A correspondent who is a ‘regional duty officer working as a staff member for the SA Country Fire Service’ was diagnosed with breast cancer. She continues:

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 1(1) says:

If—

(a) a worker suffers an injury of a kind referred to in the first column of the table in this Schedule; and

(b) the injury occurred on or after 1 July 2013; and

(c) before the injury occurred, the worker was employed by SAMFS as a firefighter for the qualifying period referred to in the second column of the table opposite the injury; and

(d) during that period, 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 employment by SAMFS.

Clause 2 makes similar provisions for CFS firefighters. Clause 3 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’.  For Primary site breast cancer the qualifying period is 10 years.

In this case my correspondent reports a long period as a volunteer and an active firefighter between 1988 and 1997 (ie 9 years). As a regional duty officer, she’s attended active fires ‘to liaise and assist the fire investigators or other emergency services personnel’ and walk through structure fires as part of the investigation without appropriate PPE.

For the presumptive legislation to apply, the applicant has to have been employed (or in the case of a CFS volunteer ‘presumptively employed’) for 10 years, as a firefighter where ‘firefighting duties made up a substantial portion of his or her duties’.  Further the worker has to have been ‘exposed to the hazards of a fire scene’.  What constitutes ‘firefighting’ and ‘firefighting duties’ is not defined though they may be defined in a relevant award or agreement.

What follows is that my correspondent would say she was ‘exposed to the hazards of a fire scene’. Then the question is whether her duties constitute firefighting duties. If a relevant court accepts that the duties described (but not detailed here) are firefighting duties she would be entitled to the benefit of the section.  If, on the other hand, the applicant does not meet that criteria, then the presumptive legislation does not apply.  That does not mean that the person 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.

Conclusion

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. As noted what is required is expert legal advice and again, I would suggest the first stop would be the relevant industrial union.

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.