Ex-workers taking hospital to Supreme Court over alleged cancer cluster

(Canadian OH&S News) — Three former employees of the Mission Memorial Hospital in Mission, B.C. are claiming that a laboratory in the workplace caused them to contract breast cancer — and their case is heading to the Supreme Court of Canada.

An investigation into the laboratory found that its rate of breast cancer was about eight times the rate for the overall British Columbia population, according to an April 20 press release from the National Union of Public and General Employees (NUPGE). The ex-employees — Katrina Hammer, Anne MacFarlane and Patricia Schmidt — initially brought claims to WorkSafeBC, which denied benefits to them. An appeal to the B.C. Workers’ Compensation Appeal Tribunal (WCAT) ruled in the workers’ favour, but subsequent appeals have brought the case to the Supreme Court.

Several employees in the lab contracted breast cancer between 1970 and 2004, according to Tonie Beharrell, a staff lawyer for the Health Sciences Association of B.C. who represents Hammer and MacFarlane.

“About seven lab workers during that time had contracted breast cancer, and by the time some of the later cases happened, they were kind of looking around and going, ‘Wow. This seems to be quite a high rate,’” said Beharrell.

The investigation report, issued in 2005, indicated a cancer cluster in the lab. “What it didn’t indicate was whether or not there was any specific workplace causation,” explained Beharrell. “And it was hindered by the fact that this was from 1970 onward, and documents from the early years were simply not available, whether they hadn’t been kept or had never existed. So in trying to determine what the causation might be, there were complications.”

Among the possible explanations suggested in the report: possible carcinogens in the regents and solutions that the employees had handled; a hospital incinerator with venting problems; that the diagnosed women all had genetic predispositions to cancer or were part of a high-risk group; or simply a statistical anomaly.

“The women who were, in fact, diagnosed with cancer have a range of risk factors and non-risk factors, and it doesn’t seem like there’s any significant similarity between them in that regard,” said Beharrell.

Fraser Health Authority, the organization that runs the hospital, declined to comment to COHSN due to the matter being before the courts.

After WCAT called the evidence in the workers’ case “sufficient to conclude it was as likely as not that some workplace exposure was of causative significance,” as quoted in the NUPGE release, Fraser brought the case to a judicial review with the B.C. Supreme Court, which concluded that there was no evidence that the cancer cases were work-related. Then a five-judge panel with the B.C. Court of Appeal voted three to two that there was no occupational causation.

“It’s not the shortest process in the world,” said Beharrell, referring to the appeal system.

Beharrell and two other lawyers representing the workers made an appearance at the Supreme Court of Canada on Jan. 14, to challenge the B.C. Supreme Court and Court of Appeal decisions.

“The scientists and physicians were weighing the evidence against the standard required to reach ‘scientific conclusions’ based on ‘scientific evidence,’” read NUPGE’s statement in the Court, as quoted in the release. “That is a significantly higher test than that required in the administration of the workers’ compensation scheme for the adjudication of workplace disease claims.

“Requiring the appellants to meet that test would fundamentally undermine the purpose of that scheme.”