There is some good news for NSW Firefighters who have been diagnosed with cancer with the introduction of the Workers Compensation Legislation Amendment (Firefighters) Act 2018 which was assented to and made law on 28 November 2018 (Part 19A of the Workers Compensation Act, 1987) (WCA).
The legislative amendments provide that for those who have been diagnosed with any of the 12 specified cancers from 27 September 2018, their cancer will be accepted as having arisen out of or in the course of their employment and that it is substantially work-related; negating the onus of the worker to satisfy the requirements set out in ss4 and 9A of the WCA (unless it can be proved to the contrary).
However, certain criteria must be met in order for the Firefighter to avail themselves of this presumption:
Firstly, they must establish that they are an ‘eligible firefighter’:
Section 19A(2) defines an ‘eligible firefighter’ as follows:
‘A worker is an eligible firefighter if the worker:
a. has, at any time, been engaged in firefighting employment, and
b. has contracted a disease that is a cancer of a kind specified in Schedule 4.
The compensable cancers specified in Schedule 4 are limited to the following cancers and the Firefighter must have served the qualifying period attached to the cancer, subject to the requirements of s19A(4-6) of the WCA:
Primary site brain cancer 5 years
Primary leukaemia 5 years
Primary site breast cancer 10 years
Primary site testicular cancer 10 years
Primary site bladder cancer 15 years
Primary site kidney cancer 15 years
Primary non-Hodgkin lymphoma 15 years
Multiple myeloma 15 years
Primary site prostate cancer 15 years
Primary site ureter cancer 15 years
Primary site colorectal cancer 15 years
Primary site oesophageal cancer 25 years
Importantly, the cancer must be considered to be a ‘Primary Site’ cancer in all cases excepting multiple myeloma and Leukaemia.
This means that cancers that have metastasised from another type of cancer to the specified cancer above (e.g. a cancer that originated as a skin cancer but metastasises and affects the brain), would not be considered ‘primary site’ and therefore would not be compensable. The onus to prove that the cancer is a primary site cancer rests with the worker.
In some cases, there may also be uncertainty as to whether the cancer claimed falls within the prescribed cancers (e.g. a worker may claim cancer of the throat which is non-compensable of itself but may fall under the broader category of oesophageal cancer). Again, the onus to positively assert that the cancer is a compensable one is to be borne by the worker.
But what if a worker was diagnosed with a compensable cancer prior to the commencement of the legislative changes?
There is still some recourse for those workers to avail themselves of the presumptive legislation in regard to what is considered to be an ‘existing disease’.
Part 19K of Schedule 6 (transitional provisions) of the WCA 1987, provides that if a worker was suffering from an existing disease, they may still be able to pursue a claim under the presumptive provision, provided a claim was made prior to 27 September 2018 and the claim was denied.
Such denial must extend to the issue of injury and causation (that is the denial was on the basis that the disease was not contracted in the course of employment or that the employment was not a substantial contributing factor, or a substantial contributing factor, to contracting the disease).
Without having satisfied this requirement, the worker will not be able to make a claim under the presumptive legislation provisions.
If a worker is able to satisfy the legislative requirements above, they will be entitled to weekly benefit compensation for all periods of incapacity for work associated with the injury (disease) together with treatment, travel and related expenses, subject to the provisions of ss33, 59 and 60 of the WCA, in the usual course.
Lump sum compensation for injury and pain and suffering may also be available pursuant to ss66 and 67 of the WCA.
In the case of death, it must firstly be established that the Firefighter’s death was attributable to the compensable cancer. The above legislative requirements also need to be satisfied before any entitlement to compensation pursuant to ss25 and/or 26 of the WCA is established.
Implications for Employer
Whilst the above provisos will mean that not all Firefighters will be able to avail themselves of the presumptive legislation, the fact that New South Wales legislation is now aligned with other States and Territories of Australia, and is in keeping with international trends, provides relief to some Firefighters.
However, the legislation is complex, and requires a detailed review of the worker’s complete medical history to satisfy the relevant requirements for successful claim. Accurate consideration of whether a specified cancer was in fact a primary site cancer will also require detailed analysis and medical evaluation.