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Two Years After Presumption Law, Muni Comp Costs Are Dropping

By William Rabb (Reporter)

Monday, January 7, 2019 | 1587 | 0 | 54 min read

Three years ago, Ohio municipalities warned that a firefighters’ cancer presumption bill would burn a hole in their budgets as workers’ compensation premiums spiked because of claims that had never before been proven to be work-related.

This month, though, local governments are breathing a little easier after a 12% reduction in premiums for 2019 took effect Tuesday. It’s the second-largest rate cut for public employers in 30 years, according to the state Bureau of Workers’ Compensation.

“I guess that sort of indicates that rates aren’t going up, if we’re getting that discount,” said Kent Scarrett, executive director of the Ohio Municipal League, which lobbied against Senate Bill 27 in 2016. The bill became law in April 2017 and is now part of the state’s workers’ compensation statutes.

“I really haven’t heard that the law has had an impact,” Scarrett said.

But an actuarial analysis by the Bureau of Workers’ Compensation shows that the premium cut for local governments this year would have been slightly deeper without the effect of the presumption law.

Cities' anticipated base rate without the presumption law would have dropped 15.3% this year. With the cancer presumption adjustment, the rate dropped 14.2%.

Townships' anticipated rate would have declined 21.6%. With the cancer law, the rates dropped 18.9%, the analysis shows.

Two factors seem to be keeping claims costs at a minimum — for now. And how those factors change in coming years could affect municipalities’ compensation rates for quite some time.

For starters, costs have been under control over the last 20 months because many firefighter claims are not actually being paid benefits, firefighters and their lawyers say.

While firefighters had hoped that the presumption law would make it easy to win benefits for themselves and their loved ones, many in Ohio, as in some other states with presumption laws, are finding that municipalities are fighting the claims in court, even without medical evidence to rebut them.

“It’s very disheartening and it’s very disappointing,” said Karen Turano, a Columbus attorney who has represented more than 20 firefighters in cancer claims.

Data from the BWC, released Friday, shows that 102 firefighter cancer claims have been filed since the law took effect, and 76 were deemed by the BWC to be compensable or to have met the presumption requirements.

Local governments appealed 48 of those.

That’s more firefighter-friendly than some other states with presumption laws. In Texas, for example, the state reported that 90% of first-responder cancer claims between 2012 and 2017 were denied by insurers. In Ohio, the bureau is the insurer, and it makes the decision because Ohio has a state-run workers’ compensation system.

“You definitely can’t just waltz in there and win a cancer claim,” said Rodger Sansom, secretary/treasurer of the Ohio State Firefighters Association, which represents mostly volunteer fire departments.

One reason claims are still difficult to prove, despite the presumption law, is that the Ohio law stipulates that claims can be rebutted if evidence shows that the worker is a tobacco user or that he or she was not exposed to a known carcinogen. That means fire workers need to track their deployments and exposure to suspected toxins, daily, for years.

That’s difficult to remember and almost requires that all firefighters keep a notebook of their experiences.

“We tell them to do that, but I don’t know how many actually keep one,” Sansom said.

Turano said that some cities appear to appeal the claims simply to drag out the process and discourage ailing claimants. In several cases, the municipality offered no medical evidence or testimony to rebut the claim, yet the case was appealed.

In another claim, a municipality’s doctor relied on a genetic test to argue that the cancer was not work-related. But that type of test is recognized only as a way to determine the type of treatment, not causation, Turano said.

At least one client with cancer died while his claim was on appeal, she said.

“It’s sad because these aren’t minor injuries,” Turano said. “A lot of these are life-ending illnesses.”

Several municipalities and their defense attorneys could not be reached for comment Friday.

On the bright side, firefighters say cancer claims may be less common than expected because of a heightened emphasis on safety and cancer prevention by the BWC and by fire departments themselves.

“Back in the 1990s, when I started out, it was almost a badge of honor to have dirty gear,” said Doug Burton, a Cincinnati firefighter and an official with the International Association of Fire Fighters.

Now, fire districts everywhere understand that toxic compounds in clothing and gear can accumulate and cause secondary exposure, and most departments have educated firefighters on the need to keep gear clean, Burton said.

To that end, the BWC last week announced $693,000 in grants to 64 Ohio fire departments for the purchase of protective hoods, specialized gloves and extractors — industrial-size washing machines that can remove soot and chemicals from gear.

The grants, part of the bureau’s rebate program that returns surplus premiums to employers statewide, was not required by the 2017 presumption law. But it was begun about the same time and so far has provided 646 grants to fire departments, totaling $6.6 million, said BWC spokesperson Melissa Vince.

The program matches local funding five to one, up to $15,000 per department. No local funding is required for employers with less than $500,000 in annual payroll, the bureau said.

In November, for example, the Winchester Community Fire Department in Adams County received $15,000 to purchase an extractor, 31 protective hoods and sets of gloves. The City of Dayton won $15,000 to purchase 257 hoods for firefighters.

Burton said the grants are very helpful, because an extractor can cost $5,000 and requires that the fire department purchase an extra set of gear for each firefighter to use while the other set is being cleaned.

“It’s definitely a good thing, and it’s nice to see that the bureau has recognized that cancer is a problem and that prevention is important,” he said.

Some cities and towns have not been as generous, Burton said.

“It’s been a mixed bag so far,” he said. “Some cities aren’t fighting the claims. Others fight them all the way to the Court of Common Pleas.”

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