The Case Against a Cancer Presumption for Firefighters

08.26.2016


By REINALDO (REY) ALVAREZ

Firefighters put their lives on the line every single day. Their status as heroes was solidified during the 9/11 terror attacks, but we have always known that firefighters are heroes. After all, a hero is a person who risks his life to save the lives of others. Firefighters and police officers deserve our respect and support, especially when they are injured while protecting the lives of others. If a firefighter gets cancer from battling blazes and is able to show that it is related to his employment, he should get the appropriate medical care and attention.

The vast majority of states are trying to take care of firefighters who have been diagnosed with cancer. As a result, most states have enacted laws that give firefighters a presumption that their cancer occurred in the course and scope of employment. Florida and others states that do not have a firefighter cancer presumption law are in the midst of looking into creating one. Among the states that currently have firefighter cancer presumption laws, only certain cancers are covered under the presumption, and there are requirements that must be met before a presumption applies. Each state that currently has a firefighter cancer presumption law has its own guidelines and criteria on how the presumption is applied. However, once the presumption is applied, the burden of proving that the presumption should not apply falls on the employer and its workers’ compensation carrier.

To date, there are 14 states that do not offer its firefighters the presumption that their cancer is connected to their employment. In these states, the firefighters must show that a specific event or a culmination of events caused their cancer. Basically, cancer in firefighters is treated as most other workers’ compensation injuries—the burden is on the claimant to show that the injury/condition is related.

There is plenty of evidence that firefighting and cancer can be related. The International Association of Fire Fighters estimates that approximately 60 percent of firefighters will die from cancer. A 2006 analysis of 32 studies in the Journal of Occupational and Environmental Medicine concluded that there is an elevated meta-relative risk for multiple myelomas among firefighters and, in addition, a probable association with Non-Hodgkin lymphoma, prostate, and testicular cancer. Other recent studies have found that firefighters have greater odds of developing brain and colon cancers. The study also found the risk of lung cancer increases with every fire encountered by a firefighter. According to The Atlantic, consumer goods increasingly are made of synthetic materials and coatings, which, when burned, can release carcinogens that could be helping to drive up the cancer rates among first responders.

However, these are simply links to cancer and firefighting. It is evidence that can be utilized by firefighters and their attorneys to help prove their cases. There are thousands of people outside of firefighting who get the very same cancers that firefighters are getting, but firefighters are getting a presumption. The jump to a firefighter presumption for cancer is too high.

If it is proven that a firefighter’s cancer is related to work, it should be covered and they should receive excellent medical care and appropriate compensation required under the particulars of the case. There appears to be a strong link to firefighting and cancer. However, a statutory presumption goes too far. Every workers’ compensation case should be proven on the facts of the case and not presumptions. The decision as to whether or not a certain condition or injury is related to work should not be taken out of the hands of the judge or the parties in the case.

A presumption is a very slippery and expensive slope. Where does it end? Do we offer a presumption for every occupation that has a higher risk of being diagnosed with a disease or injury? Should autoworkers who have mesothelioma get a presumption that their condition is work related because they used to work with asbestos-lined brakes? Should airline workers who suffer from hearing loss get a presumption that their hearing loss is work related? Should a secretary who has carpal tunnel syndrome get a presumption that it is work related because she spends her day typing? Should factory workers who carry things all day long have a presumption that their back conditions are work related because they had no prior back condition?

Most often, a presumption is impossible to overcome. The fact that a firefighter gets cancer does not automatically prove that the condition is work related. The presumption puts facts into the equation that are not yet facts. Workers’ compensation decisions need to be based on evidence. It is difficult to overcome a presumption and show that there is some other cause for a firefighter’s cancer. The firefighter, just like the automotive mechanic, the airline worker, the secretary, and the factory worker, should be forced to show how the cancer is related to work. The studies and other available documentation should be utilized by the firefighter to help prove his case, but there should not be a blanket rule that presumes it is work related. The employer should be able to provide their own studies, experts, and documentation, and the decision should be left to the judge.


ABOUT THE AUTHOR, SOURCE

Reinaldo (Rey) Alvarez is a managing attorney Luks, Santaniello, Petrillo & Jones. This article originally appeared in the CLM publication WC magazine, and is reprinted here with permission.

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