2.6.1.8 Determining liability for firefighter cancer claims

2.6.1.8.1 Career and volunteer firefighters and vehicle and equipment maintenance employees employed by Fire Rescue Victoria and Country Fire Authority | 2.6.1.8.2 For occupational and surge forest firefighters employed by Forest Fire Management Victoria agencies

2.6.1.8.1 Career and volunteer firefighters and vehicle and equipment maintenance employees employed by Fire Rescue Victoria and Country Fire Authority

On 3 July 2019, the Firefighters’ Presumptive Rights Compensation and Fire Services Legislation Amendment Act 2019 (the Presumptive Rights Act) commenced operation.

The Presumptive Rights Act provides a rebuttable presumption to claim compensation under the Workplace Injury Rehabilitation and Compensation Act 2013(WIRC Act Workplace Injury Rehabilitation & Compensation Act 2013) for career and volunteer firefighters and vehicle and equipment maintenance employees who have been diagnosed with one of 15 specified cancers and have been employed or served for the respective qualifying period.

The 15 specified cancers and associated qualifying periods are outlined in the Table in Schedule 1 of the Presumptive Rights Act:

Column 1 - Disease Column 2 - Qualifying period
Primary site oesophageal cancer 25 years
Multiple myeloma 15 years
Primary non-Hodgkins lymphoma 15 years
Primary site bladder cancer 15 years
Primary site colorectal cancer 15 years
Primary site kidney cancer 15 years
Primary site prostate cancer 15 years
Primary site ureter cancer 15 years
Primary site breast cancer 10 years
Primary site cervical cancer 10 years
Primary site ovarian cancer 10 years
Primary site testicular cancer 10 years
Primary site uterine cancer 10 years
Primary leukemia 5 years
Primary site bran cancer 5 years

The presumed entitlement to compensation may be rebutted if there is evidence that the relevant cancer is not due to the nature of the worker's service as a firefighter.

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Definition of firefighter and vehicle and equipment maintenance employee for the purpose of the Presumptive Rights Act

The Presumptive Rights Act covers firefighters and vehicle equipment maintenance employees employed by the Metropolitan Fire Brigade or the Country Fire Authority, or by predecessor organisations under the Country Fire Authority Act 1958 or Metropolitan Fire Brigades Act 1958.

The definition of firefighter and vehicle and equipment maintenance employee applies to persons who fall within the Presumptive Rights Act’s definition of career firefighter or volunteer firefighter or vehicle and equipment maintenance employee.

Career firefighter means a person who is or was employed by a fire service as a firefighter in a role in which firefighting duties are or were a substantial portion.

Volunteer firefighter means a person who performs or has performed firefighting duties, in a role in which firefighting duties are or were a substantial portion, and who receives or received no remuneration for the performance of those duties.

Firefighting for the purpose of these definitions means exposure to the hazards of a fire scheme, including extinguishing, controlling or preventing the spread of fires.

Vehicle and equipment maintenance employee (VEM) means a person who is or was employed in duties involving the mechanical, auto-electrical, or fitting and turning maintenance and repair of firefighting vehicles and equipment.

Presumptive entitlement for career and volunteer firefighters and vehicle and equipment maintenance eployees (Part 2, Divisions 2, 3 and 3A of the Presumptive Rights Act)

Under the Presumptive Rights Act, if a firefighter or vehicle and equipment maintenance employee (VEM) satisfies the presumption under Division 2, 3, 3A, 3B or 4 (respectively), their disease is taken to be an injury within the meaning of the WIRC Act.

Under Divisions 2, 3 and 3A of the Presumptive Rights Act, an injury to a firefighter or VEM is presumed to be due to the nature of their employment as a firefighter or VEM if –

  1. the injury

    i. is a disease referred to in column 1 of the Table in Schedule 1

    ii. occurs on or after 1 June 2016

  2. the injury occurs during a period in which:
    • for career firefighters, the worker is employed as a career firefighter or within the 10 year period after the worker ceases to be employed or served as a firefighter; or
    • for volunteer firefighters, the volunteer served as a firefighter or within the 10 year period after the volunteer firefighter ceases to serve as a firefighter; or

    • for vehicle and equipment maintenance employees, the worker is employed as a VEM or within the 10 year period after the worker ceases to be employed as a VEM; and

  3. before the date on which the injury that is a disease referred to in column 1 of the Table in Schedule 1 occurred the worker is or was employed, or served as a firefighter or VEM, for at least the qualifying period specified in column 2 of that Table opposite the disease; and

  4. if the worker is a volunteer firefighter, the worker must have attended fires to the extent reasonably necessary to fulfill their duties as a firefighter. The Authority, in determining whether this requirement has been met, must seek an expert opinion from the Advisory Committee

  5. if the worker is a VEM, the worker must have attended fires to the extent reasonably necessary to fulfill the purpose of their employment as a VEM. The Authority, in determining whether this requirement has been met, must seek an expert opinion from the Advisory Committee

If a career or volunteer firefighter or VEM suffers an injury that is a disease specified in Schedule 1 of the Act, the injury is to be taken to have occurred on the day on which the worker –

  1. is first diagnosed as suffering from the disease; or
  2. dies by reason of the disease

whichever occurs first.

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Qualifying Period (Part 2, Division 3)

For the purposes of determining whether a career or volunteer firefighter or VEM has met the qualifying period requirement, multiple different periods of employment as a career firefighter, VEM, forest firefighter or service as a volunteer firefighter may be combined. However, concurrent periods of employment or service may not be counted twice.

Application for special consideration (Part 2, Division 4)

The Presumptive Rights Act establishes a special consideration process for firefighters or VEM who have an injury that is a cancer referred to in Schedule 1, but who do not have a presumptive entitlement because they do not meet the relevant qualifying period.

In order to qualify for the presumptive entitlement under Division 4, the firefighter must prove that they have had an exceptional exposure event in a firefighting capacity. For a VEM, in order to qualify for the presumptive entitlement under Division 4, the VEM must prove that they have had an exceptional exposure event in the course of attending a fire to repair and maintain firefighting vehicles and equipment. The Agent, in determining whether this requirement has been met, must seek an expert opinion from the Advisory Committee.

An application for special consideration must be in writing and include any relevant supporting information.

An application for special consideration can be made:

  1. at the same time as the firefighter or VEM submits their claim;
  2. during the period in which their claim is being determined; or
  3. within 60 days after their claim has been rejected.

An application for special consideration can only be considered by the Advisory Committee if the firefighter’s or VEM's claim under the WIRC Act has been rejected.

Advisory Committee

The Agent is to use the Referral to Advisory Committee (Presumptive Legislation) form when referring matters to the Advisory Committee.

The Advisory Committee must provide an expert opinion on:

  1. whether a volunteer firefighter or VEM has attended fires to the extent reasonably necessary to fulfil the purposes of service as firefighter or VEM within 10 days after receiving the request from the Agent; and
  2. whether a firefighter or VEM has attended an exceptional exposure event within 60 days after receiving the request from the Agent.

The form of the expert opinion must be approved by the Authority.

Under the Presumptive Rights Act, the Agent must have regard to the expert opinion provided by the Advisory Committee, but it is not required to make a determination that is consistent with the expert opinion.

Within the 10 day period the Advisory Committee may request further information from the agent, the worker and/or the employer to assist it to form its expert opinion.

Calculating PIAWE for volunteer firefighters

Refer to section 18 of the Presumptive Rights Act.

Section 18(6) establishes a mechanism for determining the pre-injury average weekly earnings PIAWE of a volunteer firefighter for the purpose of the WIRC Act. This is because the WIRC Act does not provide for the PIAWE calculation of volunteers.

For volunteer firefighters who perform work for an employer during the relevant period before the injury, their pre-injury average weekly earnings are to be calculated in accordance with the WIRC Act. See: 3.1 PIAWE

Calculating PIAWE for self employed volunteer firefighters

In calculating the pre-injury earnings of self-employed volunteers, the CFA and the Agent need to adopt a different approach to that within the WIRC Act. This is because section 18(6)(b) of the Presumptive Rights Act provides that PIAWE should be calculated in any manner that most appropriately compensates the self-employed volunteer for loss of earning capacity. Although this is inconsistent with the WIRC Act which does not consider loss of earning capacity in reference to PIAWE and does not otherwise address PIAWE for voluinteers, section 5(2) of the Presumptive Rights Act provides that it prevails over the WIRC Act to the extent of any inconsistency.

The standard method for calculating PIAWE of self-employed persons involves the deduction of business expenses from the profits of the business. The result represents the person’s actual earnings. Often, actual earnings will appropriately reflect earning capacity.

However, the standard method will not always appropriately compensate the loss of earning capacity. In those instances, PIAWE should be based on the value of the work performed rather than actual earnings for the self-employed volunteer. Examples of instances where this would occur include:

  • profit levels are lower than usual

  • business expenses are higher than usual

  • the business has been running at a loss.

The circumstances of each case must be considered to determine the most appropriate way to determine PIAWE. In doing so, the CFA or Agent should consider:

  • the information supplied by or on behalf of the volunteer including business records, profit and loss statements, and business and personal taxation returns. Note: obtaining these documents for the three-year period pre-injury will assist in ascertaining whether profit or expenses levels are lower than usual in the year prior to injury; and

  • any or all of the following:

    • the average weekly earnings payable under a relevant industrial award to a person with the volunteer’s skills, qualifications and experience

    • the average weekly earnings of a comparable person as published by the Australian Bureau of Statistics

    • the reasonable cost of paying a person to perform the work the volunteer is unable to perform

    • other relevant matters.

The phrase “other relevant matters” is extremely broad and implies a discretionary power to investigate and consider all things necessary in order to accurately determine a self-employed volunteer’s loss of earning capacity, and thus PIAWE.

However, this should not include matters that are not incidental to the procuring or earning of an income by way of physical or mental exertion. For example, regard should not be given to:

  • capital items such as the depreciation of plant machinery

  • loss of business or potential loss of business due to the business being inactive as a result of incapacity

  • loss of chance such as a lost opportunity to sell the business or items from the business in future or a depreciation in the value of the business

  • rent

  • dividends.

Previously rejected claims

If a claim for an injury occurring on or after 1 June 2016 has been made prior to the commencement of the Act and was rejected by the Agent, the worker is entitled to make a new claim for compensation for the same injury.

2.6.1.8.2 For occupational and surge forest firefighters employed by Forest Fire Management Victoria agencies

On 14 September 2022, the Forest Amendment (Forest Firefighters Presumptive Rights Compensation) Act 2021 (the Forests Presumptive Rights Act) commenced operation.

The Forests Presumptive Rights Act inserts provisions into the Forests Act 1958 which provide a rebuttable presumption to claim compensation under the Workplace Injury Rehabilitation and Compensation Act 2013 (WIRC Act) for occupational and surge forest firefighters who have been diagnosed with one of 15 specified cancers and have been employed or served for the respective qualifying period.

The 15 specified cancers and associated qualifying periods are outlined in the Table in Schedule 3 of the Forests Act 1958:

Column 1 - Disease Column 2 - Qualifying period
Primary site oesophageal cancer 25 years
Multiple myeloma 15 years
Primary non-Hodgkins lymphoma 15 years
Primary site bladder cancer 15 years
Primary site colorectal cancer 15 years
Primary site kidney cancer 15 years
Primary site prostate cancer 15 years
Primary site ureter cancer 15 years
Primary site breast cancer 10 years
Primary site cervical cancer 10 years
Primary site ovarian cancer 10 years
Primary site testicular cancer 10 years
Primary site uterine cancer 10 years
Primary leukemia 5 years
Primary site bran cancer 5 years

The presumed entitlement to compensation may be rebutted if there is evidence that the relevant cancer is not due to the nature of the worker's service as a forest firefighter.

Definition of forest firefighter for the purpose of the Forests Presumptive Rights Act

The Forests Presumptive Rights Act covers forest firefighters employed by DELWP, Melbourne Water, Parks Victoria, VicForests and other relevant Victorian Government agencies.

The definition of forest firefighter applies to persons who fall within the Forests Presumptive Rights Act’s definition of occupational forest firefighter or surge forest firefighter.

Occupational forest firefighter means a person who is or was employed by one of the employers outlined above as a firefighter in a role in which firefighting duties are or were a substantial portion.

Surge forest firefighter means a person who is or was employed by one of the employers outlined above in a non-firefighting role, but elect to take on fire and emergency management responsibilities as part of their department or agency’s surge response.

Firefighting for the purpose of these definitions means exposure to the hazards of a fire scheme, including extinguishing, controlling or preventing the spread of fires.

Definition of forest firefighter for the purpose of the Forests Presumptive Rights Act

Under the Forests Presumptive Rights Act, if an occupational or surge forest firefighter satisfies the presumption under sections 72E or 72H (respectively) of the Forests Act 1958 (Forest Act) their disease is taken to be an injury within the meaning of the WIRC Act.

Under sections 72E and 72H of the Forests Act, an injury to a forest firefighter is presumed to be due to the nature of their employment as a forest firefighter if –

  1. the injury

    i. is a disease referred to in column 1 of the table in the Third Schedule; and

    ii. occurs on or after 1 June 2016; and

  2. the injury occurs during a period in which:

    • for occupational forest firefighters, the worker is employed as an occupational forest firefighter or within the 10 year period after the worker ceases to be employed or served as a firefighter; or

    • for surge forest firefighters, the volunteer served as a surge forest firefighter or within the 10 year period after the volunteer firefighter ceases to serve as a firefighter; and

  3. before the date on which the injury that is a disease referred to in column 1 of the table in the Third Schedule occurred, the worker is or was employed, or served as a firefighter, for at least the qualifying period specified in column 2 of that table opposite the disease; and

  4. the worker attended fires to the extent reasonably necessary to fulfil the purpose of their service as a firefighter-

in the absence of proof to the contrary.

If an occupational or surge forest firefighter suffers an injury that is a disease specified in the Third Schedule of the Forests Act, the injury is to be taken to have occurred on the day on which the worker –

  1. is first diagnosed as suffering from the disease; or

  2. dies by reason of the disease

whichever occurs first.

Qualifying Period (Section 72K of the Forests Act)

For the purposes of determining whether an occupational or surge forest firefighter has met the qualifying period requirement, multiple different periods of employment as a career firefighter, occupational forest firefighter, surge forest firefighter or service as a volunteer firefighter may be combined. However, concurrent periods of employment or service may not be counted twice.

Application for special consideration (Section 72L of the Forests Act)

The Forests Act establishes a special consideration process for forest firefighters who have an injury that is a cancer referred to in the Third Schedule, but who do not have a presumptive entitlement because they do not meet the relevant qualifying period.

In order to qualify for the presumptive entitlement under Section 72L, the forest firefighter must prove that they have had an exceptional exposure event in a firefighting capacity. The Agent, in determining whether this requirement has been met, must seek an expert opinion from the Advisory Committee.

An application for special consideration must be in writing and include any relevant supporting information.

An application for special consideration can be made:

  1. at the same time as the forest firefighter submits their claim;

  2. during the period in which their claim is being determined; or

  3. within 60 days after their claim has been rejected.

An application for special consideration can only be considered by the Advisory Committee if the forest firefighter’s claim under the WIRC Act has been rejected.

Advisory Committee

The Agent is to use the Referral to Advisory Committee form when referring matters to the Advisory Committee.

The Advisory Committee must provide an expert opinion on:

  1. whether a forest firefighter has attended fires to the extent reasonably necessary to fulfil the purposes of service as a forest firefighter within 10 days after receiving the request from the Agent; and

  2. whether a forest firefighter has attended an exceptional exposure event within 60 days after receiving the request from the Agent.

The form of the expert opinion must be approved by the Authority.

Under the Forests Act, the Agent must have regard to the expert opinion provided by the Advisory Committee, but it is not required to make a determination that is consistent with the expert opinion.

Within the 10 day period the Advisory Committee may request further information from the agent, the worker and/or the employer to assist it to form its expert opinion.

 

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