Senate Committee Considers Special Treatment for Firefighters in Work Comp

Posted by Dean Blackaby | Jan 13, 2015 | 0 Comments

Sen 20caferro
Mary Caferro (D)-Helena

The Senate Business, Labor and Economic Affairs committee is scheduled to hear SB 103 on February 11, 2015 at 8 a.m. (Room 422).  Carried by Helena Democrat Mary Caferro, SB 103 is this year's run at creating presumptive diseases for firefighters in the Montana Workers' Compensation Act.  Bills with the same aim have failed in at least the last two legislative sessions.

This version (full text here) creates a very long list of diseases and conditions that would be presumptively compensable under the Act provided that the firefighter is able to meet specific criteria with respect to work history, timing of diagnosis and periodic baseline medical examinations.

Other states such as Nevada have accorded firefighters special treatment under workers' compensation.   Nevada attorney Virginia Hunt recently published a short blog on Nevada's treatment of firefighters.

A recent NIOSH study drew a link between the occupation and several cancers involving digestive, oral, respiratory and urinary systems.  The study founder higher rates of cancers for firefighters than the general population and twice the number of malignant mesothelioma cases among firefighters.

SB 103 applies the presumption to diseases contracted during the term of employment of the firefighter or during a period following termination of employment that is the equivalent of 3 months for every year of employment not to exceed 60 months.  That particular section is fairly generous while subsequent wording narrows application with additional language.  Specifically, the firefighter must, as a condition of employment, undergone a medical examination that did not reveal substantial evidence of the presumptive disease being claimed, with subsequent periodic medical exams occurring at least once every 5 years during the first 10 years of service and once every 3 years after 10 years of service.  In other words, substantial baseline testing must be available for comparison.

Individual listed conditions may also carry further factual burdens to qualify for the presumption.  Specifically, for heart disease, respiratory disease or the lung cancer presumption, a firefighter may not be a regular user of tobacco products or have a history of regular tobacco use in the past 5 years.  For the cancer presumption to apply, a firefighter must have 10 years of service.  Finally, for a heart disease presumption specifically related to a myocardial infarction, the myocardial infarction must occur within 72 hours of a work-related task involving specific physical exertion or exposure to a hazardous substance.

The presumptive list is basically three categories:

(1) General Diseases - heart and respiratory disease;

(2) Infectious Diseases - tuberculosis, hepatitis (A, B, C and D), HIV, diphtheria; hemorrhagic fever, meningococcal disease or methicillin-resistant staphylococcus aureus;

(3) Cancers - bladder, colon, lung, malignant melanoma, mesothelioma, multiple myeloma, nonhodgkins lymphoma, nonmelanoma skin cancer, primary brain cancer, primary kidney cancer, prostate, rectal, stomach, testicular or ureter cancer.

With any type of occupational specific presumption, constitutional concerns are raised by equal protection analysis -- treating claimants differently when analyzing a long list of conditions will always draw equal protection attention.  However, given the inclusion of service requirements and extensive baseline testing, the presumption doesn't really extend as far from the standard burden as one might assume.

2/8/15 UPDATE:   The hearing for this bill is now scheduled for February 11, 2015 at 8 a.m. in Room 422.

About the Author

Dean Blackaby

Attorney representing individuals hurt at work; mediation of workers' compensation disputes; settlement consultant focusing on Medicare Secondary Payer compliance and Medicare set-asides.

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