Proceso de cierre del proyecto

coverage of 93.9

percent of workers…

business may no longer be viable after an extended absence from work).6

A recent decision by the Appeals Tribunal has implications for the three-worker rule. The decision will allow a previously assessed employer who falls below the three-worker threshold to make an “after the fact” claim for a return of their premiums.

It is not a question of availability of coverage, given the Act that employers with one worker and earnings of $3,000 can obtain voluntary coverage. This seems to the Independent Review Panel a minimal requirement. Rather, it is a question of whether or not coverage should be compulsory. This presents a different set of issues. How could WHSCC effectively consult with employers with less than three workers or sole proprietors/independent contractors?

The WHSCC has addressed the issue of expansion of coverage on a continuing and regular basis. After a comprehensive review in 2003, the Board of Directors decided against the expansion of coverage. The Independent Review Panel believes that no stakeholder group should be added without consultation by the WHSCC and that universal coverage should remain a topic of ongoing consideration. The Panel heard representation from various groups about non-profit and charitable organizations, but no briefs were submitted from these organizations. The Panel would encourage the Commission to examine a process to permit non-profit and charitable organizations to purchase optional coverage for their volunteers based on risk and prevention models for volunteers. However, this should not be instituted without a rigorous evaluation of the impact on this employer-funded insurance scheme.

Recommendation #25

The Independent Review Panel recommends that the Commission engage in consultations with the fishing industry to determine whether that industry should continue to be exempt from mandatory coverage. Any extension of coverage should only occur after employers and workers in this industry have had a full and free opportunity for consultation with the WHSCC.

Recommendation #26

The Independent Review Panel recommends that the Commission be proactive in promoting the availability of voluntary coverage for small employers.

6 _{Morneau Sobeco, Report on Certain Coverage, Benefit Provisions and Operational Aspects of Current System,} January 2008, p. 6.

…no stakeholder

group should be

added without

consultation by the

WHSCC…

Occupational Diseases

Occupational diseases continue to be a significant issue for all compensation boards in Canada.7 _{In New Brunswick, it represents one} to three percent of claims accepted by the Commission. An accident as defined by the Workers’ Compensation Act takes place suddenly and harm is generally perceived immediately. For an occupational disease, the effect of exposure is typically perceived over a period of time. It is estimated that occupational diseases represented approximately one half of the total of workplace-related fatalities that occurred in Canada in 2005.8 _{A report released in October 2005 by the Canadian} Centre for Occupational Health and Safety (CCOHS) noted "deaths due to work-related disease increased steadily over the past two decades". Despite this increase, recognizing and preventing work-related diseases continues to be a challenge because of:

• The complexities involved in linking work and health issues;

• A limited understanding of exposure-effect relationships;

• Long latency periods; and

• Limited disease reporting and data collection. 9

In New Brunswick, occupational diseases represent one to three percent of claims accepted by the Commission and $1 to $4 million of annual claim costs of $98 to $114 million. Claims accepted by other jurisdictions show that there are 768 occupational diseases not yet found in WHSCC’s list of previously accepted claims.

The Board of Directors, as a response to the risks associated with occupational diseases, requested a comprehensive study “to determine if the Commission’s current occupational disease liability is sufficient, as well as to identify potential risks to the Commission.”10

The Occupational Disease Study showed:

That only 1/3 of disease claims that could be filed with the Commission are actually filed. Morneau-Sobeco estimates that the current liability reserve is adequate to cover a short-term increase in that ratio and that this should be monitored in the future.

Although difficult to measure, the actuary estimates that there will be an increase in the number of new diseases (primarily cancers) over the next 20 years (to an estimated 10 to 16 new claims in 2025) and that the current liability reserve is adequate to cover a short-term increase and that this should be monitored in the future.11

7_{Association of Workers’ Compensation Boards of Canada, Strategic Issues -Top Three Issues in Workers’} Compensation Jurisdictions; Association of Workers’ Compensation Boards of Canada (2005). Emerging Issues for Workers’ Compensation, 2003.

8 _{Centre for the Study of Living Standards, Five Deaths a Day: Workplace Fatalities in Canada, 1993-2005, 2006.} 9 _{Canadian Centre for Occupational Health and Safety, Recognizing and Preventing Occupational Disease: Strategies}

and Recommendations from Canadians, 2005. 10 _{WHSCC Information Document, p. 56.}

Occupational Cancers and Firefighters

As of mid 2006, some jurisdictions had adopted presumption legislation for firefighters including British Columbia, Alberta, Manitoba, Saskatchewan, and Nova Scotia although there may be certain conditions that must be met, i.e., Manitoba firefighters must work a minimum of 15 years with regular exposure to qualify for certain identified cancers.

Québec, by contrast, has determined that insufficient evidence exists. Scientific literature relating some cancers to the occupation of firefighting is suggestive but not conclusive.

An amendment to Ontario’s Workplace Safety and Insurance Act, 1997 (WSIA), received Royal Assent on May 4, 2007 allowing the government to make regulations affecting Ontario's full-time, part- time, and volunteer firefighters and fire investigators.12

The Ontario government has now introduced a regulation for full-time firefighters that identifies and sets out the conditions and restrictions in order for each of eight types of cancer (see following chart), as well as heart injuries suffered within 24 hours of fighting a fire or participating in a training exercise involving a simulated fire emergency, to be presumed to be work-related, unless shown otherwise.

Cancer / Illness (Ontario) Criteria – Years of Service

Brain Cancer 10 years Bladder Cancer 15 years Kidney Cancer 20 years

Colorectal cancer 10 years (diagnosed prior to 61st birthday)

Non-Hodgkin's lymphoma 20 years Leukemia (certain types) 15 years Ureter cancer 15 years Esophageal cancer 25 years

Heart injury Within 24 hours of fighting a fire or participating in a training exercise involving a simulated fire emergency

Firefighters in New Brunswick, including volunteer firefighters, are covered under the Workers’ Compensation Act although until recently they had not been covered through a presumption clause. On December 20, 2007 Bill 12, An Act to Amend Workers’ Compensation

Act, received Royal Assent. The presumption legislation includes: 85.1(2) Where a worker who is or has been a firefighter

suffers from a disease prescribed by regulation, the

disease is presumed to be an occupational disease arising out of and in the course of employment as a firefighter, unless the contrary is proven.

85.1(3) The presumption in subsection (2) applies only to

a worker who has been employed as a firefighter for a minimum period established by regulation and who has been regularly exposed to the hazards of a fire scene, other than a forest fire scene, throughout that period of employment.

As of the writing of this Report, no regulations have been issued.

Discussion of Key Issues

The Independent Review Panel commends the WHSCC on its proactive approach on occupational diseases and acknowledges the Commission’s report entitled Report on Occupational Disease Study

2005-2006.

To maintain the integrity of the system, the Panel suggests that “dominant cause” remain the primary test for adjudicating occupational disease claims so as to be appropriately prepared to address occupational disease claims when they arise.

Mental Stress

As seen in the following table, many jurisdictions including New Brunswick, allow workplace or occupational stress to be compensable only when there is “an acute reaction to a traumatic event”.

Workplace / Occupational Stress AB Yes – Sect. 24(1)

BC Yes – Sect. 5.1

MB Only for “acute reaction to a traumatic event.” NB Only for “acute reaction to a traumatic event.” NL Only for “acute reaction to a traumatic event.” NT/NU Not legislated. Policy provides guideline – limited

NS Only for “acute reaction to a traumatic event.”

ON Only for “acute reaction to a traumatic event.” Policy allows for

traumatic mental stress arising from criminal acts and harassment, cumulative effect, actual harm or threats to co-worker, workers’ family or others.

PE Only for “acute reaction to a traumatic event.”

QC Psychological diseases must be related to an “unforeseen and

Workplace / Occupational Stress SK “Any disablement’ which arises out of and in the course of

employment. Policy – claimant must show they suffered an emotional “breakdown” due to stressful nature of their work to be eligible for compensation.

YT Yes. Sect. 117 – definition of disability. Board has power to provide

compensation for all work-related physical or psychological disabilities.

Source: AWCBC

Discussion of Key Issues

The Independent Review Panel heard differing views from stakeholders about making work related stress compensable. The Panel believes that the current legislative requirement for workplace or occupational stress to be compensable is consistent with the majority of other Canadian jurisdictions and it does not recommend any changes at this time.