Langham: Firefighters Seek to Change Cancer Presumption in Workers' Compensation in 2016

Thursday, February 25, 2016 | 0

Firefighters have been very successful over the last 40 years convincing legislators that the health risks they face are different from the health risks of others. In workers' compensation statutes, and sometimes in free-standing ancillary statutes, firefighters and other first responders have recently enjoyed presumptions regarding heart disease and related maladies, often referred to as "heart-lung bills."

These are of interest to the system for a variety of reasons. Some argue that the relevance of such presumptions will decline as the prevalence of human emergency workers declines. Some think that the robotic future of tomorrow will greatly decrease the need for people to enter burning or otherwise unstable buildings. That "what about tomorrow?" is a different debate, however. 

According to NCCI, the idea of a heart-lung presumption arose in the 1970s. It notes that "many states" now have such presumptions. In an excellent analysis, Hon. David Torry of Pennsylvania outlines the existence of another presumption, the cancer presumption. This is a newer idea, which started in the 1980s in California, and it is gaining acceptance. According to Judge Torrey, 33 states now have such presumptions. 

At least five states are debating the compensability of firefighter cancer in some manner this spring. Several are focused on the cancer presumption specifically.

WSAZ TV reported this year that West Virginia is considering codifying such a presumption in 2016. It contends that firefighters are exposed to hazards that "can cause long-term problems like cancer." The station cites firefighters' complaint that "over the years the job has become more dangerous ... your furniture, plastics, different products being manufactured that increases the risk of different types of cancer causing agents," according to some interviewed.

The station reports that efforts in West Virginia have been ongoing for 10 years regarding such a presumption. And, in the "last five years of their fight, the Centers for Disease Control has been doing research that shows lunch (sic: lung?) cancer and leukemia mortality risks were modestly increasing with firefighter exposures." There is no quantification provided as to what a "modest" increase would be. 

West Virginia is not alone. In February, WorkCompCentral reported that Georgia is working on House Bill 216. This would add Cancer, Hepatitis, and AIDS to a list of occupational diseases that are compensable, if the firefighter "passed a physical examination and completed at least three years of service." This appears to be less a presumption bill than a bill providing special dispensation for firefighters regarding proving that an "ordinary disease of life" is compensable for a special class of workers, firefighters.  

David Langham

Florida is also considering a presumption during the 2016 legislative session. Committee Substitute (CS) for Senate Bill (SB) 456 would establish a presumption for certain firefighters (full-time) who suffer "multiple myloma, non-Hodgkins lymphoma, prostate cancer or testicular cancer."  There are limitations, such as a five-year period of employment, and an absence of other employment in fields or occupations shown to be associated with higher risk of these conditions.

Florida House Bill (HB) 345 is noted by the legislature to be "similar" to SB 456. The language in that bill also appears limited to full-time firefighters, but seems broader regarding the disease. It provides "a condition or impairment" that is "caused by cancer" and results in "impairment or death" is presumed compensable. 

USA Today claims Florida lags behind. This story claims that 34 states now have such laws. Noting that Florida law "presume firefighters' heart and lung diseases are caused by their profession," it says there is "none that assumes their job requirements can cause cancer." The paper reports on anecdotal instances of firefighters who have been diagnosed with cancer, and details their stories. 

The paper concludes that "studies on the connection between firefighting back up what Southwest Florida firefighters say is becoming more and more obvious: that fighting fires could easily mean fighting cancer at some point." No citations to such studies are provided, nor is there any discussion of whether science is unanimous in conclusions about firefighters and cancer. 

Florida's 2016 SB456 and HB345 are a topic of discussion this legislative session. The Florida League of Cities has issued an analysis of the effects it perceives if these bills are passed. It is fair to say that in Florida there is a lively debate as to whether such a presumption is appropriate, and if so what limitations or constraints would be appropriately included. Whether any version of a cancer presumption will pass in Florida this year remains to be seen. The legislative session ends March 11, 2016. 

As with virtually all legislative actions, there is discussion of what costs would be associated with passage. There can be no debate of the existence of cost. Medical care is expensive in America; there is much debate regarding why, but it is expensive. When the human body suffers injury or illness, there are expenses in time and money. This is a virtual certainty. The debate is therefore not about whether there will be cost, but who will pay that cost. It may be taxpayers through workers' compensation or group health insurance; it may be the individual with the medical condition. 

Connecticut is also considering a presumption, according to the Meriden Record Journal. It contends that occupational diseases are not compensable in Connecticut generally, saying "due to the lack of a legal presumption in the state, volunteer or career firefighters temporarily or permanently disabled due to cancer aren’t entitled to workers’ compensation benefits." Whether the current effort in Connecticut is more like Georgia's compensability bill or Florida's presumption bills is not clear.  

According to KTVB, Idaho is also considering a presumption for "certain types of cancer." Firefighters there say "research has shown the cancers affect firefighters more because of their occupation." An interesting way to phrase the issue. It seems that cancer likely affects all humans similarly, but perhaps they mean that firefighters are more likely be diagnosed with cancers because of their occupation? The Idaho firefighters are described as being more optimistic of passage of a presumption this year. The article notes that some may be "concerned about the possible burden it would put on taxpayers."

The debate in most jurisdictions is not about whether particular diseases should be compensable, but about who has the burden of proof regarding the compensability. In most instances, American law puts the burden on the party seeking something. For example, in a criminal instance, the State has to prove guilt. An accused is "presumed innocent," an oft-mentioned maxim familiar from decades of American television. Presumed merely means that this condition or state remains true until proven otherwise. The accused is presumed innocent until proven guilty.

The firefighter presumption is similar. As the law exists generally, injuries and illnesses are essentially presumed to be unrelated to work, and the employee seeking benefits will have to prove the injury or illness is related to work. A presumption like those being discussed in Florida, Idaho and West Virginia merely changes this to presume a particular illness or injury is related to work, unless the employer proves that it is not. 

The concept of a presumption does not change the compensability of accidents or injuries. A presumption of compensability merely changes "who" must prove "what" in the process of a claim. 

So, it appears from this coverage that Connecticut does not provide for occupational diseases to be compensable. Thus, the legislation there to compensate occupational disease generally, along with the presumption discussed, is perhaps more similar to the current effort in Georgia, a broader effort than the presumption debate underway in Florida, Idaho, and West Virginia this year. 

All of these debates are interesting. Some question why firefighters, and not others who work in fields with similar risks, are the focus of such legislative efforts. I heard a speaker once describe a hypothetical fire scenario in which there was risk from electricity. She described that as the premises smoldered, after the fire was controlled, an electrician was tasked with various responsibilities in making the scene safe. She conjectured that the electrician and a firefighter next to her would each suffer similar exposures at that scene. She hypothesized that each of them might later suffer lung or heart damage or cancer at some point and questioned why the law would treat that firefighter and electrician differently. 

Various legislatures have codified these distinctions across the country. Through their processes of hearings and testimony, studies and evidence, they have reached conclusions in a variety of legislative settings. For 2016, we watch and wait to see how Connecticut, Florida, Georgia, Idaho and West Virginia proceed. 

David Langham writes the blog Florida Workers' Comp Adjudication. He is the Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims and Division of Administrative Hearings. Contact him at david_langham@doah.state.fl.us