Understanding the "presumption" in the Cancer Presumption Law

The general intent of Pennsylvania's the 2011 Cancer Presumption Law is simple - to take care of firefighters who develop cancer caused by being a firefighter (volunteer or career). However, it is important to understand (1) what the law actually does and does NOT do and (2) what steps a fire company should take in order to make sure its membership can take full advantage of the law's protections. I've presented a general overview below. However, with a complex issue like this which deals with a combination of employment and workers' compensation issues, you should consult your fire company's counsel on these matters.

(1) What does the Cancer Presumption Law actually do?

First, the Cancer Presumption Law is actually an addition to the state's Workers' Compensation Act. Therefore, a claim under this section is a workers' compensation claim.

Second, if a firefighter meets the provisions of the law (as described in Section 2 below), the firefighter gets the presumption that that "disease arose out of and in the course of his [or her] employment, but this presumption shall not be conclusive." A PRESUMPTION is not an "automatic win" in the case. Think of the case in terms of a tennis match. The firefighter, as the party looking for benefits, is serving. The firefighter must serve the ball over the net - this is where the presumption is key. The presumption allows for the firefighter to clear the net by showing that he or she has a type of cancer which is caused by an exposure to a Group 1* carcinogen. Without the presumption, the firefighter would have a higher degree of difficulty to make a clear connection between the cancer and its specific causation.

Many think that this is the end of the case. However, once that ball clears the net, the employer has a chance to return the serve by proving that the cancer was not caused by the occupation of firefighting. This is known as rebutting the presumption.

(2) What are the basic steps that a fire company, and its firefighters, should take to make sure they can be covered under the cancer presumption provisions?

(a) Physical Exams: Demonstrate passing a physical exam prior to the claim which "failed to reveal any evidence of the condition of cancer." It is critical that the fire company have its members undergo baseline physicals that includes things like chest x-rays and blood work. Additionally, ongoing physicals are important. Not only is early discovery important for early treatment, it is important because there are time limitations on filing claims.

(b) Document Four Years of Continuous Firefighting: The firefighter must establish continuous firefighting service for four or more years.

(c) Link Between the Type of Cancer and the Carcinogen Exposed To: The firefighter will have to "show that he has been diagnosed with a type of cancer 'caused by exposure to a known carcinogen which is recognized as a Group 1 carcinogen.'"

City of Philadelphia v. Workers' Compensation Appeal Bd., No. 579 C.D. 2015 at 16. The key here is good documentation of exposures to hazardous substances. This includes both on the fire ground and in the station. Such data should be entered into the state reporting database as part of regular fire reporting.

In the 2016 case of City of Philadelphia v. Workers' Compensation Appeal Bd., the Commonwealth Court made clear that it is not enough to establish that a firefighter has cancer and has been exposed to a Group 1 carcinogen. The firefighter must show that the specific type of cancer is a type of cancer that can be caused by Group 1 carcinogens. There must be a link between the two. In this case, the firefighter had a type of skin cancer (malignant melanoma) and claimed exposure to multiple Group 1 carcinogens. However, there was no credible evidence presented that any of the Group 1 carcinogens that he claimed he was exposed to is a cause of malignant melanoma. Therefore, the case was sent back down to the Workers' Compensation Judge for further proceedings.

What is the message here? It is not enough to simply allege an exposure to a Group 1 Carcinogen and a diagnosis of cancer - there must be medical evidence that the specific Group 1 carcinogen(s) is a known cause of the specific cancer.

*A Group 1 Carcinogen is defined by the International Agency for Research on Cancer and currently includes 118 carcinogens. More information and a detailed list can be found here:

http://monographs.iarc.fr/ENG/Classification/index.php.

#LawsandRegulations #CancerPresumption #OnDutyInjury #EmergencyServices

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