This is the third in a series of recommendations by the Joint Legislative Audit and Review Commission (JLARC) for how to improve the Virginia Workers’ Compensation system. Earlier articles discussed executive recommendations and legislative recommendations. This article is a continuation of the legislative recommendations.
Legislative recommendations
Recommendations 21. The JLARC recommends that the Virginia General Assembly consider changing the Virginia Workers’ Compensation laws to address amending the criteria for establishing presumptions with respect to certain occupational diseases of first responders as follows:
- Total or partial disability – can be shown through wage loss, lost work time, or medical evidence
- Workers who seek only medical benefits should for a total or partial disability should only be required to submit medical evidence
Recommendation 22. The JLARC recommends that the state legislature consider amending the state workers’ compensation laws for certain occupations diseases of first responders to reduce the “years of service requirements from 12 years.” Right now, they must show continuous service of 12 years to be eligible for the disease presumptions.
Recommendation 23. The Virginia General Assembly should consider amending the current work injury laws so that the word “continuous” is removed from the years of service requirement part of § 65.2-402.c for first responders.
Option recommendations
The JLARC also recommends that the following options be considered by the Virginia General Assembly regarding amending § 65.2-402 of the Code of Virginia (the state’s workers’ compensation law):
- Option 1. “To add brain and testicular cancers to the list of cancers that are presumed to have been caused by firefighting.”
- Option 2. “To add colon cancer to the list of cancers that are presumed to have been caused by firefighting.”
- Option 3. “To specify that the presumptions for breast, colon, ovarian, and pancreatic cancers covered by the statute shall not apply to workers’ compensation claims submitted after June 30, 2030.” Prior to June 30, 2030, the state legislature could direct that there be a study of the latest national research to determine if there is an “association between firefighting and these cancers.”
- Option 4. “To require that workers’ compensation claimants have completed a minimum number of years of service as a firefighter or police officer, including any time spent in required training, to claim the cardiovascular disease presumption.”
Presumptive diseases and workers’ compensation
Presumptive disease laws, according to Business Insurance, have been in place in many states to help protect firefighters, police officers, and other first responders such as EMT personnel. The presumptions are used in occupational illness cases. Anyone who is hurt in a workplace accident has the general right to file a workers’ compensation claim provided that the accident caused their injuries, but occupational disease cases do not require a specific accident to have occurred.
Occupational disease claims are based on the premise that some workers are exposed to unique hazards at work that are beyond those to which the general public is exposed. Normally, workers have the burden of proof to show:
- That the occupational illness/disease was caused by conditions that are unique to the worker’s type of employment
- That the occupational illness was not a disease that a worker would generally develop in the same way the general public would develop the disease.
Unless the disease is one that is typically recognized in the case law and statutory law as an occupational disease, proving these two elements can be quite difficult. The presumption that a disease is occupational shifts the burden to the employer to show that the disease uniqueness and causation factors do not explain the worker’s illness. Otherwise, the disease is considered an “ordinary disease of life” and to be compensable, the injured worker must meet a standard of “clear and convincing evidence.”
Presumption laws in many states already help emergency personnel and other first responders by allowing for presumptions for heart and lung disease. Business Insiders says that there is push in many states to apply the presumption of compensability to other disorders such as:
- Mental health disorders such as post-traumatic stress disorder
- Many different types of cancers
The shift in presumptions is generally a balance argument. Employers argue that shifting the presumptions will increase their employer insurance costs. Opponents of expanding presumptions argue that public safety workers in some states have other types of occupational disease protections or that that emergency responders are trained to handle some of these disorders such as stress situations.
Advocates for firefighters, police officers, and other ER officers argue that the shift is only fair because these brave workers put their lives on the line every day. Opponents to expanding the presumptions argue that, “There’s greater scientific knowledge, but that doesn’t mean that it’s all attributable to the workplace, and municipalities are very vigorous in their opposition of expanding the costs of workers compensation.”
According to the International Association of Fire Fighters, over 40 states have some type of presumption allocation for public employees in the areas of heart and lung disease, cancer, infectious diseases, or mental health diseases.
“A 2013 study by the National Institute for Occupational Safety and Health found that firefighters have increased rates of cancer. That data has led to an influx of proposed cancer presumptions, said Jim Brinkley, Washington-based director of occupational health and safety at the International Association of Fire Fighters. Opponents argue that the scientific connections showing links between the workplace conditions and diseases are not strong enough yet.
As discussed in a previous article, although Virginia does have such presumptions in place for certain cancers amongst firefighters, Virginia has made the standards of proof difficult to meet in the event a firefighter should contract cancer, even listed cancers such as pancreatic cancer, since we have no idea what causes pancreatic cancer. That is why the JLARC has recommended a loosening of those standards for our first responders.
Virginia work injury attorney Joe Miller Esq. understands Virginia workers’ compensation law and keeps current with any changes. He understands that while many workers file claims based on workplace injuries, workers who spend a lot of time with an employer and become ill due to the type of work they do should also be able to demand workers’ compensation. For help with all workers’ compensation claims in Virginia, call Joe Miller, Esq., at 888-694-1671 or complete my online contact form to schedule an appointment. Cases are handled on a contingency fee basis.
