A court ruling in Italy around cellphone usage and brain tumours might seem a distant concern for Canadian employers, but it’s something to take note of, according to legal experts.
The case involved a worker who used his cellphone for an average of six hours per day, for 12 years, because his job demanded it. He claimed a benign brain tumour near his left ear had been caused by the mobile phone, according to media reports.
The Italian agency that insures work-related health risks rejected his request, saying there was not enough evidence linking mobile phone use to brain cancer. But the case reached Italy’s high court, which ruled in favour of the employee in October.
While the ruling has no binding authority in Canada, it’s not unusual for Canadian courts or tribunals to look to what other courts have done, said Ben Ratelband, partner at law firm McCarthy Tétrault in Toronto.
“Typically, our courts would look to the U.S., Britain and other commonwealth jurisdictions, Australia and so on, but that doesn’t mean that it’s irrelevant. The fact that you’ve got a higher level court in a first world country drawing this kind of conclusion is at least of interest, and if there was a case that ever proceeded here, I’m sure it’s something plaintiff’s counsel would be referring to,” he said.
“If there are other credible tribunals like this court in Italy that come to these conclusions and if somebody can bring that same medical evidence forward in a proceeding here, certainly there’s a chance that it could be upheld.”
At this point, there is no strong proof of any link between cellphones and cancer but there are a couple of flags that indicate we should keep an eye on it and do more studies, said Jack Siemiatycki, professor of epidemiology at the University of Montreal.
“If I were an employer telling someone they have to use their cellphone for work and, 30 years later, they get a brain tumour, I might have some regrets about having told them to do that, not because I think the cellphone would be responsible for the tumour but because there may be some lawsuits involved.”
Employers don’t necessarily have to wait for a clear-cut connection established in science, said Dan Bokenfohr, a partner at law firm McLennan Ross in Edmonton.
“There’s a risk there or potential risk and there’s a growing body of scientific evidence to say this should be a concern. I would say employers should take this into account the same as any other potential workplace hazard and should be putting measures in place where appropriate.”
However, many employers in Canada would be in a workers’ compensation scheme, so they wouldn’t have to worry about individual claims coming against them by employees, he said. And causation is still an issue not only from a broader standpoint as to whether a reliable connection can be made between cellphone use and cancer, but also because “there needs to be causation in a specific sense,” said Bokenfohr.
The Italian ruling was a very extreme case involving a man using a cellphone for six hours per day, “so that’s not the type of usage you would see in the average Canadian worker,” said Bokenfohr.
In Ontario, if somebody was claiming a work-related occupational illness or injury, she would have to demonstrate, as a civil standard of proof on a balance of probabilities, this harm arose from use of cellphones and it arose through work as well, said Ratelband.
“Both of which are significant hurdles for somebody to get over,” he said, adding he’s not aware of any claims related to cellphone use.
All cellphones offered for sale in Canada must meet strict safety regulations as set out by the federal government, according to Ashlee Smith, communications manager at the Canadian Wireless Telecommunications Association in Ottawa.
“These safety regulations have been developed based on years of scientific research by respected international scientific organizations. That research has not demonstrated a risk to human health from the use of cellphones when operated in accordance with the safety standards that the industry must adhere to.”
The Italian judge relied heavily on research done by a group of researchers at the University of Örebro in Sweden, led by Lennart Hardell. Their 2007 study found a consistent pattern of increased risk for cancer from use of mobile phones.
The workers’ compensation group in Italy, on the other hand, cited the findings of a study released by the World Health Organization in 2010 that found there was no elevated risk for cancer except for heavy users.
It is very difficult to do this kind of research for a variety of reasons, said Siemiatycki, citing as one example the interference of “so-called ethics committees that regulate how this kind of research can be done.”
In any question relating lifestyle or environment to disease, there are also methodological issues to deal with, he said.
“There are difficult problems of how to assess people’s exposure over their lifetime to cellphones, for example, and how to relate a particular type of tumour they have.”
It’s when we see the same results occurring in multiple studies by different investigators using different methods that we start to gain confidence in the results, said Siemiatycki, citing as an example the research around cigarette smoke and cancer in the 1950s.
A lot of these things take many years before we have real answers and there are many differences of opinion, said Ron Petersen, a partner at law firm McMillan in Ottawa.
“It often is like that because this is leading edge sort of work.”
Considering the continued uncertainty, how should employers be responding when it comes to using cellphones for work?
“Unless you have a pretty clear indication as to exactly what the risk is medically, it’s difficult to know what preventative measures to take,” said Ratelband. “At this stage, it’s probably premature for employers to be immediately thinking about what preventative measures they should take.”
It is still early days but cellphone use in cars has been banned in many jurisdictions for safety reasons, said Petersen. And a lawsuit in Illinois, in which a husband and wife are suing cellphone manufacturers for his brain tumour, could be indicative.
“A lot of the stuff that American lawyers do is leading edge stuff. Usually they’re right,” said Petersen, citing as examples car safety issues such as airbags and seatbelts.
But while an employer can try to protect itself by having policies around cellphone use, that could also be controversial.
“Are we then giving credibility to something that may not be a problem?” he said. “Are we creating a potential problem for employers when the government is telling us that it’s safe?”
If employees aren’t going to be using landlines, or don’t have that option, and they are going to be talking on a cellphone for hours each day, it’s a minimal expense for an employer to make resources available to let them work with Bluetooth technology, said Bokenfohr.
“I would certainly say employers should take note of this as a potential hazard and it’s something to keep an eye on,” he said. “I wouldn’t be worried as an employer about causing fear — they can simply say, ‘This is something that is precautionary and just makes good sense.’”
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