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Crossing the “Fault” Line: A Review of the Ohio Supreme Court’s Decision in Gross¹   
Michelle Bird and Laura Lunansky* In December of 2006 the Ohio Supreme Court split 5-2 in deciding that an Ohio teen was disqualified from receiving temporary total disability (TTD) benefits for his workplace injuries.  The Court found that the teen’s termination, which resulted from his safety violations which caused severe burns to himself and two other employees, constituted “voluntary abandonment” of employment, disentitling the teen to TTD benefits beyond termination. 

David Gross began working for Food Folks & Fun (F.F.F.) in September of 2003 at the age of 16. During his orientation he was given an employee handbook which outlined several safety rules. Among them were instructions on how to safely clean and operate the equipment, including the direction that water should never be boiled in a cooker to clean it. The handbook also warned that employees could be fired for violating the safety rules. Gross acknowledged, in writing, receiving the handbook.

Over the course of his employment, Gross was twice observed putting water in the cooker to clean it, and was told to stop and clean it the proper way. In November of 2003, a co-worker warned him not to open the lid of the cooker while there was boiling water in it. Gross ignored this warning and opened the lid, severely burning himself and two others. 

F.F.F conducted an investigation and, nearly three months after the accident, fired Gross for failing to follow instructions and recognized safety procedures.  The employer then asked the Industrial Commission to discontinue Gross’ TTD compensation as of the date of termination. The Commission agreed with F.F.F., finding that Gross’ termination for workplace misconduct constituted a voluntary abandonment of employment that barred further TTD compensation.  The Court of Appeals disagreed with the Commission, finding that Gross was terminated because he had been injured in the workplace, and that the separation from employment was therefore involuntary. The Supreme Court of Ohio overturned this decision, holding that Gross’ actions went further than mere negligence and therefore the termination constituted voluntary abandonment.

The decision of the majority has been the subject of much discussion in the Ohio workers’ compensation law community. Philip J. Fulton, a worker’s compensation lawyer and past president of the Ohio Academy of Trial Lawyers has declared it to be “the worst decision I’ve seen since I’ve been practicing law,” because it could open the door for employers to try to challenge claims by making any unsafe practice grounds for termination.  Ty Pine, head of the Ohio chapter of the National Federation of Independent Business felt that the court was sending “a clear message that safety is very important in the workplace.”² 

The History of “Voluntary Abandonment” in Ohio

As initially conceived, the voluntary abandonment rule rests on the presumption that eligibility for TTD compensation depends upon the claimant’s continued employment at the job where the injury occurred. This presumption rooted in the Ramirez³ case. In Jones & Laughlin Steel Corp.,⁴ a case in which a claimant had voluntarily retired from his former position after being injured, the appellate court relied on the Ramirez definition to find that a claimant is only entitled to TTD compensation if the industrial injury renders the claimant both unable to perform the functions of his former position and prevents him from returning to that position. Later cases would apply this reasoning to claimants who were incarcerated.⁵  In Rockwell⁶ the court clarified that retirement would only bar TTD compensation if it was not causally related to the industrial injury. A few years later, the appellate court found in Louisiana-Pacific Corp.⁷ that firing could constitute voluntary abandonment because it is often the result of “behavior that the claimant willingly undertook, and may thus take on a voluntary character.”⁸

The Reasoning in The State ex rel. Gross v. Industrial Commission of Ohio

In denying that he had abandoned his employment, Gross relied on cases such as Brown⁹ and Pretty Products,¹⁰ which stand for the proposition that a claimant can only abandon a position if he has the physical capacity for employment at the time of the abandonment or removal.

Brown was an appeal by a worker who contended that the Commission had improperly ordered his permanent total disability compensation suspended while he was incarcerated in a penal institution. In that case, the court drew a distinction between previous similar cases which concluded that TTD compensation could be denied or terminated because a claimant’s choice to engage in criminal activity constituted abandonment of his former position. The court distinguished between permanent disability and temporary disability, stating that “a claimant who has a permanent and total disability is incapable of abandoning a position because that position, in effect, does not exist.”¹¹

In Pretty Products, the claimant suffered a work-related back injury, and obtained a medical excuse slip stating she could return to work on March 1st. She did not report to work for three days after that date, and did not produce an excuse slip that extended her medical leave. As a result, she was terminated. In deciding whether or not the firing constituted “voluntary abandonment”, the court looked to Louisiana-Pacific Corp., a case where a claimant was fired for unexcused absences. The court in Louisiana-Pacific Corp. stated that they found it “difficult to characterize as involuntary a termination generated by the claimant’s violation of a written work rule or policy that (1) clearly defined the prohibited conduct, (2) had been previously identified by the employer as a dischargeable offense, and (3) was known or should have been known to the employee.”¹²  The court in Pretty Products distinguished Louisiana-Pacific Corp, because in the latter case there was no evidence that the claimant’s absences were due to an industrial injury.

In Gross’ case, the court found both Brown and Pretty Products distinguishable based on the fact that Gross’ injury and the workplace misconduct occurred simultaneously, as opposed to sequentially. The court found that Gross had, in effect, abandoned his employment the moment he broke the safety rules, and his termination was only delayed because F.F.F. chose to conduct an investigation into the accident.

Gross also argued that the underlying purpose of the workers’ compensation system is to compensate employees for workplace injuries, without reference to negligence or fault, and therefore, the court should not allow his negligent act to bar his TTD compensation. Although the court found this to be a “thought-provoking argument”, they declined to discuss this issue in any depth. They stated that, as Gross had “willfully ignored repeated warnings not to engage in the proscribed conduct”,¹³ it was not reasonable to ascribe his behavior to simple negligence.

In a strongly-worded dissent, Justice Evelyn Lundberg Stratton expressed concern for the “great potential for abuse in allowing a simple allegation of misconduct to preclude temporary total disability compensation”, and that “the majority [was] tacitly injecting fault into a no-fault system of compensation and reintroducing contributory negligence as a basis for defeating the right to recover compensation.”¹⁴  Justice Lundberg Stratton saw this type of reasoning as the start of a “slippery slope toward assessing fault in industrial accidents”.¹⁵  She envisioned a situation such as where an employee injures himself while improperly shutting down a machine, and is subsequently terminated for incorrectly operating the machine in violation of a work rule. Justice Lundberg Stratton enquires, “Should the employee’s fault preclude his receiving TTD benefits? The answer to this question is no.”¹⁶

Could this happen in Ontario?

The decision to deny Gross further benefits injects an element of culpability into Ohio’s usually no-fault scheme of insurance.  The Ontario workplace safety and insurance system is premised on a similar no-fault basis, but only to a point.  The potential exists for situations in which worker culpability or negligence can affect benefits.  Injured workers may be denied benefits where their actions take them outside the course of employment.  This might occur, for example, when a worker is injured after a physical altercation with a coworker while on the job. 

Similar to the situation in Ohio, an Ontario worker may be denied benefits where his injury is caused solely by his own serious and wilful misconduct.¹⁷  The Ontario legislation, however, has a built-in safeguard of sorts: where an injury results in the worker’s death or serious impairment, the worker’s misconduct will not bar access to benefits.¹⁸  The Tribunal dealt with one such situation in Decision No. 869/93,¹⁹ where a worker suffered abrasions and pain to his back, legs, and arm that required medical attention and a course of physiotherapy.  At the time of the accident, the worker had just been terminated, and it was unclear whether the worker had intentionally jumped or had been thrown from the back of his supervisor’s truck. The Tribunal found it unnecessary to decide whether the worker had been thrown or had jumped, holding that his injuries were serious and he would be entitled to benefits regardless.  If Gross had been employed in Ontario, it is likely that his conduct would be considered wilful, given the number of times he was warned not to fill the cooker with water. Nevertheless, he would likely be entitled to loss of earnings benefits for the duration of his recovery, since his burns were said to be severe.

Gross would likely not, however, be entitled to benefits beyond loss of earnings. Ontario employers are obligated to reemploy injured workers, and face penalties for failing to do so.  Employers may not terminate a worker because of his injury or claim for compensation. In fact, employers who terminate returning workers must show just cause for doing so and must accommodate injured workers with modified duties up to the point of undue hardship. 

This situation arose in Decision 3411/00,²⁰ where a truck driver was terminated following her return to work after an accident.  The worker’s tractor trailer jackknifed on black ice and hit another vehicle, resulting in injury to the worker.  Although the police declined to lay charges, the accident employer felt that the accident was preventable and terminated the worker for her unsafe driving. The employer felt that the worker was driving too fast for the poor winter conditions, and had the choice to remove herself from the road. 

The Board found that by terminating the worker within 6 months of her return to work, the employer had breached its obligation to reemploy the worker. The Board levied a penalty against the employer and began paying benefits to the worker.  The Tribunal, however, disagreed with the Board, finding that the employer had shown just cause to terminate the worker’s employment under its own employment policies.  The Tribunal found that the worker was fired for her own negligence and faulty conduct in causing the accident, not because of her injury or her claim for compensation.  The Tribunal was satisfied that the worker would have been terminated for her role in the accident regardless of whether or not she was injured.  The Tribunal reversed the employer’s penalty and stopped benefits to the worker.

The situation in Decision 3411/00 is similar to the Gross case in that both workers were terminated for their roles in causing the accidents that resulted in their claims.  While the laws in each jurisdiction are different, in both situations the workers were denied further benefits stemming from their termination.  Although the Ontario scheme contains a safeguard for workers who suffer serious injury or death, worker culpability has its place here in Ontario as well as in Ohio. 

* Michelle Bird holds a Bachelor of Arts degree from York University and an LL.B. from Osgoode Hall Law
School of York University.  She is currently articling at the Ontario Workplace Safety and Insurance Appeals Tribunal.

Laura Lunansky holds a Master of Arts degree in Sociology from the University of Toronto and an LL.B. from Osgoode Hall Law School of York University.  She is currently articling at the Ontario Workplace Safety and Insurance Appeals Tribunal.

¹  State ex. rel. Gross v. Indus. Comm. (2006), 112 Ohio St.3d 65
²  Bob Driehaus, “Ohio Ruling Denying Pay in Job Injury Draws Debate” New York Times (December 29, 2006),  online: www.newyorktimes.com
³  State ex. rel. Ramirez v. Indus Comm. (1982), 69 Ohio St. 2d 630, 23 Ohio Op. 3d 518, 433 N.E.2d 586
⁴  State ex. rel. Jones & Laughlin Steel Corp. v. Indus Comm. (1985), 29 Ohio App. 3d 145, 147, 29 Ohio B. 162, 504 N.E.2d 451
⁵  see State ex. rel. Ashcraft v. Indus. Comm. (1987), 34 Ohio St. 3d 42, 517 N.E.2d 533
⁶  State ex. rel. Rockwell International v. Indus. Comm.  (1988), 40 Ohio St. 3d 44 531 N.E. 2d 678, at 35
⁷  State ex. rel. Louisiana-Pacific Corp. v. Indus. Comm. (1995), 72 Ohio St. 3d 401, 650 N.E.2d 469
⁸  Ibid at 5
⁹  State ex. rel. Brown v. Indus. Comm. (1993), 68 Ohio St.3d 45, 48, 623 N.E.2d 55
¹⁰  State ex. rel. Pretty Prods. Inc. v. Indus. Comm. (1996), 77 Ohio St.3d 5, 670 N.E.2d 466
¹¹  Supra note 8 at 8
¹²  Supra note 5 at 5
¹³  Supra note 1 at 32
¹⁴  Ibid  at 40
¹⁵  Ibid at 41
¹⁶  Ibid
¹⁷  see Workplace Safety and Insurance Act, S.O. 1997, c16, s.17
¹⁸  Ibid
¹⁹  This appeal was decided under a predecessor act, but the provision continues to exist in s.17 of the current WSIA.
²⁰  This appeal was decided under a predecessor act, but the provision continues to exist under the WSIA

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The Folly and Foe of Workplace Violence
Luke T. Petrykowski* Introduction

Violence in Canadian workplaces is an important issue for all stakeholders in industry and the community-at-large. Furthermore, its impact on the well-being of Canadian society is not negligible. A recently released study¹ concerning workplace violence and commissioned by Statistics Canada was based on a statistical sampling² of Canadian households in 2004 and its highlights included the following:

“…17% of all self-reported incidents of violent victimization, including sexual assault, robbery and physical assault, occurred at the respondent’s place of work. This represents over 356,000 violent workplace incidents in Canada’s ten provinces.

Workplace violence incidents were much more common in certain employment sectors. For example, 33% of workplace violence incidents involved a victim who worked in social assistance or health care services, 14% of incidents involved victims working in accommodation or food services and 11% of incidents were committed against those working in educational services.”³

The highlights of this study illustrate two important points. Firstly, violence in the workplace is prevalent across Canada. Secondly, the occurrence of workplace violence is not evenly distributed among industrial sectors. Both of which are important to consider from the perspective of occupational health and safety law and workplace safety and insurance law. Practitioners in both areas of law and their institutional counterparts have seen the issue of workplace violence take on greater prominence over the last decade. Its prevalence in litigation and policy-related activities is omnipresent and it is not expected to fade from the media spotlight surrounding it, as incidents of workplace violence in the news abound.

Definition

No discussion of workplace violence would be complete without an operational definition of the term itself. According to the Canadian Centre for Occupational Health and Safety, the scope of workplace violence includes:"

“• threatening behaviour - such as shaking fists, destroying property or throwing objects
• verbal or written threats - any expression of an intent to inflict harm
• harassment - any behaviour that demeans, embarrasses, humiliates, annoys, alarms or verbally abuses a person and that is known or would be expected to be unwelcome. This includes words, gestures, intimidation, bullying, or other inappropriate activities verbal abuse - swearing, insults or condescending language
• physical attacks - hitting, shoving, pushing or kicking”⁴

Duty of Employers and Occupational Health and Safety Law Considerations

Given the diverse and unbridled manifestation of workplace violence, employers should actively respond to the presence of this folly and foe in Canadian society. In the province of Ontario, employers have general duties imposed on them by legislation, which touch upon this topic. For example, subsection 25(2) of the Occupational Health and Safety Act mandates that an employer shall:

“(a) provide information, instruction and supervision to a worker to protect the health or safety of the worker;
(h) take every precaution reasonable in the circumstances for the protection of a worker;
(j) prepare and review at least annually a written occupational health and safety policy and develop and maintain a program to implement that policy.”

All three of these clauses impart a general responsibility for employers to take an active role in creating a safe working environment. Implicitly, these clauses would also seem to include preparing for and responding to the dangers of workplace violence. Clause 25(2)(h) is well recognized as the “general duty clause” or “catch-all” within the employer duty provisions. While not mentioning workplace violence in particular, it is clear that this specific legislative provision could embolden the Ministry of Labour to pursue charges under the Provincial Offences Act if serious deficiencies in workplace violence prevention programs existed.

It should also be pointed out that other Canadian jurisdictions, unlike the province of Ontario, do possess specific legislative and/or regulatory structures concerning workplace violence. For example, sections 4.27 through 4.31 of British Columbia’s Occupational Health and Safety Regulation made pursuant to the Workers Compensation Act specifically concern workplace violence. Similarly, section 14 of Saskatchewan’s Occupational Health and Safety Act and section 37 of their Occupational Health and Safety Regulations specifically concern workplace violence. In recent years, there has been some public and political pressure to introduce specific workplace violence provisions within Ontario’s legislative and regulatory framework. It is quite plausible that in the coming years, these efforts will bear fruit.

Workplace Safety and Insurance Law Considerations

Workplace violence does not only catalyze consideration within the sphere of occupational health and safety law in the province of Ontario. It also engages workplace safety and insurance law as is demonstrated by the Workplace Safety and Insurance Board’s (WSIB) willingness to enact policies to assist in the adjudication of issues concerning workplace violence.

According to WSIB Policy #15-03-11 entitled Fighting, Horseplay and Larking: “Workers who sustain a personal injury as a result of participating in a fight, horseplay or larking at work are generally not entitled to WSIB benefits.”⁵  Hence, participation in fighting (one form of workplace violence) generally excludes participants from entitlement to WSIB benefits. It should be pointed out, however, that “if the fight results solely over work, the claim may be accepted if the injured worker was not the aggressor and did not provoke the fight, or was an innocent bystander.”⁶

From an over-arching perspective, these considerations primarily revolve around the axis of “arising out of and in the course of employment”,⁷ the primary legislative and terminological threshold for entitlement to WSIB benefits. Another WSIB Policy, #15-03-02 entitled Traumatic Mental Stress, also demands the presence of this condition of work-relatedness and converges on the issue of workplace violence.
 
This Policy allows for entitlement to WSIB benefits on the basis of traumatic mental stress resulting from “an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of employment.”⁸  Traumatic events includes “a result of a criminal act, harassment, or a horrific accident, and may involve actual or threatened death or serious harm against the worker, a co-worker, a worker's family member, or others.”⁹  For the purpose of this Policy, specific examples of “sudden and unexpected traumatic events” are included as follows:

“• witnessing a fatality; 
• witnessing or being the object of an armed robbery;
• witnessing or being the object of a hostage-taking;
• being the object of physical violence;
• being the object of death threats;
• being the object of threats of physical violence where the worker believes the threats are serious and harmful to self or others;
• being the object of harassment that includes physical violence or threats of physical violence;  
• being the object of harassment that includes being placed in a life-threatening or potentially life-threatening situation.”¹⁰

Both of the above-mentioned Policies demonstrate that the WSIB has given considerable thought to the interface between workplace violence and entitlement to WSIB benefits. It should also be mentioned that contentious cases concerning workplace violence have appeared at the Workplace Safety and Insurance Appeals Tribunal¹¹ (WSIAT) and these offer guidance for advocacy and policy-planning purposes.

Conclusion

Violence in the workplace is a pressing issue that requires close attention. Its consequences are plethoric and include psychological/physical harm for its victims, lost productivity for employers, spoiled work-environments, and extensive (and costly) engagement with applicable legal and regulatory structures. Thus a great need exists for employers, in particular, to design and implement workplace violence prevention/response programs to repel the folly and foe of workplace violence.

* Luke T. Petrykowski, B.Sc., LL.B. D.O.H.S., is a member of the Ontario Bar. He can be reached at lukepetry@hotmail.com.

¹  S. de Léséleuc. Criminal Victimization in the Workplace. Canadian Centre for Justice Statistics, Statistics Canada Ottawa; 2007.
²  This discussion piece does not intend to comment on the validity or rigor of the study’s design or methodology.
³  Supra note 1 at page 6.
⁴  CCOHS. Violence in the Workplace. Available at http://www.ccohs.ca/oshanswers/psychosocial/violence.html Accessed on February 14, 2007.
⁵  WSIB Policy #15-03-11, Fighting, Horseplay and Larking.
⁶  Ibid.
⁷  Many WSIB policies use this language in establishing basic criteria for entitlement. Its origin has extensive historical significance and is currently found in section 13 of the Workplace Safety and
Insurance Act, 1997.
⁸  WSIB Policy #15-03-02, Traumatic Mental Stress.
⁹  Ibid.
¹⁰  Ibid.
¹¹  See for example WSIAT Decision Nos. 1647/04, 341/04, 392/02, 1619/01, and 1221/00.

 

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Recent Tribunal Caselaw on “In The Course of Employment”
Sarah J. Atkinson* Under section 13 of the Workplace Safety and Insurance Act to be compensable, a worker’s injury by accident must be “arising out of and in the course of employment”.  This term is not defined in the Act however Board policy and Tribunal caselaw continue to provide insight into what “in the course of employment” means. 

“In the course of employment” examines whether the worker was at work or on duty at the time of the accident.  It has a temporal aspect.  There have been several recent Tribunal cases that examine the issue of whether the worker was in the course of employment when the injury occurred.

Decision No. 1364/06 was a situation where a worker was injured when the city bus he was riding was hit by a van when he was on the way to labour market reentry services at a Community college.  In this case, the Vice-Chair found that the worker was not in the course of employment at the time of the accident, and therefore the accident was not compensable.  The Vice-Chair found that the situation was analogous to a worker who was injured while travelling to or from work.  As a worker is usually not covered for any injuries sustained while travelling to and from work then a worker should not be covered for injuries sustained while travelling to and from labour market reentry services.

Decision No. 1792/06 found that a worker was in the course of employment when she inhaled toxic fumes coming from a nearby Shell refinery.  In this case, the worker did not actually go into work because the fire department wouldn’t let workers in due to a problem at the nearby refinery.  Instead, the worker was sent to the fire hall.  The Vice-Chair found that the worker “timed in” at the fire hall and it was at that time the worker sustained a personal injury and succumbed to the fumes.  At that point the worker was under the employer’s supervision and she had entered the “sphere of employment”.

Decision No. 2165/04 involved a situation where two co-workers had gone to a business meeting in Detroit.  After the meeting, the two men returned to Ontario, they stopped for some lunch and shopping and were on their way home rather than back to the office.  On the trip home, they were involved in a “high risk takedown” by OPP when the police mistook their car for a car involved in a robbery.  An accident ensued when another vehicle struck the police vehicle they were in.  The Vice-Chair examined the previous caselaw on the subject of in the course of employment and reiterated the factors to consider outlined in Decision No. 165/96:

1. the nature of the activity performed by a worker at the time of the accident;
2. the relationship of the specific activity to the worker’s normal employment activity or routine;
3. any personal aspect to the activity which gave rise to the accident;
4. the nature of the risk associated with the activity i.e. whether primarily an employment related risk or a public risk;
5. employer control or supervision of the activity;
6. the time of the accident whether within or outside working hours;
7. the location of the accident whether on premises controlled by the employer or on public premises;
8. the type of equipment or tools involved in the accident whether it was equipment supplied by the employer;
9. specific remuneration for the activity at the time of the accident; and
10. contribution to the injury by the activity of the employer or a co-worker.

The Vice-Chair held that at the time of the accident the two men were not in the course of employment.  The Vice-Chair found that the travel at the time was not for a work-related purpose since they were performing personal errands prior to the accident.  The Vice-Chair also found that the workers were not under the employer’s control at the time of the accident but were rather in the control of the OPP.  The parties requested a reconsideration of Decision No. 2165/04, however, the reconsideration was denied in Decision No. 2165/04R.

* Sarah Atkinson is an Associate Counsel in the Office of the Counsel to the Chair at the Workplace Safety and Insurance Appeals Tribunal.
 

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The Use of Epidemiological Evidence in the Workplace Safety and Insurance Litigation Process
Luke T. Petrykowski* Introduction

Epidemiology is commonly understood as the practical discipline or study of the incidence of morbidity (disease) or mortality (death) in human populations. Epidemiology can be rightly thought of as the cornerstone of public health since this discipline is central to preventative medicine efforts. More so, epidemiology has a particular significance within the sphere of human activity known as work and hence this branch of the epidemiological tree is known as occupational epidemiology.

Much of the value that is derived from epidemiology concerns its form and function as a tool that produces useful conclusions about gathered data through the use of sophisticated statistical analysis. In populations of workers, for example, epidemiology can assess the probabilistic significance of exposures to agent x (i.e. benzene) as it relates to outcome y (i.e. leukemia) in a group-setting over a finite period of time.¹  It should come as no surprise, therefore, that epidemiological investigations can provide useful information for the adjudication of alleged occupationally-induced morbidity or mortality within the realm of workers’ compensation systems. Since this epidemiological information can be used to bolster a proposition or assertion, such as the contributory responsibility for the occupational onset of disease or death, it can be rightly understood as evidence.

Epidemiological Evidence

In the province of Ontario, epidemiological evidence has become somewhat popular not only in workplace safety and insurance (workers’ compensation) litigation concerning occupational disease claims but also in product liability tortious litigation. Given the scientific and technical nature of epidemiological evidence and its concomitant complexity, it is usually best understood as expert evidence. The Supreme Court of Canada has provided some general guidance about the complexity concerns raised with such evidence. In R. v. Mohan, Sopinka J. articulated the following:

“There is a danger that expert evidence will be misused and will distort the fact-finding process. Dressed up in scientific language which the jury does not easily understand and submitted through a witness of impressive antecedents, this evidence is apt to be accepted by the jury as being virtually infallible and as having more weight than it deserves.”²

An equally valid concern could be raised in the context of the fact-finding process undertaken within the adjudicative authority bestowed upon the Workplace Safety and Insurance Board (WSIB) and the Workplace Safety and Insurance Appeals Tribunal (WSIAT). Thus a great need exists for all players in the workplace safety and insurance litigation process to understand the origin and significance of this type of evidence, utilize it fittingly within the best traditions of legal advocacy, and accord appropriate weight to it within a transparent and well-reasoned adjudicative structure. As an ancillary matter, it should be noted that the issue of admissibility of epidemiological evidence exists within the four corners of general evidence principles and practice and will not be further discussed here.³ 

Epidemiological Evidence and the Issue of Causation

Fundamentally, adjudication of occupational disease claims in the workers’ compensation scheme distils to one over-riding concept: causation. Here too, the Supreme Court of Canada has provided a definition of causation (albeit in the civil-context) in the oft-cited adage of Sopinka J. found in Snell v. Farrell:

“Causation is an expression of the relationship that must be found to exist between the tortious act of the wrongdoer and the injury to the victim in order to justify compensation of the latter out of the pocket of the former.”⁴

In a similar vein, the efforts of workers’ compensation adjudication embrace a similar mission: discerning the relationship between occupational conditions/exposures and the onset of disease and/or death in work-related settings so as to determine workers’ entitlement to compensation,⁵ albeit within the historical “no-fault” contours of the workers’ compensation system in the province of Ontario.

Notwithstanding these considerations, epidemiological evidence is imbued with intrinsic limitations, few of which are visible to a layman’s lens. The greatest of these limitations is that “[e]pidemiology does not address the question of the cause of an individual’s disease. This question, sometimes referred to as specific causation is beyond the domain of the science of epidemiology. Epidemiology addresses whether an agent can cause a disease, not whether an agent did cause a specific disease.”⁶  Given that epidemiological evidence is population-based, that is concerning groups of people or workers, the particular question of causation cannot be answered for a single individual solely on the basis of extant epidemiological information. A corollary to this assertion is that epidemiological evidence only shows whether a cause is more or less likely as the explanation of a purported association between an exposure and the onset of disease and/or death in an individual.

In a pioneering decision concerning epidemiological evidence in the workplace safety and insurance litigation process, WCAT⁷ Decision No. 257/89 dealt with an occupational disease claim appearing in the form of lung cancer.⁸  In that case, a lack of clinical and diagnostic history concerning work-relatedness of the disease did not defeat the claim outright as the Panel turned to the remaining evidence of the epidemiological-variant. The Panel noted this evidence “can be given weight and [it] can be used in helping to judge whether an individual worker's disability is likely work-related...” and went on to note the “weight epidemiological studies will be given in deciding causation in individual cases will, of course, vary considerably.”⁹

The Panel’s comments shed legitimate light on two important issues. The first being that a searing search for work-relatedness is necessary in such cases. The second, and more saccharine consideration, being that epidemiological evidence can be afforded differential weight in the adjudicative process owing to the differences of merit that are expected between cases.

In occupational disease claim adjudication, this weighted approach to evidence should consider epidemiological evidence along with clinical findings, documentary evidence of exposure (such as industrial hygiene surveys) to workplace agents, biological mechanisms of action, and toxicological data. In the final analysis, however, a holistic adjudicative approach will embrace the concept of contributory significance of any occupational conditions or exposures as they relate to an alleged work-related disease and/or death.

At the WSIAT, this approach takes on the identifiable shape of the “significant contributing factor” test. In the seminal and most important WSIAT decision concerning the use of epidemiological evidence, Decision No. 600/97, this test was cogently explained as follows:

“In deciding these issues of causation, the Tribunal has asked whether employment was a “significant contributing factor” in the development of the disease. And it has applied the standard of proof generally applied in law – that is, the “balance of probabilities”.¹⁰  Is it more probable than not that this worker’s disease is “due to” employment – that this worker’s employment was a significant contributing factor in the development of the disease? If the evidence for and against a finding of work-relatedness is approximately equal in weight, the issue is decided in the worker’s favour.”¹¹

A Framework for Understanding Associations Found in Epidemiological Studies

In deciding what contribution a worker’s employment had upon the onset of alleged occupational disease where epidemiological evidence has been introduced into that process, adjudicators will have to assess the strength of the purported association between occupational conditions/exposures and onset of morbidity or mortality. The hallowed standard by which this validity is usually evaluated in the scientific community are found in the nine postulates of Sir Austin Bradford Hill, a British scientist. In 1965, he delivered a landmark lecture¹² on how his criteria should be used to determine if statistical associations (as found within epidemiological studies) are in fact causal associations. While this is not the only existing framework for fulfilling such an important task,¹³ it is the most widely recognized one and has been mentioned in WSIAT case law.¹⁴ 

The famous Bradford Hill association-causation postulates, with brief explanatory comments, are as follows:

(1) Strength – Stronger associations (i.e. those having greater statistical merit)¹⁵ are more indicative of causality than weaker associations.
(2) Consistency – The existence of similar findings among other studies is more indicative of causality than a situation where few if any similar findings exist.
(3) Specificity – A demonstration that one causal factor is exclusively linked to the onset of one particular disease will be indicative of causality.
(4) Temporality – A chronological display of the causal factor preceding the onset of disease is important to establish causality. It is arguably the most important postulate since an absence of temporality may negate the merit of other postulates.
(5) Biological gradient – Also known as a dose-response relationship/curve, the greatest weight is usually afforded to this type of data since it utilizes the intuitive measures of intensity and duration of exposure as it relates to onset of disease.
(6) Plausibility – An association should usually have a known or well-theorized biological mechanism of action before causality can be considered.
(7) Coherence – An association will be more indicative of causality where other bases of knowledge (i.e. biochemical, human, and animal studies) do not contradict it.
(8) Experimentation – An association will be more indicative of causality if supportive experimental evidence exists and if such experiments were rigorously designed.
(9) Analogy – An association will be more indicative of causality if a similar onset structure or mode of operation exists in science (i.e. one agent causes birth defects hence another agent may also cause birth defects). It is arguably the least important postulate since its main function is to aid hypothesis and investigation efforts.
 
The Bradford Hill framework is a logical starting point for the evaluation of epidemiological evidence in the workplace safety and insurance litigation process. Advocates can advance arguments through each of these postulates to either support or undermine the weight that should be accorded to epidemiological evidence. For example, where diverse and numerous studies support that diesel exhaust causes lung cancer, an advocate could argue that this statistical association is in fact a causal association on the basis of consistency and coherence. Conversely, where lung cancer is claimed to be occupationally-related, an adversarial advocate could argue that specificity is absent since this particular disease has a number of non-occupational factors (i.e. smoking, diet, lifestyle, etc.) that contribute to its onset.

The Achilles Heel of Epidemiological Evidence

Notwithstanding these considerations, epidemiological evidence possesses more than one Achilles heel. A skilled advocate familiar with basic epidemiology would be able to point out these shortcomings. As noted above, the most glaring weakness of epidemiology is that it is population-based thus saying nothing about a particular individual but rather the group that the individual may have belonged to.

This flushes out an interesting point about the general applicability of epidemiological evidence. Where an epidemiological study is introduced concerning an industrial locality to which the claimant did not actually belong to, this evidence should be treated with caution and given little if any weight owing to its absence of evidentiary proximity.¹⁶  For example, a study concerning the onset of a musculoskeletal condition among workers in the pulp and paper industry will have very little relevance unless it is clear that the worker was one of the workers examined within the study or possessed physical demands that were approximate to the workers under study.

A related insight to the issue of proximity is that various categories of publication exist within the epidemiological realm, which should influence the weight that is accorded to them when introduced into the workplace safety and insurance litigation process. As one author puts it, “well-designed, randomized controlled trials (RCTs) produce medical evidence that can meet the scientific standard of proof. Systematic reviews of multiple RCTs are even better. Meta-analyses are the gold standard of scientific medical evidence.”¹⁷ 

This reliability hierarchy has a direct connection to how epidemiological evidence should be treated in occupational disease claim adjudication in that meta-analyses,¹⁸ for example, should be given more weight than RCTs. For the purposes of this discussion, it should be noted that most of the studies that are used as epidemiological evidence will be retrospective cohort studies (weaker than RCTs), a study design that historically reconstructs exposure and analyzes incidence of morbidity or mortality in a group of workers (i.e. a cohort).¹⁹  It should be noted that this recital is not meant to be exhaustive but merely informative.

Every epidemiological study has its specific weaknesses and deficiencies thus impacting the weight that should be accorded to it in the workplace safety and insurance litigation process. If properly identified and understood, these failings could prepare an advocate or adjudicator on how to treat such evidence.

Epidemiological studies can be affected by inherent categorical biases, which undermine their statistical worth. “Selection bias represents a flaw in the recruitment or retention of subjects within the study. Other types of bias include misclassification bias (where exposure or disease status determination is systematically flawed), and recall bias (where those with disease are more likely to remember exposure than those exposed without disease).”²⁰  Another type of bias is publication bias, where many relevant studies without spectacular results go unpublished leading to an under-representation of some findings. Another variant of publication bias occurs where studies are well-funded or orchestrated by particular industries so as to potentially over-represent some findings.

Another limitation to the brick and mortar of epidemiological evidence is that the foundational science it rests upon is ever-changing. Where such studies are introduced into the workplace safety and insurance litigation process, a careful review of the recent medical literature needs to be undertaken because a study detailing a possible causal association between agent x and outcome y published in 2003, for example, may contain little merit in 2008. The eminent Sir Austin Bradford Hill captured associated sentiments by noting:

“All scientific work is incomplete - whether it be observational or experimental. All scientific work is liable to be upset or modified by advancing knowledge. This does not confer upon us a freedom to ignore the knowledge we already have, or to postpone the action that it appears to demand at a given time.”²¹

The above-noted discussion of limitations on the use of epidemiological evidence was by no means meant to be exhaustive. In this novel medico-legal pasture, there remains a great opportunity for partners in the workplace safety and insurance system to graze newfound knowledge and innovation. Although directed at researchers, some further instructive and potentially beneficial guidance concerning the use of epidemiological evidence in the workplace safety and insurance litigation process is reproduced here:

“Researchers should follow the following guidelines when reviewing epidemiologic and industrial hygiene studies for disease causation in working populations:
• Identify and review all pertinent studies related to the exposure and disease;
• Devalue or reject studies of substantially poor design which fail to account for confounders and sources of bias to the extent that the results may be deemed unreliable;
• Analyze the remaining studies for the factors described above; and
• Base conclusions of disease causation potential on an assessment of the findings from each of the relevant studies, weighted by the type of study and strength of the associations, taking into account the limitations inherent to observational epidemiology.”²²

Conclusion

This discussion piece has attempted to corral the many untamed considerations concerning the use of epidemiological evidence in the workplace safety and insurance litigation process. For advocates and adjudicators alike, it could serve as a helpful starting point for any journey whose terminus is a proper understanding of the role of occupational epidemiology in the above-mentioned process. Prudence and care should be exercised when guiding any person or organization along this path of understanding. 

* Luke T. Petrykowski, B.Sc., LL.B. D.O.H.S., is a member of the Ontario Bar. He can be reached at lukepetry@hotmail.com.

¹  For example, the epidemiological study entitled “Mortality and cancer morbidity in a cohort of Canadian petroleum workers” by R.J. Lewis, A.R. Schnatter, I. Drummond, N. Murray, F.S. Thompson, A.M. Katz, G. Jorgensen, M.J. Nicolich, D. Dahlman, G. Theriault (Journal of Occupational and Environmental Medicine 2003; 60: 918-928) examined the incidence of cancer and death arising from exposure to workplace agents such as hydrogen sulphide in a large population of 25,292 petroleum industry workers. Incidence among exposed workers was compared to non-exposed workers in this study.
²  [1994] 2 S.C.R. 9 [hereinafter Mohan].
³  A refusal by an administrative adjudicative body such as the WSIB or WSIAT to admit relevant and otherwise admissible evidence would likely constitute a violation of natural justice, with specific legal rights, privileges and remedies accruing to the aggrieved party in that event.
⁴  [1990] 2 S.C.R. 311 [hereinafter Snell].
⁵  It should be noted that the model of occupational disease compensation afforded to workers within the jurisdiction of the workers’ compensation system in the province of Ontario is mostly thought of as monetary. While this is correct by way of primacy, the secondary and sometimes just as significant forms of compensation can include labour market re-entry services (i.e. where a worker with a work-related multiple chemical sensitivity cannot return to his original workplace) and specialized health care services (i.e. where a worker is affected by work-related chronic dermatitis and takes advantage of the specialized WSIB Occupational Contact Dermatitis Program of Care).
⁶  U.S. Federal Judicial Center, Reference Manual on Scientific Evidence. 2nd ed. LPR Publication, Palm Beach Gardens, Florida; 2000 at 381-382.
⁷  The Workers’ Compensation Appeals Tribunal (WCAT) was the predecessor to WSIAT.
⁸  Lung cancer is a very common neoplasm with many onset factors unrelated to occupational exposures or conditions. This highlights the fundamental notion that disease causation is a multi-factorial process that requires an Argus-eyed approach to discerning causation and compensation. An important similarity exists between a medical approach to such morbidity (i.e. treatment) and the legal approach to it (i.e. compensation), in that both utilize a probabilistic model for assessment, intervention, and resolution. For more information on how probability-related mathematics impacts the relationship between epidemiology and compensation see R. Wakeford “Occupational exposure, epidemiology and compensation” Journal of Occupational Medicine 2006; 56: 173–179.
⁹  WCAT Decision No. 257/89 at page 3.
¹⁰  In Snell, causation and the applicable standard of proof known as the ‘balance or probabilities’ was commented upon in the following manner: “Causation is established where the plaintiff proves to the civil standard on a balance of probabilities that the defendant caused or contributed to the injury.” 2 S.C.R. 311.
¹¹  WSIAT Decision No. 600/97 at para. 132.
¹²  A.B. Hill “The environment and disease: Association or causation?” Proceedings of the Royal Society of Medicine 1965; 58: 295-300.
¹³  The Bradford Hill postulates are rivalled in their primacy as assessors of the strength of causal associations by the more recently established criteria known as the Henle-Koch or Evans-Henle-Koch postulates. For a discussion of the latter, see generally B. Black, D.E. Lilienfeld “Epidemiological proof in toxic tort litigation” Fordham Law Review 1984; 52: 732-785 at 763.
¹⁴  See for example, WSIAT Decision Nos. 600/97 and 429/02.
¹⁵  This discussion piece has not attempted to catalogue the wide array of specific difficulties concerning how to comprehend and interpret the numerical data of statistical associations, a central tenet of epidemiology. For more information concerning this important topic, one should consult with an introductory epidemiology text or refer to the following excellent article that would be of great interest to the legal profession: D.W. Barnes “Too Many Probabilities: Statistical Evidence of Tort Causation” Law and Contemporary Problems 2001; 64: 191-212.
¹⁶  Employers should be forewarned that when they authorize an epidemiological study to be conducted at their operational premises, this introduces the prospect that epidemiological evidence will be produced (published or unpublished) that will illustrate statistical associations for occupationally-related morbidity and mortality in those workplaces. Conversely, such a study could potentially provide statistical support for the position that morbidity and mortality were not occupationally related. As such, careful thought and strategic consideration need to be undertaken when authorizing such efforts.
¹⁷  D.W. Miller, C.G. Miller “On Evidence, Medical and Legal” Journal of American Physicians and Surgeons 2005; 10: 70-75 at 71.
¹⁸  A meta-analysis is a type of study that mathematically pools the statistical results of numerous related studies (this number is usually below twenty but can on occasion approach one hundred) to convincingly identify the existence or absence of meaningful causal trends.
¹⁹  See supra note 1 for an example of this type of epidemiological study.
²⁰  R.M. Lynch, M.S. Henifin “Causation in Occupational Disease: Balancing Epidemiology, Law
and Manufacturer Conduct” Risk: Health, Safety & Environment 1998; 9: 259-270 at 265.
²¹  Supra note 12 at 300.
²²  Supra note 20.

 

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Information about the Motion to Terminate LSUC Certified Specialist Program It has come to the OBA’s attention that a motion to terminate the CSP for all areas of law effective January 1, 2008 will be heard by the Law Society on March 29, 2007.

For more information on this report, please click on the link below:
Report to Convocation February 22 2007

Our section executive would not be in favour of such a motion. We need your help and support on this important and urgent issue.

Please find attached a copy of a sample letter sent by Stephen Roberts.

We are encouraging all our Section members to write their own individual letters to the Treasurer of the Law Society at the following address:

Gavin MacKenzie
Treasurer
The Law Society of Upper Canada
Osgoode Hall, 130 Queen Street West
Toronto, Ontario M5H 2N6
 

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