By Tom Murse
The Intelligencer Journal/New Era
HARRISBURG, Pa. — When firefighters in Pennsylvania are diagnosed with cancer, they must show that their illness was caused by the hazardous job they do if they want to recover medical costs and lost wages.
The burden of proof is on them.
And it is often a time-consuming and expensive battle.
But legislation gaining momentum in Harrisburg would flip that burden to employers and insurers, who would be forced to award workers’ compensation benefits to firefighters unless they can prove the disease is unrelated to their job.
In other words, firefighters — both paid full-time and volunteer — would automatically qualify for benefits upon getting types of cancer that have been linked to fires.
The bill, which has won approval in the state House, is hailed by firefighters, who say it is a fairer way of dealing with people who put their lives on the line every day.
“We have been trying to get this passed for years,” said Ernie Rojahn, treasurer of the Lancaster County Fireman’s Association which supports the legislation.
However, municipal leaders oppose such a move because of unknown financial risks to taxpayers - from increasing insurance premiums to the potential for a large number of claims.
“People will say, ‘How can you not be sympathetic to people who provide those kinds of services and then go on to contract cancer?’ You can and should be,” Lancaster Mayor Rick Gray said.
“But what are the the ramifications? What are the costs? That’s our complaint,” he said. “All, including myself, don’t have any idea what the financial results would be. It could be really serious. It could be nothing. But nobody has any idea.”
The bill, authored by Democratic Rep. Kevin Murphy of Lackawanna County, overwhelmingly passed the House in August, 186 votes to 3. All eight House members from the county voted in favor of the bill, which was sent to the Senate Labor Relations Committee for review.
“At a time when firefighters and their families ought to be focusing their energy on getting treatment for cancer,” Murphy said in announcing the bill’s passage in the House, “we ought to make sure they have financial support through workers’ compensation, rather than force them to prove in court that there is a correlation between their work environment and their cancer.”
Normally, employees must prove that their injuries, illnesses or diseases are caused by the work or workplace conditions to receive benefits.
The law would apply not only to the 3,500 paid firefighters but to the 60,000 volunteer firefighters in Pennsylvania as well.
The bill, however, has remained in the committee since last summer, and the Legislature’s two-year session ends after November. A similar bill passed the House in 2008 but died in the Senate.
Sen. Lloyd Smucker, a West Lampeter Township Republican who is vice chairman of the Labor Relations committee, said he expects movement on the legislation.
“I do believe it will, at some point, move out of committee,” he said.
The legislation died in committee in 2008.
“I think there is a widespread appreciation of the work that our firefighters do, and there is a willingness to look at the issue to be sure that they are adequately compensated when there is a legitimate impact from their occupation,” Smucker said.
Smucker acknowledged that flipping the burden of proof to workers’ comp “would have a pretty significant impact. We’re all concerned about the impact on municipalities and cities. Somewhere along that line is the right point, and I’m not sure where that is yet.”
Smucker said he and fellow legislators are researching and discussing the issue with firefighters and municipalities.
Thirty-two states have similar laws on the books, according to a 2009 study by the National League of Cities. Eight other states, including Pennsylvania, have legislation pending.
Municipal leaders are gearing up for a fight. Many learned just last week, in a memo distributed by the Pennsylvania League of Cities and Municipalities, that the legislation was gaining momentum.
“If enacted, this bill would result in a very expensive unfunded mandate and will quite possibly affect your workers’ compensation coverage,” the league warned. “We have been working with the other local government associations to keep the bill from moving any further in the process.”
Municipalities that are home to volunteer fire departments would be affected too, because they are required by state law to carry workers’ comp insurance on the agencies.
Larry Downing, a Manheim Township commissioner who oversees public safety issues in the suburb, said his board opposes to the bill because of its “conclusion that if a firefighter fought a fire and contracted cancer, it is assumed the cancer was caused by firefighting.”
He said there needs to be definitive proof that a firefighter’s cancer was caused by the occupation.
A 2006 analysis by the Journal of Occupational and Environmental Medicine found firefighters had an elevated risk of multiple myeloma, or cancer of the plasma cells in bone marrow, and correlations between the occupation and non-Hodgkin lymphoma, prostate and testicular cancers.
The National League of Cities report, however, noted inconsistencies in all the studies on the subject and questioned the strength of the “associations” between firefighters and cancer. It instead called for more research before reaching such conclusions.
Under current law, firefighters are covered for numerous illnesses and cancers linked to exposure to carcinogens they face when fighting fires - skin, central nervous, lymphatic, digestive, hematological, urinary, skeletal, oral, breast, testicular, genitourinary, liver or prostate systems, as well as any condition of cancer that may result from exposure to heat or radiation or to a known or suspected carcinogen.
But they must prove the connection to their work as a firefighter before receiving workers’ compensation.
David Wyrwas, president of the Pennsylvania Fire and Emergency Services Institute, said the current law does not provide adequate protection for firefighters.
“The problem with the current way of going things is it’s one firefighter against the system,” he said. “The system is designed to deny claims when they can. For a firefighter to prove that an event or multiple events caused cancer is a real uphill battle.”
Gray, however, said it would be nearly impossible, should the legislative become law, for insurers to prove a firefighter’s cancer was not caused by the occupation.
“Proving negatives is extremely difficult,” said Gray, a former defense attorney.
He added that he believes there is “plenty of protection” in the current law and that forcing insurers to cover all claims of firefighter cancer would hit taxpayers hard.
“This is the kind of thing that the general assembly does and doesn’t check with the municipalities to ask what it means,” he said.
In the city, a self-insured employer, claims would be paid directly by the city, up to $500,000 per firefighter. The potential for numerous cancer claims, however, would likely lead to higher insurance premiums, though how much higher is unclear.
Wyrwas refuted claims that the cost of providing workers’ comp to municipalities in states that already provide such coverage has substantially risen.
“There is clearly a cost associated whenever a workers’ comp carrier has to pay more claims, because insurance is nothing more than dollars in versus dollars out,” he said. “But in states that have cancer presumptions, there’s virtually a nominal or minimal increase is workman’s comp costs as a result.”
Copyright 2010 Lancaster Newspapers, Inc.