Widow wins long battle for WSIB benefits 0
For Wayne Harris’s widow, Nancy, the long wait is finally over.
When Harris died of colon cancer in the fall of 2008, volunteer firefighters were not eligible for benefits from the Workplace Safety and Insurance Board (WSIB) for work-related cancer.
A year earlier, the provincial government had changed the law to allow full-time firefighters to become eligible for WSIB benefits for eight types of work-related cancer.
And the government promised it would consult with part-time and volunteer firefighters, fire investigators and forest firefighters to develop criteria for how the regulation would apply to them.
Nancy was advised to file a WSIB claim so she would have a claim number when the law was finally changed to include volunteers.
Her initial claim was denied.
When the government finally acted in November 2009, she applied to have her claim re-opened and was asked for further documentation.
There was no doubt in her mind what caused Wayne’s death: all four doctors who had treated him said he died from colon cancer.
But their letters verifying the prognosis didn’t satisfy the WSIB.
Nancy was asked by the WSIB if an autopsy had been performed.
“Why would I have an autopsy done when four doctors — two of them specialists — were positive about the primary cause of death?” she said in an interview with The Free Press.
“In hindsight, had I known I would need the results for WSIB purposes, I would certainly have had it done,” she says.
The WSIB questioned the medical evidence that colon cancer was the primary cause of death.
Finally, she turned to lawyer Rod Ferguson of Ferguson Barristers LLP.
In an interview this week, Ferguson explained that it’s necessary “to prove to the satisfaction of the WSIB that the cancer originated in the large bowel.”
“The records available did not prove that to the WSIB’s satisfaction,” said Ferguson. “The colonoscopy had not detected the cancer’s origin.”
Ferguson sent Nancy off to find new evidence and turned the file over to Rachel Leck, one of his associates.
Nancy says she was told by the doctor’s office that since Wayne had died two years earlier, the X-rays and CT scan wouldn’t have been kept.
Ferguson instructed her to see if she could find any copies.
“I went directly to the hospital. They still had them, but said I was lucky I came when I did as they were to be destroyed next year.”
Leck says Nancy was between a rock and a hard place.
The colonoscopy had not detected the primary cancer. “There was a bit of inconsistency around what actually appeared versus what appeared on the CT scan.”
Leck first consulted an oncologist in Toronto, who advised her that the X-rays and CT scan should be reviewed by a radiologist. Leck located a staff radiologist from Toronto East General Hospital who was acceptable to the WSIB.
Nancy had to cover his fee of about $3,000, but the WSIB accepted his report which said the primary cancer had been in the colon.
Last Thursday, she received a call from WSIB to say her claim has been accepted.
WSIB will cover Wayne’s funeral costs and she will receive retroactive benefits and a monthly pension.
Leck says “what was unfortunate in this case is that they had been able to diagnose metastatic liver cancer and metastatic lung cancer, but Wayne had been too ill — too unstable — for a biopsy to be done.”
Ferguson says he took the case on the basis that Nancy could pay for the additional medical report. She had received some insurance from the volunteer firefighters’ association plan following Wayne’s death.
“Most people in circumstances like this would not be able to afford the cost of hiring a medical expert,” Ferguson said. “This is a field of law many civil litigation lawyers neglect because few people can afford the cost of obtaining expert evidence.”
Mike Gagnon, president of the Midland Professional Firefighters Association, says about 1,700 Ontario firefighters have filed claims for cancer-related illness since 1998. Only 40% of the claims have been allowed.
The eight cancers currently covered in the legislation include: brain cancer (10 years service), bladder cancer (15 years), kidney cancer (20 years), colorectal cancer (diagnosed before 61st birthday), non-Hodgkin’s lymphoma (20 years), certain types of leukemia (15 years), ureter cancer (15 years), and esophageal cancer (25 years).
The professional firefighters association has been lobbying the government to recognize six additional forms of work-related cancer faced by firefighters.
Manitoba, Alberta and British Columbia already recognize the additional six cancers: multiple myeloma, testicular cancer and cancers of the skin, breast, lungs and prostate.
“Now that the Ontario legislature is prorogued,” Gagnon says, “efforts to provide the additional protection for Ontario firefighters are stalled. People are filing claims, though, so they can be pursued when the changes are implemented.”
He wonders, though, given the lengthy battle that Nancy — now Nancy French — faced, how long those claims will take to resolve.
Meantime, he suggests, Nancy should knock on the Town of Midland’s door.
“Wayne’s death happened in the line of duty.”