Justice sends cancer cluster case back

Decision was 'patently unreasonable,' writes Savage

A B.C. Supreme Court justice has sent a workers compensation tribunal decision regarding a cancer cluster at Mission Memorial Hospital (MMH) back to that appeals body.

The Workers’ Compensation Board initially said the breast cancer cases of Patricia Schmidt, Katrina Hammer and Anne MacFarlane were not caused by their work at MMH’s lab, but a Workers’ Compensation Administrative Tribunal (WCAT) disagreed in 2010 and 2011. The WCAT hears workers’ compensation appeals and is independent of WorkSafeBC.

Fraser Health Authority disputed the tribunals’ decision, and Justice John Savage’s judgment was released this past Tuesday. The FHA wanted the case dismissed, but Savage said sending it back to WCAT would allow them to hear any new evidence that might alter the decision.

Savage wrote that the WCAT’s decision was “patently unreasonable and cannot stand” and that, “There was no positive evidence that the petitioners’ cancer was caused by occupational factors.”

He also noted that “a higher-than-expected rate of cancer in a workplace cannot alone provide evidence that the cancer was caused by occupational factors” given the Occupational Health and Safety Agency for Healthcare in B.C. (OHSAH) report into the issue states clusters of cancer in a workplace are statistically certain to arise in various places and times.

OHSAH conducted an investigation and released its findings March 2004 after 11 employees at MMH were found to have cancer; seven of them breast. It concluded that the risk factors were no longer present at the hospital, and that the increased incidence of cancer could not be determined, but could have been due to:

• past exposures to chemical carcinogens or, less likely, ionizing radiation;

• a statistical anomaly; or

• reproductive or other non-occupational risk factors.

The air intake vent of the hospital lab was located near the incinerator smokestack where medical waste used to be burned. The OHSAH report noted that medical incineration of infectious wastes and plastics is a public concern. Mission’s incinerator was decommissioned in 1994.

– with Record files