Wednesday, September 3, 2014

Cancer Presumptions for Firefighters

Workcompcentral reported in August that firefighters in Idaho will pursue presumption legislation again in 2015. Specifically, the subject is cancer. It reports that a cancer presumption bill cleared the state Senate there during the last legislative session, but failed to gain the support of the House. That bill, Senate Bill 1273, would have created a presumption of compensability of "several types of cancer."

SB 1273 lists the following conditions as grounds for invocation of the rebutable presumption for firefighters:  

(i) Brain cancer after ten (10) years; (ii) Bladder cancer after twelve(12)years; (iii) Kidney cancer after fifteen (15) years; (iv) Colorectal cancer after ten (10) years; (v) Non-Hodgkin's lymphoma after fifteen (15) years;(vi) Leukemia after five (5) years; (vii) Ureter cancer after twelve (12) years; (viii) Testicular cancer after five (5) years if diagnosed before the age of forty (40) years with no evidence of anabolic steroids or human growth hormone use; (ix) Breast cancer after five (5) years if diagnosed before the age of forty (40) years without a breast cancer or breast cancer genetic predisposition to breast cancer; (x) Esophageal cancer after ten (10) years; and (xi) Multiple myeloma after fifteen (15) years. 

Rob Shoplock, Vice President of Idaho's Professional Firefighters Union, told Workcompcentral that the burden of proof for firefighters with cancer is too imposing. He says this supports the imposition of a presumption, noting "when it comes to cancers, trying to identify what day or what fire you may have gotten that exposure . . . that's really the uphill battle that we fight." Because of the challenge of this proof, the firefighters contend that a statutory presumption for cancer is warranted. 

Presumptions for firefighters and other first-responders are not something new. Florida has first-responder presumptions for cardiac issues. Multiple states have presumptions for cancer. A great dissertation on the subject was published by the National Association of Workers' Compensation Judiciary as part of their Comparative Law Project. 

According to the NAWCJ, thirty-three states have such presumptions: Alabama, Alaska, Arizona, California, Colorado, Connecticut, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Massachusetts, Maryland, Minnesota, Missouri, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Dakota, Oklahoma, Oregon, Pennsylvania, South Dakota, Tennessee, Texas, Vermont, Washington and Wisconsin. One of the great benefits of the NAWCJ, and the opportunities it affords for adjudicators to meet and interact with other adjudicators, is the chance to discuss distinctions and similarities of state workers' compensation laws and procedures. 

According to the NAWCJ study, presumptions for occupational disease have existed almost as long as workers' compensation has. The cancer presumption, according to this study and one court, "was enacted to relieve claimants from the nearly impossible burden of proving firefighting actually caused their disease." The argument in favor of such presumptions is essentially that firefighters and perhaps other first responders, go places the rest of us do not and would not (who rushes into a burning building?) and there they are exposed, at least potentially, to things which the rest of us generally are not. They argue that it is impractical or impossible to identify "the exposure" or even "the agent" when a diagnosis is made months or years thereafter, as similarly advocated by Mr. Shoplock.

The existence of cancer presumptions is also not new, and according to a 2012 article on WCI360, there is an "Ongoing Debate" on the subject. It is noted by critics that the scientific evidence does not support an increased rate of cancer in firefighters or other first responders to an extent that would justify presuming their cancer is work-related. One court noted, regarding a similar perception of cardiac presumptions, "the medical community disagrees as to the role of one's occupation in the development of these diseases." 

Of course, whether the evidence supports such presumptions or not is a topic for the legislative process. Subjected to the scrutiny of public debate, the majority of American states, listed above, have enacted these cancer presumptions. 

That "public policy" big picture is not one that adjudicators really view. I hear periodic complaints from attorneys about judges and their (purported lack of) common sense. Judges are not employed to make rulings using what they "know" about medicine or science or what "everybody knows," however. Judges are employed to use their skills to decide disputes, in which parties actively engage. 

That active engagement means those parties go out and discover the evidence to support their claims or defenses, prepare it, document it, and present it to the judge for consideration. This is the fundamental process of dispute resolution. I think the system and people are served through this due process in which the judge is brought the evidence, rules on the evidence, and follows the law. 

Idaho firefighters are not alone. In 2013, firefighters in Kentucky advocated for a cancer presumption. They claimed that the financial impact on the system would be minimal, citing an NCCI evaluation that concluded that "the premium paid for Kentucky Firefighters is less than .3% of the total premium in the state." They also cited a University of Cincinnati study on the relation between cancer and firefighting. They argue that this study supports a connection between firefighting and the occurrence of "brain, colon, non-Hodgkins Lymphoma, kidney, prostate, liver and multiple myloma." These were noted in a November 2013 workcompcentral article.

Pennsylvania is the most recent adopter; it enacted a cancer presumption in (2011). Thereafter, there were reports that insurance companies had begun to decline writing workers' compensation coverage for municipalities or other government entities that included fire departments. These unintended consequences of legislative change may perhaps be on the minds of legislators elsewhere, like Kentucky and Idaho, considering statutory amendments of their own.

There are costs with any benefit delivery process. These include the actual benefits, the delivery system and the dispute resolution system. Anytime the workers' compensation law is changed there are resolution costs, as uncertainties in the statutory language are tested by system constituents. Historically, major statutory revisions are followed by periods of significant litigation that tests and refines the revisions through interpretation. 

In an ideal world, any such additional costs in terms of dispute resolution would be short-lived following statutory change. Ambiguity or interpretation issues would be sorted, a solid foundation of decisional law would be published and the marketplace would proceed with the delivery or denial of benefits upon that foundation. There have been instances in which reform followed this path, but others in which litigation over nuance and interpretation have persisted long after a particular reform. 

As states grapple with the debate over presumptions in workers' compensation, long-term market effects will likely be considered. Notably, the short-term effect in Pennsylvania was some degree of market disruption. That is normal in statutory change. I would be curious what the long-term effects have been in these jurisdictions over the decades of experience, as decisional law has caught up and any ambiguities and interpretation issues have been adjudicated. 

No comments:

Post a Comment