A correspondent who is working as a staff member for the SA Country Fire Service was diagnosed with a cancer listed in the presumptive legislation. They continue:
As you are aware, the presumptive legislation has been in place for some time – and with no rejected claims in SA as far as I can ascertain.
The SAFECOM claims manager advised me recently that I am not covered under the legislation in SA as it covers MFS fire fighters and CFS volunteers – but not CFS Staff. I am disappointed CFS staff are not covered – and feel that many other staff of fire fighting organisations are not aware of this.
I am wishing to appeal the decision and wondered on the best approach – obviously need to seek legal advice and representation but unsure who would be the subject matter experts in this area?
Also interested as to whether you have heard of any other such claims being rejected?
As I’ve said before this is not the place for legal advice. As to who would be the subject matter experts, I cannot make any recommendations but would suggest that there are firms specialising in occupationally acquired cancers and workers compensation. Often the best source of referral is the relevant trade union. I have no knowledge of claims being made or rejected. What I can do is look at the relevant law.
Presumptive legislation has become a common feature of firefighting legislation providing that firefighters who acquire certain cancers are presumed, without further proof, to have acquired them in the course of their duties and so are eligible for relevant workers and volunteer compensation. In South Australia the relevant provisions are found in the Return to Work Act 2014 (SA) Schedule 3. Clause 2 says:
(a) a worker suffers an injury of a kind referred to in the first column of the table in this Schedule; and
(b) the worker was a member of SACFS presumptively employed by the Crown as a firefighter—
(i) on or after 1 July 2013; and
(ii) before the injury occurred; and
(iii) for the qualifying period referred to in the second column of the table opposite the injury; and
(c) the injury occurred—
(i) on or after 1 July 2013; and
(ii) in the case of a worker who is no longer a member of SACFS presumptively employed by the Crown as a firefighter—no more than 10 years after the cessation of that presumptive employment; and
(d) during the qualifying period referred to in paragraph (b)(iii), the worker was exposed to the hazards of a fire scene (including exposure to a hazard of the fire that occurred away from the scene),
the worker’s injury is presumed, in the absence of proof to the contrary, to have arisen from his or her presumptive employment by the Crown.
Schedule 3 Clause 1 makes similar provisions for MFS firefighters.
Section 188(1) says “(1) An injury … that … is a disease will be taken to have occurred when the worker first becomes totally or partially incapacitated for work by the injury.”
A volunteer firefighter is, for the purposes of this legislation, ‘presumptively employed by the Crown as a firefighter’ (Return to Work Act 2014 (SA) Schedule 1). Clause 3(a) says ‘a worker is taken to have been employed as a firefighter if firefighting duties made up a substantial portion of his or her duties’. Clauses 3(b) and (c) say:
(b) a worker who was so employed for 2 or more periods that add up to or exceed the qualifying period is taken to have been employed for the qualifying period; and
(c) the qualifying period may include a period or periods that commenced or occurred before 1 July 2013.
For my correspondent’s cancer the qualifying period is 10 years. In this case my correspondent reports a long period as a volunteer and an active firefighter of not quite 10 years. In their current staff role they are not an active firefighter but are required to attended active fires ‘to liaise and assist the fire investigators or other emergency services personnel’. They are required walk through the remains of structure fires as part of the investigation and, they say ‘without appropriate PPE’.
Clause 3 tells us that the qualifying period (10 years) includes service before 2013 and where there are two periods they are added together. If a firefighter had a period as an active firefighter (in this case not quite 10 years) they only need to identify a further year (cll 3(b) and (c)) of current employment that could be described as ‘fire fighting’ duties and exposure to ‘the hazards of a fire scene’ to get the benefit of the legislation (cll 2(c) and (d)).
What constitutes ‘firefighting’ and ‘firefighting duties’ is not defined. For a discussion of what constitutes employment as a firefighter in NSW see Who is a firefighter in NSW? (November 30, 2012). In that post I discuss the decision in Australian Workers’ Union, New South Wales v Office of Environment and Heritage  NSWIRComm 133 (29 November 2012)). I said:
To be classified as a firefighter, an employee needs to be ‘trained, medically fit and qualified’ as a firefighter and engaged in fire fighting duties. Those duties include activities aimed at:
- Control or suppression of a fire including;
- Travelling to or from the scene of the fire;
- surveillance of a running fire;
- logistical support, e.g., meal delivery, fuel delivery, field based repairs on plant and equipment in an active fire ground);
- aerial attack;
- application of chemical fire retardants and foams; and
- office duty performed directly in connection with the organisation and direction of the firefighting effort.
- Hazard reduction including;
- Hazard reduction burning;
- felling trees;
- fire trail maintenance;
- the creation of fire barriers using machinery or hand tools; and
- the use of aircraft to drop incendiary devices.
- Fire stand by duty and fire detection (both fire tower operation and mobile fire patrol).
A similar test may be applied in SA.
It is certainly the case that the presumptive legislation does not apply to any employee of a fire service. It only applies to firefighters (not defined). As Boland J said in Australian Workers’ Union, New South Wales v Office of Environment and Heritage:
The Unions’ position would require a clerical employee who may spend 90 per cent of his or her time on clerical duties and 10 per cent on firefighting duties to be regarded at all times as a firefighter for the purposes of [the exemption] in circumstances where clerical employees generally would not be entitled to the exemption, and consequently the valuable benefit, that [it] provides.
What follows is that my correspondent would need to argue that they meet the test of 10 years as a firefighter going back to the start of their service. Given they had 9 years that appears to qualify, the issue will be whether their staff duties constitute firefighting and whether they were ‘exposed to the hazards of a fire scene’. If a relevant court accepts that the duties described (but not detailed here) are firefighting duties and when added to service as a volunteer the applicant reaches the 10-year threshold, then they would be entitled to the benefit of the section. If, on the other hand, the applicant does not meet that criterion, then the presumptive legislation does not apply. That does not mean that an applicant cannot obtain compensation, rather they will have to go through the process of leading evidence to prove the connection between any exposure and the development of the cancer.
The test is not a simple one. The concept of firefighting duties is not defined so it may be a matter that has to be tested in the South Australian Employment Tribunal.
This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.
Just went through this workers comp presumptive but mine was straight forward, My diagnosis req 15years to qualify and I time which was easy to prove with 25 years service as a Permo Firefighter with FRNSW.
Not sure about SA but here in NSW the approval process was very quick. My application was submitted by my employer, EML took 2 hours to respond with a full approval, and my employer threw all the support at me they could find. As quick as it was to get sorted, I floated around for a month losing sleep and worrying what to do. I’m sure SACFS will be as supportive as FRNSW were for me.
Trust them and teach out to the Dept and they will direct you. Sure you’ll be overwhelmed with support from them too.
Good luck mate and best wishes with your treatment. I bet before you’ll know it you’ll be in remission.