Occupational Diseases for Workers' Compensation (7:VI)
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on July 31, 2020.|
A. Overview of Compensable Occupational Diseases
An Occupational Disease is a particular disease or medical condition which is recognized by the Board as likely or possibly caused by work, based on scientific evidence. The Board “recognizes” an Occupational Disease formally by listing it in a policy. These lists are updated as new scientific evidence becomes available. A “disease” is a broad category which includes exposures, cancer, poisons, repetitive strain injuries, hearing loss and contagious and respiratory diseases.
To determine if a worker’s medical condition is a recognized Occupational Disease, consult the two policy provisions listing the recognized Occupational Diseases: Appendix 2/Schedule 1, which sets out Occupational Diseases recognized as qualifying for a presumption of work causation for certain industries, and Policy #25.20 in Chapter 4 of the RSCM II, which sets out additional Occupational Diseases recognized by Regulation. Each type has different tests for work causation, which must be met if the Occupational Disease is to be accepted by the Board as compensable.
B. Occupational Diseases listed in Schedule 1 (Appendix 2) of the RSCM II
Occupational Diseases listed in WCA Schedule 1 (previously B) are matched with the particular industries in which they commonly occur. If the worker has that disease and works in the listed industry at the time of disablement, the Occupational Disease is presumed to have been caused by that work unless the contrary is proven (s 137; previously 6(3)). A presumption of work causation only arises for diseases mentioned in Schedule 1 when the worker is working in the listed industry immediately before the date of disablement. Otherwise, no presumption applies. Also, the contrary may be proven in an individual case. For example, where a worker was employed as a coal miner at or before the date of disablement, silicosis is compensable unless it is proven to have been caused by non-work factors such as smoking.
Occupational Diseases in Schedule 1 include certain kinds of cancers, respiratory diseases including asbestosis, and repetitive strain injuries. If a worker has a Schedule 1 disease but does not work in the listed industry, the worker’s Occupational Disease can still be compensable if work causation can be proven under section 136(1) (previously 6(1)). In addition, section 139 (previously 6.1) of the WCA sets out a special work presumption for firefighters who suffer a heart attack on the job.
Policy #25.20 of the RSCM II provides a helpful guide to the special rules for a Schedule 1 presumption.
C. Occupational Diseases listed in policy #26.03 RSCM II
Additional Occupational Diseases are listed in Policy #25.10, including many repetitive strain injuries and specific conditions such as plantar fasciitis and Lyme Disease. These diseases must be adjudicated under s 136(1) (previously 6(1)) of the WCA, where work causation must be proven in each case.
Section 136(1) states that if:
- a worker suffers from an occupational disease and is thereby disabled from earning full wages at the work at which he or she was employed; or
- the death of a worker is caused by an industrial disease; and
- the disease is due to the nature of any employment in which the worker was employed, whether under one or more employments; then:
- compensation is payable as if the disease were a personal injury arising out of and in the course of that employment.
In addition to these statutory provisions, policy #25.20 sets out guidance for establishing work causation for Occupational Diseases in general, and policy #25.20 sets out the Onus of Proof for non-presumptive Occupational Disease causation. These policies can be helpful guidance when framing a submission on causation for a s 136(1) (previously 6(1)) Occupational Disease case.
There are also particular policies applying to particular conditions, organized by type of condition, which are usually referenced in decision letters involving those conditions.
Policies numbered #27 apply to particular repetitive strain injuries (ASTDs). NOTE: most ASTDs can be injures or diseases, and many are listed in Schedule B (i.e. may or may not qualify for the work presumption).
- Policies #28 for Contagious Diseases (e.g. scabies)
- Policies #29 for Respiratory Diseases (e.g. asthma, silicosis, asbestosis)
- Policies #30 for Cancers
- Policies #31 for Hearing Loss
D. Special Issues for all OccD cases:
1. Date of Disablement
For an Occupational Disease, the first date of disablement is treated as the “date of injury” for the purpose of calculating the one-year time period to submit a compensation application (s 151 previously 55, WCA). Special rules apply for Occupational Disease late applications and for Federal Workers (see policy #25.20).
2. Timely Application & Health Care
For diseases with a long latency period such as asbestosis and most cancers, a timely application may result in only receiving health care benefits at first. These healthcare benefits can include, for example, medical benefits, necessary adjustments to the residential home, and home-care. These benefits may also be claimed by dependants if the worker has died.
3. Standard of Proof
Schedule 1 diseases and the diseases recognized by regulation (#25.10) have an “as likely as not” standard of proof for causation (s 339, previously 99, WCA). This means that where the evidence is equally weighted for different interpretations, the interpretation that favours the worker should be preferred. For example, the Supreme Court of Canada upheld a WCAT decision that an unusually high rate of cancer in a group of lab technicians was an Occupational Disease and therefore compensable (Fraser Health Authority v Workers Compensation Appeal Tribunal, 2016 SCC 25). Though experts had found little positive evidence supporting this link, the cancer rate in this group was highly unusual. Combined with the significant possibility of non-trivial exposure to harmful substances in the workplace, WCAT decided that was enough to satisfy the “as likely as not” standard.
4. Survivor Benefits
If a worker’s disease causes death, the worker’s spouse may be entitled to survivor benefits, even if the worker was not eligible for compensation.
NOTE: WorkSafeBC has developed the Exposure Registry Program, which is designed to be a forum for workers, employers or others to report work-related exposures. This registry is intended to track incidents of exposure to substances which are known to be harmful (such as asbestos), as well as exposures which may in the future be shown to cause disease (such as power line emissions). The information obtained through the registry will create a permanent record of a worker’s exposure and will assist WorkSafeBC in establishing that the manifestation of a disease was due to the nature of the employment in which the worker was employed (a requirement under s 136(1)(b), previously 6(1)(b), of the WCA). This will simplify the adjudication of future claims for occupational diseases caused by workplace exposure.
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