Tuesday, August 16, 2016

Cancer Presumption in Australia

An opinion piece from Australia recently caught my attention. I have spent a fair amount of time studying workers' compensation presumptions over the years. There is a push recently (some will quibble with how recently, say the last 30 years) for first responder's cancer to be presumed work related and covered by workers' compensation. The National Association of Workers' Compensation Judiciary addressed the subject in its Comparative Law Project, spearheaded by Judge David Torrey of Pennsylvania. 

That summary provides a reasonably comprehensive look at the existing presumptions as of 2013. There has been more discussion of the topic since then. Several states considered enacting cancer presumptions for firefighters in 2016. It is a subject that has therefore been reasonably common in our news and so the Australian story was notable. 

The title of the July 8, 2016 article was somewhat pejorative Insurers are there to take your money and then they employ people to make sure you don’t get it. It ran in the Northern Territory (NT) News.

There, a "71-YEAR-OLD firefighter on the brink of retirement" complains that the existence of a cancer presumption in the Northern Territory has not produced results for him in the manner he expected. His experience led him to complain that insurance companies "are there to take your money and then they employ people to make sure you don’t get it." The story says that this is a sentiment or conclusion shared by a significant population of people. 

Apparently, this firefighter is a bit of a legend, up north, but down under. He has worked in the profession for 49 years. How many people do you know that have worked that many years in any profession? He has been a firefighter longer than a fair number of my readers have been alive. 

In 2013, he was diagnosed with bladder cancer. This is said to have been a "direct result of almost half a century of exposure to toxic hydrocarbons in fire fumes." He describes "fighting grass fires back in the 60s and 70s with nothing more than a T-shirt and cotton trousers." He says that "Breathing apparatus was nothing more than a bit of silk cloth to cover his nose and mouth." There was not, apparently, much focus on workplace safety back then. 

So, following his diagnosis in 2013. He sought a determination that his disease was compensable, but the employer and carrier defended the causation. The law did not afford him any presumption and so he struggled to prove that the workplace exposures resulted in his condition. The writer says "it was a case of Jock having the arduous task of proving he got cancer on the job, rather than TIO having to show he didn’t." The consensus seems to be that it was a compensability claim in which such proof was either impractical or impossible. Possibly the science does not exists to make such a demonstration. 

The article makes some inconsistent points on this issue. It states that before the presumption the firefighter was fighting for a claim that was hopeless, saying "It was never a claim that was going to be won." Despite that characterization, the author says that this is a "disease medical specialists have consistently linked to his employment." So there was apparently scientific proof in this specific instance. Additionally, there was apparently evidence of high rates of disease among firefighters, with the author asserting that bladder cancer has "taken the lives of 35 Territory firefighters in the past two decades." 

So, does the evidence exist, in which case the claim might well have been proven without a presumption? Or was the claim futile, and "was never a claim that was going to be won?" The reader is left to wonder. 

This firefighter's story had strong public appeal though. Apparently his "high profile bid to be compensated by the NT Government" resulted in "intense public pressure" to amend its workers' compensation law. Now, there is a presumption of compensability for firefighters who suffer from "12 specific cancers. Including bladder cancer." So, legislative intervention altered the rights of the two parties, creating relief for the firefighter and imposing previously unexpected and unpredicted liability for the employer. 

This legislative result switches the burden of proof. A presumption does not mean that anything is predetermined, it merely sets forth who has to prove something. So, without the presumption the firefighter had to prove that the disease was caused by work. With the presumption we assume the disease was caused by work, and it is up to the employer to prove otherwise. Possibly, the presumption may be conclusive. If proof of causation was either impractical or impossible for the firefighter without a presumption, might it be equally impractical or impossible for the employer? 

If the science does not exist, then it does not exist. But, then there is another question. If the science does not exist to make these proofs in a case, then on what basis do legislatures determine that a presumption is appropriate? Possibly, from a legislative standpoint it is less about science than it is about policy, and "intense public pressure?" In the end, this leaves us with questions 

So, now legislative intervention has rendered this firefighter's condition compensable. But, the firefighter next learned that he has not suffered "enough impairment to deem him worthy of workers compensation." His claim for financial benefits has "been rejected." 

The reason for no financial benefits? Because the firefighter, who presumptively has compensable cancer, "has been assessed to have no “permanent impairment.” This may strike some as incongruous. How workers' compensation systems calculate the entitlement to indemnity benefits can be complicated and intriguing. To begin to understand this, a quick read of Functional Loss Versus Financial Loss may assist. Another perspective on disability is in The Own-Occupation Any Occupation Debate.

So, the author concludes that "none of this is fair" because there is no financial payment. The author says "these faceless pen pushers have 'accepted' his claim because they have had" to because of the presumption, but the law is ineffective because he receives nothing "meaningful."

The author says "it’s no wonder insurance companies are viewed with such disdain by the wider population." The author concludes that insurance companies "push and they push, and they break people." They make profits that are significant. And, the author calls for change. 

It is an interesting perspective. The science discussion leaves me with questions and curiosities. The impairment and disability issues leave me with questions, in this context and beyond. And in the end, it is probably a good thing that there is a conversation about what is right in workers' compensation, and what may need some attention. It is an interesting time to be in this system.

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