran pointed out the epidemiological shortcomings with this evidence, which we have taken into account. In order for this Panel to award entitlement, it is not sufficient for us to identify some evidence which provides possible support for entitlement. Rather, in order to award entitlement we must conclude that it is probable that the exposures contributed significantly to the cancer. Considering Dr. McGoveran s report in full, for the reasons provided above, we are not able to reach this conclusion. [25] We note that on page 3 of the estate s submissions, the representative referred to a quotation from Dr. McGoveran s report, which stated that because observed elevations were not statistically significant, and as a result, we cannot conclude with great confidence that the elevated ratios reflect a true elevation in CRC risk from firefighting [emphasis added]. The representative goes on to suggest that by this, Dr. McGoveran implied that, because a linkage could not be established with great confidence, that a linkage between occupational exposures from work as a firefighter and colorectal cancer had been established with ordinary confidence. We are not able to attribute weight to this suggestion. Given that Dr. McGoveran indicated that a linkage was medically unlikely, we interpret Dr. McGoveran s report to mean that he did not have confidence that it is probable that such a linkage exists. [26] We have also considered the estate s submission, which was provided in several different variants, that the enactment of the statutory presumption provided by Ontario Regulation 253/07 is evidence in support of the proposition that there is a probable causal linkage between the development of colorectal cancer and workplace exposures associated with firefighting. In fact, a statutory presumption is not evidence, but rather, it is a framework for considering evidence. The epidemiological information which was considered in the development of the presumption is evidence, and in this case, we considered it appropriate, on our own initiative, to place this evidence squarely before Dr. McGoveran, so that he might consider it in providing his opinion. For reasons that are provided above, he concluded that the evidence had epidemiological shortcomings and that, notwithstanding this evidence, in the worker s case, it was not probable that the worker s cancer was causally linked to his occupational exposures. [27] Further, in Decision No. 2574/11I2, we provided our reasons for concluding that the presumption does not apply in the worker s case. Given that the presumption does not apply in this appeal, it would not be appropriate to conclude that it nevertheless affects the disposition of the appeal. We did, however, find it appropriate to consider the scientific/medical information which was apparently taken into account at the time that Ontario Regulation 253/07 was enacted by the Legislature. We have considered that information, and taking into account Dr. McGoveran s report, we are nevertheless unable to conclude that the worker s occupational exposures contributed significantly to his cancer. The bare fact that the presumption was enacted by the Legislature does not have evidentiary value in this appeal. The presumption does not apply in the circumstances of this appeal. In Decision No. 2574/11I2, we provided our reasons for concluding that the presumption does not apply in the worker s case. [28] We have also considered the view expressed in the estate s submission that Dr. McGoveran accepted that there was limited evidence in support of a causal linkage, that the use of the word limited is suggestive of a relationship (see top of page 5 of the submission), and that the Assessor s report is supportive in terms of a relationship between the occupation of firefighting and the resultant colorectal cancer which claimed the worker s life (see bottom of page 7 of the submission). It is apparent to us, however, that, in the context of an entitlement appeal at the Tribunal, when one addresses the issue of whether there is a

11 Page: 10 Decision No. 2574/11 relationship between an occupational exposure and the development of a disease, to establish entitlement it is necessary that the relationship be one in which it is probable that the exposure provides a causal linkage to the development of the disease, or to use other words, that it is probable that the exposure contributed significantly to the development of the disease. It is apparent to us from his report that Dr. McGoveran was unable to conclude that it was medically likely that the worker s cancer was related to his work exposures. A relationship which establishes the causal linkage or significant contribution as a possibility, but not as a probability, is not sufficient to establish entitlement. In the absence of other persuasive evidence which supports the proposition that it is probable that there was a causal linkage or significant contribution between exposure and disease, we attribute significant weight to Dr. McGoveran s opinion that, in the worker s case, such a linkage is not medically likely (i.e., not probable). [29] Finally, we have considered the estate s submission that this is an appropriate case in which to apply the statutory provisions which extend the benefit of the doubt to the worker. We have considered the application of section 124(2) of the Workplace Safety and Insurance Act, 1997, which provides: (2) If, in connection with a claim for benefits under the insurance plan, it is not practicable to decide an issue because the evidence for or against it is approximately equal in weight, the issue shall be resolved in favour of the person claiming benefits. [30] We are not able to conclude that the evidence for and against entitlement is approximately equal in weight. Dr. McGoveran, an accredited expert in the field of occupational medicine, has indicated unequivocally that it is not medically likely that the worker s cancer was causally related to his work exposures as a firefighter. There was no persuasive evidence before us which supports the opposite proposition, that is, that in the worker s specific case, it was medically likely that the worker s cancer was causally related to his work exposures as a firefighter. Accordingly, the evidence for and against entitlement is not approximately equal in weight, in this appeal, and this provision does not apply. [31] We note that in his discussion of benefit of the doubt the estate s representative raised the point that Dr. McGoveran indicated that [the worker s] smoking history offers an explanation for his developing CRC that is approximately as plausible as that set out in the firefighter-crc literature. As we have noted above, Dr. McGoveran stated explicitly that he did not consider a causal linkage between the worker s exposure and his cancer to be medically likely. It does not follow from the fact that Dr. McGoveran believed that the worker s smoking history offered an explanation of the worker s cancer which was approximately as plausible as that set out in the firefighter-crc literature, that the evidence for and against entitlement is approximately equal in weight. Evidence that a causal linkage between the work exposure and the cancer is medically unlikely is evidence directly against entitlement. Evidence that a causal linkage between the worker s smoking history and the cancer is medically unlikely (i.e., approximately as plausible as [the evidence] set out in the firefighter-crc literature ), is not evidence for entitlement of approximately equal weight. [32] For these reasons, we find that the employer s appeal is allowed. The worker and his estate are not entitled to benefits for colorectal cancer.

12 Page: 11 Decision No. 2574/11 [33] Given that the worker s estate does not have entitlement to benefits for colorectal cancer, it follows that there is no entitlement for LOE benefits and that there is no entitlement for survivors benefits.

13 Page: 12 Decision No. 2574/11 DISPOSITION [34] The employer s appeal is allowed. i) The worker does not have initial entitlement to benefits for colorectal cancer as related to his occupation as a fire fighter; ii) iii) The worker and his estate are not entitled to LOE benefits. The estate is not entitled to survivors benefits. DATED: February 12, 2014 SIGNED: M. Crystal, A. Lust, D. Broadbent