In addition to the findings previously discussed, the Virginia Joint Legislative Audit and Review Commission also found the following:
- The cost of Virginia workers’ compensation claims. Compared to other states, insurers for Virginia workers paid comparatively high amounts so workers could treat their injuries or disease. The JLARC states that medical fee schedules which govern the amount of payment for medical services have helped somewhat, but “at least some reimbursement rates in Virginia’s medical fee schedules appear to be high compared with other states.”
- Disease presumptions – firefighting and cancer. Disease presumptions are a way of helping workers prove the causal connection between their work and their illness. “A key premise of disease presumptions is that a plausible connection exists between a presumptive disease and the workers’ occupation, but evidence to prove a connection is difficult or impossible to obtain.
In the area of firefighting and various types of cancer, JLARC reviewed a study of available scientific evidence examining the causal connection between firefighting and 10 different cancer presumptions. The study was done by epidemiologists at Johns Hopkins University’s Bloomberg School of Public Health. The study did find some mixed results. Still, it did find enough of a causal connection to “support a plausible connection between firefighting and the cancers currently included as presumptive diseases in the Code of Virginia.”
It also found plausible connections between firefighting and colon cancer, testicular cancer, and brain cancer – three cancer types that Virginia is considering adding to the state law. The causal connection that is the weakest (but still plausible) is between firefighting and colon cancer.
- Unreasonable burden on certain types of cancer claims. The JLARC found, on review of firefighter claims between 2009 and 2018, that they were not able to show their exposure to a specific carcinogen caused their cancer or were not able to meet the “presumptions’ disability requirement.” The two statutory requirements, according to the JLARC are “unreasonably burdensome and possibly counter to legislative intent.”
The reason it is unreasonably burdensome to document carcinogen exposure, according to researchers at John Hopkins University, is that is cost prohibitive and because of the inability of current technology to prove the exposure. “Additionally, requiring a firefighter to identify a single carcinogen that is known to cause his or her type of cancer appears counter to the purpose of the presumption, which is to relieve firefighters of the need to prove that their occupation caused the disease.”
The JLARC raised the following concerns about the disability requirement:
There are times when a “firefighter’s cancer was not presumed to be caused by work simply because the worker did not have a period of wage loss. Whether a firefighter loses wages because of his or her disease does not appear to be relevant to whether his or her employment caused the disease.
The JLARC found that the requirement that firefighters work 12 or more years under the state cancer presumption statute was not clear and “does not align with research on cancer among firefighters.” Researchers at John Hopkins University found cases were exposure for less than 12 years could create an increased caner risk. The 12-year requirement is also longer than that for many other states.
- Heart disease presumption. The JLARC found that employers had a difficult but not impossible task to rebut the presumption that cardiovascular disease should be presumed under certain conditions. Virginia has a tougher rebuttal requirement for heart disease than some other states. Still, the JLARC found that workers’ compensation “is intended to favor injured workers, and presumptions are not supposed to be easy to rebut.” In 23 percent of heart disease cases decided from 2009 to 2019, the employer was able to successfully rebut the cardiovascular presumption – in those cases decided by the Virginia Workers’ Compensation Commission
The risk of heart disease increases the more years a worker does his/her job. There is credible scientific evidence that the risk of heart disease among public safety workers does increase as the years of service increase. Other states have a years of service requirement that public workers must meet in order to benefit from a cardiovascular disease presumption. Virginia dose not have a statutory requirement for years of service. JLARC states that a specific years of service requirement would:
-
- Be in line with current epidemiological research
- Mean that Virginia’s laws are consistent with the way many other states address the issue
- Help “ensure that ensure that employers and workers’ compensation insurers do not pay for the costs of non-work-related diseases.”
The JLARC doesn’t currently recommend an alternative benefit program for public workers such as firefighters – which is what some states, since 2017, have done to help public safety workers get the wage benefits, medical payments, and rehabilitation expenses they deserve.
JLARC believes that improvements to the current Virginia workers’ compensation system would be beneficial. The report includes numerous recommendations for how to make the state workers’ compensation system address its shortcomings. JLARC recommends implementing these recommendation before considering any broader changes.
These recommendations include legislative action, executive action, and implement specific policy options.
As a firm who represents injured workers, including first responders, we sincerely hope that the legislature in Richmond sees fit to make the recommended changes so that police and firefighters are not prevented from making claims for heart disease, cancer and other occupational diseases set forth in the law.
Virginia workers’ compensation lawyer Joe Miller Esq. helps workers who suffer an injury due to a workplace accident. He also fights for workers who develop an occupational disease due to their workplace environment. He fights to obtain payments for long-term medical care when needed due to injuries or a disease. He also seeks to classify a worker who qualifies as having a permanent disability. He demands payment for all allowable lost wages (the percentage authorized by statute). To discuss how to prove your claim and how to verify your medical needs and wage rights, please call attorney Joe Miller, at 888-694-1671 or fill out my online contact form to schedule an appointment.
