June 3, 2008

Firefighters revisited: Presumption's Slippery Slope

In yesterday's blog, my colleague Julie Ferguson discussed the issue of compensible illness for firefighters. Forty states already have statutes giving the benefit of the doubt to firefighters: if they become ill from many forms of cancer or heart disease, the illness is presumed to be work related. The burden of proof (and "burden" is surely the operative term) falls to the municipality to prove that the illness is not work related. Nevada has taken it a step further: in the police department, any heart attack is considered work related, with no consideration of personal habits (smoking, overweight, high fat diet) or family history. That is a very generous - and potentially expensive - public policy.

As with any medical issues, you have to examine the evidence. Where it can be demonstrated that specific occupational exposures lead to specific illnesses, a basis for presumption is established. That is a fundamental of evidence based medicine. But as a matter of public policy, it is extremely hazardous to build presumption into the comp statutes. There are many forms of cancer. There are many risk factors for heart disease. By establishing a presumption that virtually any illness related to these dreaded diseases is work related, state and local governments are exposed to an enormous - and open-ended - liability. To be sure, there is always a risk that a deserving firefighter might have to undergo lengthy litigation to prove his or her illness is work related. But that process - universal in the comp system - is the necessary price we pay for participating in comp's unique disability coverage. As much as I admire the public service contributions of police and fire personnel, I believe that they should operate under the the same rules that cover all employees: their illnesses are compensable if they are demonstrably work related. In most instances, this requires a case by case review.

Follow the Money
The issue here is not medical treatment: these illnesses, if determined to be unrelated to work, would be covered under conventional health insurance. (To be sure, it's cheaper for the claimant to be treated under the comp system, as there are never any co-pays or deductibles.) As is often the case with comp, the real issue is indemnity. For firefighters, that usually means wage replacement that is 100% of their usual pay, tax free. In other words, a firefighter on workers comp makes more than one on active duty. When you combine a presumption of compensability with an already generous indemnity benefit, you have created a bitter and expensive cocktail (with state and local taxpayers picking up the tab).

Virtually all municipalities operate under a "zero sum" budget, where increased expenditures in one area (expanded coverage for illnesses under comp) become a net subtraction in another (municipal services, public safety, schools, water supplies, etc.). It may seem politically expedient to speed compensability for some of our most valued local employees (police and fire), but governments do this at great risk to the bottom line, not to mention reducing all other valued municipal employees (city workers, teachers, public works) to second class citizens.

In a word, a presumption of compensibility is a slippery slope toward budget chaos. We have an obligation to protect our public protectors. But offering presumptive comp coverage for virtually any illness is an invitation to fiscal ruin.



Hmmm. Are these limited presumptions, which are rebuttable, a legitimate cause for concern?

In a "common" occupational disease claim, a foundry or steel manufacturer employee would claim exposure to hazardous materials, which were alleged as the cause of their lung cancer ( for example).
The defense would show that there were non-occupational causes, such as a significant history of cigarette smoking. Some times that argument would prevail, other times there would be an award of benefits. Using the firefighter as an example, if there was exposure to specific chemicals in a fire (benezene), which could lead to a specific illness ( chronic myolitic leukemia), it would be difficult to rebut that evidence, with or without a presumption. Conversely, if there was a diagnosis of lung cancer and a significant history of cigarette smoking, it would be possible to rebut the presumption of an occupational disease, but as in the "steel worker" case, you may not always successfully defend that claim.

Once again it is a question of crediblity of the evidence for the workers' compensation judge... a rather typical situation in the work comp world.

While I agree that presumptions are not a good solution to this problem, I do not believe that lengthy litigation is the "necessary price to pay." The undue burden placed on the worker in non-presumptive illness cases is an extraordinary hardship. Not only do they have to prove that the illness is work-related, they must also prove when the work-related exposure occurred so that the right employer/insurer is stuck with the bill. This can be a very difficult and pain-staking process, especially if the worker has worked in multiple jobs over a period of decades. Many of those employers may even be out of business.

The burden of proof in illness cases is too heavy for the worker to bear. There is a strong need for this area to be looked into further.


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This page contains a single entry by Jon Coppelman published on June 3, 2008 11:55 AM.

Firefighters and presumptive disability statutes was the previous entry in this blog.

Setting Limits in California is the next entry in this blog.

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