The Details Behind the JLARC study on Virginia Firefighters and Presumptions

Posted on Saturday, March 21st, 2020 at 2:18 pm    

The JLARC’s review of Virginia’s workers’ compensation laws focused on a variety of issues including the relationship between firefighting and 10 different types of cancer to determine what presumptions should apply. They study was performed by epidemiologists at Johns Hopkins University’s Bloomberg School of Public Health

We discussed some of these issues in a previous article. The general findings of the study were as follows:

  • Current presumptions. 40 states have presumptions for firefighting and cancer. 34 states have presumptions for firefighting and heart disease. 15 states have presumptions for law enforcement and heart disease.
  • Virginia’s current presumptions for first responders:
    • Cancer. There are presumptions for breast, leukemia, ovarian, pancreatic, prostate, rectal, and throat cancer
    • There are proposed exemptions, as of 2019, for brain cancer, colon cancer, and testicular cancer
    • There was another proposed exemption for post-traumatic stress syndrome (PTSD)
    • Cardiovascular disease
    • Respiratory disease. Workers generally don’t’ seek to establish this presumption.
    • Infectious disease. Workers generally don’t seek to establish this presumption.

83 studies on cancer, heart disease, respiratory disease, and PTSD among firefighters and police officers were analyzed and evaluated for quality and bias.

The findings of the John Hopkins University study

The epidemiologists made the following findings regarding the validity of Virginia’s current and proposed cancer presumptions:

Johns Hopkins University epidemiologists determined that the best available evidence provides some support for most of Virginia’s current and proposed cancer presumptions.

  • Firefighters are exposed to carcinogens. Firefighters can’t fully avoid exposure to these carcinogens – even when they are wearing protective gear.
  • Every type of fire releases toxic and carcinogenic substance
  • To what extent firefighters are exposed to these carcinogens depends on many factors. The main exposure routes are inhaling these toxins and skin absorption of the carcinogens.

The study found that the firefighters had an increased risk of the following types of cancer:

  • Prostate cancer
  • Throat cancer
  • Brain cancer (proposed in 2019)
  • Leukemia
  • Rectal cancer
  • Testicular cancer (proposed in 2019)

The Johns Hopkins study did not have enough evidence on the following cancer types:

  • Colon cancer (proposed in 2019)
  • Pancreatic cancer
  • Breast cancer

No research was done on ovarian cancer. This is interesting, since pancreatic cancer and breast cancer are specifically listed in VA Code 65.2-402 ( C ) among those cancers to be presumed to be an occupational disease. As mentioned in a previous article on this subject, the mention of pancreatic cancer is inherently contradictory since it is really impossible to know what caused any pancreatic cancer based on our current state of scientific knowledge. 

Cancers which should be added to the firefighter presumption lists

The JLARC report, based on the John Hopkins study, recommended that worker’s compensation laws in Virginia create presumptions for the following cancer types:

  • Brain cancer
  • Testicular cancer

The reports added that colon cancer could be added to the list though the evidence for adding it wasn’t as strong as the other two cancer types.

Recommendations by the JLARC regarding current cancer presumptions for firefighters

Current cancer presumptions which should be maintained or could be subject to a sunset provision depended on the following:

  • “Better data on firefighting-cancer associations will be available after new National Firefighter Registry is fully implemented.”
  • “The General Assembly could maintain all current cancer presumptions in statute, including those with less scientific evidence, but add a sunset provision. Cancers with weaker scientific evidence to support occupation-disease associations could be removed if new scientific evidence does not increase support for including them.”

Costs for adding the three extra cancer presumptions – brain cancer, testicular cancer, and colon cancer

Enactment of Virginia House bill 1804 (which adds several cancer presumptions) for firefighter should result in just about six new compensable workers’ compensation claims yearly – though the five year total is expected to be high.

  • Insurance premiums for workers’ compensation for firefighters are expected to rise $269 in the first year.
  • The insurance premium for the Line of Duty Act (LODA) are expected to rise $61 “per FTE in the first year.”

“Some additional liability would be created for firefighters no longer working with an employer and still within statute of limitations.”

Additional JLARC firefighting presumptions

The JLARC also found that the “requirements to establish cancer presumptions for firefighters are unreasonably burdensome and appear counter to the purpose of the presumption.” This is the same comment I had made in my previous article on this subject

Most disputed claims by firefighters for Virginia workers’ compensation benefits – between 2019 to 2018 – found that the firefighter would not be entitled to benefits – in large part because of the failure to prove exposure to the right substance.

Of the 20 firefighter/cancer cases heard during that timeframe:

  • 13 (65%) did not prove toxic exposure or a disability resulting from the cancer and denied benefits
  • 4 (20%) were denied benefits for other reasons
  • 4 (20%) did meet the occupational illness requirements and were awarded benefits

The “presumption covers firefighters who have had “contact with toxic substance encountered in line of duty.” A big part of the reason for these denials was that firefighters were required to “prove exposure to specific carcinogen suspected to cause their particular type of cancer.”  “Of 16 cases heard by VWC in which firefighters did not meet all requirements, the firefighter did not meet the toxic exposure requirement in seven.”

The Johns Hopkins scientists found that:

  • “Documenting exposure to carcinogens is extremely difficult and costly. Virginia firefighters are not equipped with technology to measure exposure” because the technology is expensive and requires expertise.
  • The strict requirements are “counter to the purpose of presumption, which is to relieve firefighters of need to prove work caused their disease.”

The study found that it would be sufficient if firefighters were required to show exposure to hazardous conditions that, in turn, exposed them to carcinogens.

Another finding by the JLARC study was that Virginia’s requirement for 12 years of continuous service was not supported by scientific evidence (studies have shown that less service time could cause cancer) and was the highest in the country (the next highest was 20 years). In fact, there is case law that says that assuming there is sufficient proof that a firefighter has a type of cancer caused by exposure to known cancer-causing toxins that match up to that cancer, he or she need only prove ONE SINGLE EXPOSURE to a fire to prove there was sufficient exposure.  In that context, the 12 continuous years of service makes little sense. 

Virginia workers’ compensation lawyer Joe Miller Esq. has been fighting aggressively for injured workers and workers who suffer occupational illnesses – for more than 31 years. He understands how dangerous firefighting, policing work, and other types of first response work are. For help with any illness claim based on your work, please phone Joe Miller, Esq., at 888-694-1671 or use my online contact form to speak with a strong advocate.