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Ohio ‘Cancer Presumption’ Would Cover Treatment as Workers Comp

April 29, 2016

A bill now being considered by the Ohio House of Representatives would create a legal presumption firefighters with certain cancers became ill as a result of their work. Senate Bill 27, sponsored by state Sen.

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A bill now being considered by the Ohio House of Representatives would create a legal presumption firefighters with certain cancers became ill as a result of their work.

Senate Bill 27, sponsored by state Sen. Tom Patton (R-Strongsville), passed the upper chamber 32–1 on April 13. If the bill becomes law, Ohio’s employers will pay the cancer treatment costs of certain firefighters through the state’s workers compensation system instead of health insurance.

Any firefighter who at one point was “assigned to at least three years of hazardous duty as a member of a fire department, and is disabled as a result of any of [numerous] types of cancer, is presumed to have incurred the cancer while performing the member's official duties,” unless “refuted by affirmative evidence to the contrary,” the bill states.

If the presumption the cancer is work-related holds, the Ohio Bureau of Workers Compensation (BWC) would assume 100 percent of treatment costs and provide generous survivor benefits.

The nonpartisan Ohio Legislative Service Commission estimated SB 27 would cost the state’s employers an additional $75 million per year. BWC estimates the nearly identical House Bill 292 would cost $87 million per year. It would be paid for by Ohio’s employers through premium payments to BWC and employee/employer contributions to the Ohio Police and Fire Pension Fund.

If the presumption is refuted, a firefighter’s cancer treatment would be paid through employer-provided health insurance.

Questions About Causes

Bill proponents include the Ohio Association of Professional Fire Fighters (OAPFF) labor union and the trial lawyer group Ohio Association for Justice (OAJ). Opponents include employer organizations such as the Ohio Township Association and Ohio Municipal League, whose members employ most firefighters in Ohio.

Kristopher Kachline, an attorney with the Chartwell Law Offices in Philadelphia, Pennsylvania, who has represented cities and municipalities faced with cancer-presumptive claims filed by firefighters, testified in opposition to the Ohio bill on April 5.

Kachline told the Ohio Senate Insurance Committee the bill fails to distinguish firefighters’ higher-risk cancers from lower-risk ones.

“Senate Bill 27 is over-inclusive in that it has enumerated several cancer sites that have not been consistently demonstrated to pose a risk for firefighters,” Kachline said. “Those include cancers of the lung, brain, prostate, testicle, stomach, skin, colon, and rectum, as well as many forms of non-Hodgkin’s lymphoma, leukemia, and multiple myeloma.”

Kachline says studies of firefighters’ cancer risks are inconsistent and sometimes suggest a decreased risk of cancer.

“Epidemiologic studies have been all over the map regarding the risk firefighters face, if any at all, for the development of cancer at some of those sites,” Kachline said. “For other sites, like cancers of the brain, studies have consistently shown that firefighters are at no additional risk for the development of cancer versus the general population. Several studies actually show a decreased risk for the development of cancers of the brain among firefighters.”

Post Hoc, Ergo Propter Hoc

Karen Turano, an attorney with Connor, Evans and Hafenstein and an OAJ member representing OAPPF, has practiced exclusively in Ohio workers compensation law for nine years. Turano says firefighters could face an increased risk of cancer despite a lack of consistent evidence.

“As the opposition has pointed out, there are inconsistencies with the scientific data, specifically, linking some cancers, but not others,” Turano told the Ohio Senate Insurance Committee. “This research and scientific evidence does not mean the increased risk does not exist for firefighters.”

Turano says current Ohio law makes it difficult for firefighters to pursue work-related cancer claims.

“Pursuing claims administratively before the BWC and/or [BWC’s administrative appellate branch] is difficult because of the issue of causation,” Turano said.

“Once the firefighter can satisfy the occupational disease criteria, obtaining the general and specific causation is extremely hard.”

Cautious Sympathy

Greg Lawson, legislative liaison at The Buckeye Institute for Public Policy Solutions, says policymakers should temper sympathy with caution.

“We are all sympathetic to those who put their lives on the line like firefighters,” Lawson said. “However, we need to be very cautious when expanding worker's compensation coverage.”

Lawson says SB 27 could turn Ohio’s workers compensation system into a drag on the state’s economy.

“To the extent that an injury or sickness can be medically proven to stem from someone’s work, compensation makes sense,” Lawson said. “But the system absolutely cannot become a free-for-all where any condition an individual may suffer from becomes compensable. To do that is to court economic stagnation as business costs rise and less people are hired. Any legislation expanding coverage must therefore only include those items that can be shown conclusively to have arisen from service.”

Josh Brown (josh@joshbrownesq.comis a legislative advocate and policy analyst for the Ohio Municipal League and executive director of the Ohio Association of Public Safety Directors.

Internet Info:

“Ohio S.B. 27 (2016): Cancer Presumption for Firefighters,” The Ohio Senate, April 13, 2016: https://www.heartland.org/policy-documents/ohio-sb-27-2016-cancer-presumption-firefighters

Andrew G. Biggs and Jason Richwine, Overpaid or Underpaid? A State-by-State Ranking of Public Employee Compensation, American Enterprise Institute for Public Policy Research, April 1, 2014: https://www.heartland.org/policy-documents/overpaid-or-underpaid-state-state-ranking-public-employee-compensation

Author
Attorney Josh Brown is Government Relations Counsel at Graff & McGovern.
josh@grafflaw.com

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