Florida Firefighters Diagnosed with Cancer Should Receive Same Presumption as Majority of Country

Mounting Evidence Supports a Causal Link Between Firefighters and Cancer

As noted in my recent article about hypertension in first responders, Florida does not currently recognize cancer as a covered occupational disease for firefighters or other first responders. This places Florida in the minority, as over 35 states have laws on the books that include some type of presumption that a firefighter diagnosed with cancer became sick due to exposure to carcinogens while in the course and scope of employment.

Mid 1980s: Scott McPherson with fire academy classmates at a training fire.

As an attorney, when I look at a Florida law that I view as unjust, I find it helpful to look to other jurisdictions to see how the issue is treated. Many times it gives me ideas as to how a law could be revised in Florida to make it reasonable. Below I’ll briefly look at New Hampshire and Colorado state statutes on the subject.

New Hampshire

…there shall exist a prima facie presumption that cancer disease in a fire fighter… is occupationally related.

However:

….A retired fire fighter who agrees to submit to any physical examination requested by his city, town, or precinct shall have the benefit of the prima facie presumption for a period of 20 years from the effective date of such fire fighter’s retirement.

Colorado

Death, disability, or impairment of health of a firefighter of any political subdivision who has completed five or more years of employment as a firefighter, caused by cancer of the brain, skin, digestive system, hematological system, or genitourinary system and resulting from his or her employment as a firefighter, shall be considered an occupational disease.

There are certainly differences between Colorado and New Hampshire. New Hampshire has some fairly liberal language that includes benefits for former firefighters that get cancer up to 20 years after retirement. Colorado’s statute is more specific as to types of cancers that will be covered, and also includes a requirement of 5 years of working as a firefighter. However, both create a presumption that, when certain conditions are met, a Firefighter’s cancer occured in the course and scope of employment and the firefighter should receive workers compensation benefits.

Why is a Legal Presumption so Important?

Law students learn early the tremendous value of a legal presumption. In the context of this issue, if a firefighter becomes ill with cancer and the illness is presumed to be occupational, then it places the burden of proof on the employer to prove that the cancer was caused by something other than occupational hazards. With no presumption, as is the case in Florida, the Firefighter has the burden of proving his or her cancer was caused by exposure to carcinogens while on the job. This will be nearly impossible in most cases.

Having no presumption may be fine for most occupational injuries. If a Firefighter sustains a fractured tib-fib at a structure fire, it’s easy to prove that it happened in the course of employment. To prove cancer is caused by employment is an entirely different story.

Why Should Florida Firefighters Have this Presumption?

In 2010, the CDC National Institute for Occupational Safety and Health (NIOSH) started a study on this subject, and as recently as this year continue to publish findings. The study looked at data from decades of firefighters from large departments. It was found that firefighters are at a greater risk for cancer, and a far greater risk for certain types of cancer including leukemia, lung cancer, and mesothelioma (twice the risk). There are numerous other studies that have likewise found a causal link between specific cancers and the chemicals Firefighters encounter in their career.

Firefighters are exposed to carcinogens not only from smoke, but also from flame retardant chemicals used as part of their job. The exposure is not limited to the time fighting a fire, as carcinogens can remain on bunker gear and other equipment.

What’s Up Florida Legislature?

So why does Florida remain in the minority by not recognizing an occupational link between Firefighters and cancer? A cynical person might point out that workers compensation insurers rank #2 in the amount paid to lobbyists to protect their interests in Tallahassee ($315,000 in 2012). And the amount paid to lobbyists is just the tip of the iceberg, as it does not account for contributions to individual politicians. They are not spending this money to get nothing in return.

While first responders may be members of unions or other organizations, they simply do not have the political power or resources to compete with the insurance and business lobbies that have a vice grip on Florida lawmakers. That being the case, the only way that cancer is likely to be added as a compensable disease is if elected officials see that it makes good political sense for them to enact legislation that goes against the wishes of powerful donors and lobbyists.

Conclusion: Florida Firefighters Should Receive the Same Presumption as the Majority of States

I would not argue that every Firefighter diagnosed with cancer should receive benefits through workers compensation (nor does any state that I’m aware of have such a law). What I am suggesting is that Florida lawmakers should revise the Heart & Lung statute to include a presumption that Firefighters diagnosed with certain cancers got the disease within the course and scope of employment. The types of cancers covered could be decided through legislative debates and public hearings. I would personally error on the side of including a wide range of cancers within the presumption, given that an employer is free to challenge (or “rebut”) the presumption of occupational disease if there is no evidence to support a causal link.

There is mounting scientific evidence that Florida Firefighters are frequently exposed to carcinogens from smoke, bunker gear, retardants and carcinogenic residue. By including cancer in the heart and lung statute, Firefighters diagnosed with specific types of cancer would receive medical and wage loss benefits through workers’ compensation, and could then focus on treatment and recovery instead of severe financial hardships.

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Note: Florida is not the only state failing to recognize cancer as an occupational disease of Firefighters. For example, Idaho firefighters have been working for 20 years on this same issue, as seen in this news story: Firefighters Battle Workers Compensation Law.

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