Firefighters and presumptive disability statutes

June 2nd, 2008 by Julie Ferguson

Sally Roberts has written a good article on firefighters and state workers comp laws in the recent edition of Business Insurance. Regardless of profession, illnesses have traditionally posed more of a compensability challenge than an out-and-out injury. When someone suffers an injury, it is generally a discrete event so matters are usually black and white as to compensability. Because illnesses are progressive, it can be more difficult to associate them with a work exposure – particularly illnesses like cancer that might have other contributing life factors. For most professions and in most states, the burden of proof is on the employee to demonstrate the work-relatedness of an illness. But as Roberts notes in her article, more than 40 states have some type of presumptive disability statutes for firefighters. According to the International Association of Firefighters, this means that the burden of proof shifts from the employee having to prove that the illness is work related to the employer having to prove that the illness is not work related. In most states the presumption is rebuttable, but in some states it is not.
Proponents point to studies documenting that firefighters are at heightened risk of certain diseases and illnesses, such as infectious disease, heart disease, lung disease, and cancer. Opponents see presumptive laws as favoring one class of workers over another. Plus, opponents also cite the cost and inefficiency of treating medical conditions under the workers comp system, which has rudimentary managed care in comparison to the group health system.
It’s a sticky dilemma. Putting the burden of proof to establish the work-relatedness of an illness on the employee often seems to be an unfairly high hurdle for certain high-risk, high-exposure professions; employers face a similarly high hurdle in trying to establish proof that an illness is not work related. Firefighters are exposed to danger and toxins as a part of their normal work conditions. Determining whether the job exposure or a nightly diet of hamburgers was the cause of a heart condition is work for a Solomon. Establishing which exposures are work-related and which are more likely due to ordinary life circumstances is near impossible. This seems to be a good test area for the “24-hour coverage” concept. Perhaps high risk, essential service public personnel such as firefighters and police need to be treated more like the military in terms of being afforded comprehensive medical care for both on- and off-the-job injuries and illnesses.
The International Association of Firefighters has clickable maps with links to presumptive laws related to firefighters in U.S. and Canada.