Presumptive Health Initiatives and Workers’ Compensation

When workers are injured on the job, they usually must provide proof that the injury occurred because of or during the course of their employment in order for workers’ compensation to take effect. But if the injury in question is, say, lung cancer in a firefighter who has inhaled carcinogenic chemicals, it becomes more difficult. An employer might concede that the firefighter may have been exposed to such chemicals on the job — after all, in 2022 the World Health Organization classified firefighting as a Group 1 Carcinogenic profession, the highest classification of cancer risk — but will point out that the worker also smoked ten years ago.

In these situations, presumptive health initiatives can help. According to an article in Mother Jones magazine, “All 50 states have laws or programs that presume at least some cancers in firefighters are work related.” You can find additional information in a database accumulated by the National Council of Compensation Insurance (NCCI), which lists “presumptive benefits” laws that benefit not just firefighters but also first responders like police officers, EMT personnel, corrections officers, and, increasingly since COVID-19, medical personnel. The International Association of Firefighters (IAFF) also has an excellent presumptive disability provisions database. These laws, which have been passed in the states because most workers’ compensation benefits are state-administered, are intended to make it easier for workers to qualify for benefits. The specific diseases referred to in the statutes are now presumed to have arisen during the course of employment, meaning the burden of proof is on the employer rather than the worker.

Presumptive health initiatives are not new. The 1972 Black Lung Amendment Act, for example, added a fifteen-year presumption for miners’ claims of disabling pulmonary impairment. According to a Department of Labor 2022 blog post, “At this time, the federal government determined that state [workers’ compensation] systems were not adequately caring for miners with black lung, so it was necessary to intervene and provide sufficient support for disabled miners and their families.”

The general public became more receptive to presumptive health benefits after 9/11, when it became apparent that responding firefighters who responded to the attacks developed a seriously elevated risk of certain cancers. A 2019 study found a roughly 25% increased risk of prostate cancer, a doubling in the risk of thyroid cancer, and a 41% increase in leukemia in 9/11 responders compared to the general population.

With rising awareness of serious health hazards involved in their occupations, more and more first responders have fought to pass legislation to include presumptive health initiatives as a part of workers’ compensation benefits. The result is complicated. Each state’s presumptive benefits statute differs, not only in the diseases covered but also in which first responders are included (for example, some states cover corrections officers; most don’t). Certain states, like New York and Florida, offer cancer benefits for firefighters that are separate from the state workers’ comp systems.

Generally speaking, most states’ presumptive statutes kick in after a stated minimum service period of two to twelve years and cover heart and lung disease, cancer, certain types of infectious disease, and mental and behavioral health issues (increasingly Post Traumatic Stress Disorder, or PTSD).

Does having presumptive health benefits automatically mean first responders will receive workers’ comp benefits in their state? Not necessarily. In most states, presumption is “rebuttable,” meaning the employer has the right to argue against it. The Mother Jones article quoted earlier, written in conjunction with Public Health Watch, notes that many local governments in the U.S., concerned about taxpayer dollars, deny or delay workers’ comp benefits for first responders “as a routine matter.” For example, California has one of the strongest presumptive health laws in the country, but over the past decade, “San Jose firefighters’ workers’ comp claims for cancer have taken an average of two years to resolve…Some claims have dragged on far longer — up to six years — the data shows.” And in Florida, of 41 firefighter cancer claims filed between when the state passed its presumptive health law in 2019 and 2023, all but three were initially denied. Public Health Watch discovered the state “has rarely approved firefighter cancer claims.”

Rates of denial and reluctance to pay out on workers’ compensation are not the same for every state, but members need to work closely with their unions to make sure first responders’ claims are adjudicated fairly. A case in point: In 2023, when a Washington State firefighter was denied workers’ compensation for his lung cancer because of a technicality, he and IAFF Local 452 supported two bills before the Washington State legislature that advocated for “good faith and fair dealing” — backed up by meaningful fines — from administrators of the state workers’ compensation program. One of the laws, HB 1521, passed the House and Senate, has been signed into law by Governor Jay Inslee, and will become law on July 1, 2024.

It is, at the very least, a step in the right direction.