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Presumptive Illness – Fighting for your life

It is well recognized that firefighting is a dangerous occupation. In addition to the trauma or cardiovascular events killing or injuring firefighters, a slow and insidious enemy has been stalking firefighters for many years and although the injury is not immediate, the effects appear many years after exposures, are long lasting and may lead to the early demise of the firefighter as documented in numerous firefighter deaths from cancers.


A majority of states now cover firefighters for one or more cancers under workers’ compensation due to presumptive legislation covering firefighters for one or more cancers under workers’ compensation as a result of presumption legislation. In many of these states, the language in the presumption legislation contains broad or nonspecific language that can be interpreted to cover any cancer experienced by a firefighter and in others, only certain specific cancers are covered, most commonly leukemia, brain cancer, bladder cancer, non-Hodgkin lymphoma, and gastrointestinal cancer. This is an incomplete list as it does not cover many cancers found in women firefighters. Additional cancers are added as discovered or claimed and added to the list of eligible presumptive cancers. Check with your individual state’s legislation.


In the case of work-related illness or injury, the burden is placed on the firefighter to prove their ailment is a result of occupational exposures. With the advent of presumptive legislation, that burden of proof shifts to the employer (rebuttable presumption) as they must prove that the firefighter’s working conditions were not a significant contributing factor to the development of cancer. With presumptive legislation, the line-of-duty claim, and subsequent benefits, can be automatically approved as long as the specific criteria are met under the state’s regulations. A “rebuttable presumption” of the cause of an occupational disease means the disease is assumed to have an occupational cause unless there is evidence to the contrary. For example, a firefighter diagnosed with hepatitis is covered under such a presumption unless evidence is produced showing an exposure outside of work including drug or alcohol abuse or a firefighter who chews tobacco or smokes may be excluded from this coverage. Again the claimant firefighter and the employer have an equally responsible burden to prove their position to accept or rebut the presumption. Unfortunately, in several cases, the employer has challenged the presumption with solid medical evidence and prevented the firefighter from a successful claim.


Documentation
In states where presumptive legislation has been implemented, documentation of occupational exposure by the firefighter and the department have played an often-critical role in ensuring a diagnosis of cancer is covered by workers’ compensation. This underscores the importance of agency-wide, comprehensive exposure tracking systems. A recommendation from this author is to document all exposures incurred on duty in addition to the department maintaining a level of documentation. This may be found in the NFIRS reporting system on your very own recording system.


Washington State, like many others with presumptive illness coverage for firefighters have legislated this coverage into the law. An example is RCW51.32.185 Occupational Diseases, Presumption of Occupational Disease for Firefighters lists exceptions and defines who are covered. First, the claimant must be firefighters defined under the law, including supervisors, employed on a full-time, fully compensated basis as a firefighter of a private sector employer's fire department that includes over fifty such firefighters, there shall exist a prima facie presumption that: (i) Respiratory disease; (ii) any heart problems, experienced within seventy-two hours of exposure to smoke, fumes, or toxic substances, or experienced within twenty-four hours of strenuous physical exertion due to firefighting activities; (iii) cancer; and (iv) infectious diseases are occupational diseases under the law. This legislation also covers PTSD as there shall exist a prima facie (based on the first impression; accepted as correct until proved otherwise) presumption that posttraumatic stress disorder is an occupational disease. In coming to this conclusion and creating the presumptive illness legislation, the legislature found that the employment of firefighters exposes them to smoke, fumes, and toxic or chemical substances and now stressors that ordinary citizens do not experience.


Qualifying Period
Many states with presumptive legislation have a qualifying period where the firefighter must have been working as a firefighter under the statutory language for a defined period of time. Some states have a 5 year qualifying period whereas Washington State’s qualifying period is 10 years


As a young and bulletproof firefighter in the 70’s, wearing breathing apparatus was not a widely acceptable practice, coming out of a structure fire with black snot running from your nose and coughing up black sputum was a mark of a seasoned firefighter as well as your soot and debris covered bunker clothing. We have to remember that while we sat in our contaminated clothing, the absorption process of carcinogens was occurring in our lungs, skin and through mucus membranes. To top off that toxic brew, we would sit on the tailboard and smoked a cigarette.


My Oh My, how times have changed in the amount of research occurring on firefighters and the after effects of firefighting especially with cancer causing contaminates we encounter.


Volunteer Firefighters
Sixty-nine percent of all firefighters in the United States — more than 788,000 — are volunteers, according to the National Volunteer Fire Council representing a substantial portion of first responders in the United States. There are approximately 19,915 all-volunteer fire departments out of a total of 29,980 fire departments across the country. Throughout the country, most volunteer first responders who work under the direction of a municipality, county or state may be eligible to receive comp benefits for bodily injuries sustained while responding to an emergency and not from slow forming cancers or mental stresses such as PTSD. Dependent on state by state legislation to what extent volunteers are covered for various illnesses and injuries there are generally no standard workers compensation format across the country for volunteers as each state makes its own determinations. Some states are very strong in what they require and other states do virtually nothing. When the volunteer suffers an injury or illness that can’t be directly tied to a bodily injury, comp coverage enters the twilight zone.


Federal Firefighters
Legislation has been pending for Federal firefighters covered under the Federal Employee Compensation Act (FECA), but federal fire fighters must be able to pinpoint the precise incident or exposure that caused a disease in order for it to be considered job-related. This burden of proof is extraordinarily difficult for fire fighters to meet because they respond to a wide variety of emergency calls, constantly working in different environments under different conditions. As a result, very few cases of occupational disease contracted by fire fighters have been deemed to be service-connected. Work continues on this conundrum.


Decontamination and Environmental Issues
As science improves related to determining the causes of cancers, firefighters and their departments must implement improved safety standards and screening to catch occupational cancers earlier and treat them immediately. Industrial hygiene standards for decontamination after an event, cleaning protective clothing including your hood, helmet and SCBA gear are instrumental first line protections. Showering after a call and changing your uniform down to your skivvies are equally important. Periodic medical physicals and cancer screening plays an important role in discovering cancers including skin checks for melanomas and other skin cancers. Early detection is also an important firefighter role in many of these cancers can be cured with early detection. Even environmental issues such as our fire stations can be causing some of the cancers affecting firefighters. A recent example is at Seattle Fire Station 31 whereas there are a higher than average number of cancer cases in firefighters stationed there. There has been a focus of discovering this cause after many years of inquiry, questionable outcomes in the studies and increased numbers of Seattle Firefighters stricken with cancers. (https://www.seattletimes.com/seattle-news/is-station-31-makingseatt...)


Cases – an uphill battle
The Washington Supreme Court moved in favor of two Bellevue firefighters battling melanoma whose insurance benefits were rescinded by the city and state Department of Labor. In Delmis Spivey v. City of Bellevue and the Department of Labor and Industries (No. 91680-2 consolidated with No. 92197-1) gives teeth to the law passed by legislature to protect firefighters but the burden of proof fell onto the Plaintiff(s) Spivey to prove that his melanomas were occupationally acquired. This was an extensive battle and finally decided by the Washington State Supreme Court in favor of the firefighters.


In Pennsylvania, the workers comp law establishes a presumption for “cancer suffered by a firefighter which is caused by exposure to a known carcinogen.” But the appellate court noted that the presumption applies only for firefighters “who have served four or more years in continuous firefighting duties, who can establish direct exposure to” carcinogens related to firefighting. Mr. Demchenko, a former Philadelphia firefighter and paramedic who had prostate cancer filed a claim and his medical expert failed to prove that his cancer was an occupational disease because he failed to establish a direct connection between cancer and his exposure to carcinogens. (Peter Demchenko v. Workers’ Compensation Appeal and Board (City of Philadelphia) No. 2164 C.D. 2015).


The Illinois Appellate Court affirmed a decision of the Illinois Workers’ Compensation Commission denying an assistant fire chief’s workers’ compensation claim for a heart attack presumed by statute to have arisen out of and in the course of his employment in Simpson v. Illinois Workers’ Compensation Comm’n, 2017 IL App (3d) 160024WC. The claimant in this case was a 33-year veteran of the fire department who suffered a heart attack after becoming the Assistant Fire Chief. In a case of first impression, the Commission found that the City of Peoria overcame the rebuttable presumption that the claimant’s heart attack arose out of and in the course of his employment and denied the claim. Specifically, the City successfully rebutted the presumption “by providing strong evidence through its experts’ opinions along with the claimant’s own health history, work history and the claimant’s own testimony to show there were other causes of the claimant’s cardiovascular problems and his condition is not related to his employment as a firefighter.” With the presumption rebutted, the Commission found that the claimant failed to prove that his heart attack was related to his employment because “at the time of his heart attack, he was at home, had just physically exerted himself, and was not performing any activity connected to his duties as a firefighter or Assistant Fire Chief.” Moreover, “during the last 1/3 of his career, the claimant was working in an administrative capacity performing tasks of a more sedentary nature and had several cardiac risk factors including being a male of advanced age, overweight, and on medications for high blood pressure and high cholesterol.”


A firefighter battling cancer is being sued by the City of Baytown in order to deny paying him insurance coverage for his treatment over the last 18 months. Patrick Mahoney, a battalion chief for the Baytown Fire Department, was diagnosed with thyroid cancer in December 2016, forcing him to have half of his thyroid removed and undergo continued treatment, including thyroid hormone supplements and regular blood work. Immediately after his diagnosis, Mahoney, 36, filed a workers compensation claim, seeking insurance coverage for his treatment, which he is currently paying out of pocket. Mahoney believes he was exposed to carcinogens as part of the hazards of his work as a firefighter, and Chapter 607 of the Texas Government Code, known as the "presumptive statute," ensures treatment of job-related illnesses.


PTSD
Canada appears to be on the cutting edge of recognizing PTSD is a presumptive illness with the introduction of legislation making those conditions a presumptive illness. In Washington State, under the presumptive legislation finds that under certain conditions Post Traumatic Stress Disorder exist a prima facie presumption that posttraumatic stress disorder is an occupational disease. Of course the firefighter needs to document the events, there is a qualifying period of time the stressor events occur and the firefighter must be diagnosed by a qualified practitioner. Other states are following these examples as well. This is not an easy diagnosis in which to file a claim, but every successful claim clears the path for the next firefighter suffering from PTSD to file a claim.


Documentation and Self-care.
Finally, as I stated early in this article, I cannot stress the importance of documentation. It is the cornerstone to a successful claim. There is no “books or instructional guidelines” available for firefighters, their medical practitioners or lawyers to make this process easy. It is up to every firefighter to document those events that cause cancer or PTSD acquired on the job. It’s tough because you have to document every event on every shift for your career that may tip the balance in your individual claim filing. It is hard at first, but it becomes your routine as without proof, you will have a very hard uphill climb to file a successful claim.


Be careful out there. Many times it’s what you can’t see will kill you.


Endnotes
1) First Responder Center for Excellence - https://www.firstrespondercenter.org/cancer/toolsresources/presumpt...

2) RCW 52.32.185 – State of Washington – Presumptive Illness Legislation

3) NCCI White Paper on Firefighter Presumptive Coverage https://legislature.vermont.gov/assets/Documents/2018/WorkGroups/Ho...

4) Other newspaper articles, personal experience and conversation with experts.

John K. Murphy, J.D. M.S, PA-C, EFO, a career firefighter beginning his fire service as a Firefighter/Paramedic and retiring as a Deputy Fire Chief after 32 years of service. Mr. Murphy is an attorney licensed in Washington whose focus is on firefighter health & safety, firefighter risk management, employment practices liability, employment policy, internal investigations, expert witness and litigation support and consulting on risk management for fire departments. He is a practicing Physician Assistant with a focus on Occupational Medicine and was a Navy Corpsman with the Marine Corps.

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