Firefighters and cancer – WorkCover rights
Since the middle of 2019, significant changes have been made to they way a number of cancers are treated when it comes to claiming WorkCover in Victoria.
Table of Contents
The rebuttable presumption
The change in law means that there is a “rebuttable presumption” that certain cancers have been caused by someone’s involvement as a career or volunteer firefighter. What this means is that the default position is that these types of cancer were caused by the firefighting, but that WorkCover does have the chance to ‘rebut’, or challenge that default position if they feel the cancer was caused for some other reason.
The importance of this is that previously it was up to the injured person to prove that the cancer was caused by firefighting activities, which was the last thing that someone diagnosed with cancer wanted to have to deal with.
Types of cancer covered and injury timeframes
To attract the “rebuttable presumption”, the injured person must have one of 12 particular cancers, and have been employed or served the qualifying period.
Below is the table setting out the cancer types and qualifying periods:
|Primary site brain cancer
|Primary site breast cancer
|Primary site testicular cancer
|Primary site bladder cancer
|Primary site kidney cancer
|Primary non-Hodgkins lymphoma
|Primary site prostate cancer
|Primary site ureter cancer
|Primary site colorectal cancer
|Primary site oesophageal cancer
It is also important to note that the injury must occur on or after 1 June 2016; and needs to occur while either employed/volunteering or within 10 years of ceasing the employment/volunteering. What does “occur” mean?
It means either when the person was first diagnosed as suffering from the disease, or dies from the disease.
Who is covered?
The law covers both employed and volunteer firefighters.
This is a significant change in terms of volunteers, who are otherwise covered under the CFA’s own compensation scheme for any other injuries or conditions. That scheme is created under the Country Fire Authority Act 1958 and is not discussed here.
Here are the definitions of the people covered by the legislation, as well as how ‘firefighting’ is defined:
Career firefighter means a person who is or was employed by a fire service as a firefighter in a role in which firefighting duties are or were a substantial portion.
Volunteer firefighter means a person who performs or has performed firefighting duties, in a role in which firefighting duties are or were a substantial portion, and who receives or received no remuneration for the performance of those duties.
Vehicle and equipment maintenance employee (VEM) means a person who is or was employed in duties involving the mechanical, auto-electrical, or fitting and turning maintenance and repair of firefighting vehicles and equipment.
Firefighting for the purpose of these definitions means exposure to the hazards of a fire scheme, including extinguishing, controlling or preventing the spread of fires.
What’s the relevance of ‘firefighting’? The injured person must have had firefighting duties as “a substantial portion” of what they were doing. This would prevent workers that were primarily office based, for example, being able to rely on the rebuttable presumption.
What is the claims assessment process?
The “rebuttable presumption” does not mean that every cancer claim will be accepted. The claim may be rebutted if there is evidence that the claimed cancer is not due to the nature of the worker’s service as a firefighter i.e. the cause can be identified as non-work related.
In certain circumstances the WorkCover claims agent may refer a matter to the “Advisory Committee” which is made up of members with firefighting, legal, and medical research expertise.
They make non-binding recommendations to the agent about issues on the claim.
Previously rejected claims
If someone made a claim through WorkCover for a cancer between 1 June 2016 and the new legislation coming into effect, and that claim was rejected, they are able to make a new claim under the presumptive legislation.
This is very different to the usual process with WorkCover, where it is not open to an injured worker to lodge a second claim for the same injury circumstances.
What does an accepted claim mean for the injured person?
Once a claim is accepted under the ‘rebuttable presumption’ laws, the same entitlements anyone injured at work can claim are available.
This includes: medical and like expenses, weekly payments, an impairment benefit, and potentially, a common law claim. Get an overview of WorkCover benefits in general, visit this page.
As a result of the changes introduced in the Firefighters’ Presumptive Rights Compensation and Fire Services Legislation Amendment Act 2019 it is now a much more straightforward process for career or volunteer firefighters to have WorkCover coverage for work related cancers.
As long as the qualifying criteria are met, it will be assumed that the cancer is related to the firefighting activities and will be accepted as work related by WorkCover.
Once a claim is accepted through WorkCover, a claimant will be entitled to medical and like expenses, weekly payments, an impairment benefit claim and potentially a common law claim.