Workers Compensation Debate over Firefighter Cancer Presumptions

Mary McElroy has been a firefighter-paramedic for the Baltimore City Fire Department for 22 years.  Ms. McElroy contends that the job gave her breast cancer and the Maryland state Workers\’ Compensation Commission agreed, issuing an order last fall that requires the city to cover any cancer treatments she may need for the rest of her life”.  The City of Baltimore is now challenging that award in Circuit Court because of a recent change in state law that has made it easier for McElroy, 52, and other Md. firefighters to receive very large workers compensation benefit awards.

The debate centers around a workers compensation law that certain cancers can be linked to exposure to toxins while fighting fires and can lead to massive settlement awards in excess of half a million dollars.  Baltimore is crying foul because they say it is too hard to prove and the awards too excessive.  Attorneys for the city point to NIOSH (National Institute for Occupational Safety and Health) research that shows very little if any link between firefighting and the type of cancers listed in Md. State law.  Since 1985, Maryland law gives firefighters with certain types of cancer special protections.  These laws are fairly common nationally with more than 30 states offering similar “cancer link presumptions” for firefighters.  Maryland officials, passionate about the health and safety for their firefighters, are still worried that the unchecked expansion of health protections will significantly drive up workers compensation costs.

Such legal presumptions can be crucial to the outcome of workers\’ compensation cases because they place the burden of proof on the government to show that the disease was not caused by the workplace.   Unlike a typical claim such as a slip and fall or car accident where the employee has to prove that the injury was related to the job.  

Local governments in Maryland worry that the protections keep expanding — and will significantly drive up workers\’ compensation costs. For example, in 2012 the General Assembly changed state law to add a presumption that any veteran firefighter’s breast cancer is work-related due to exposure to carcinogens such as benzene. The same revision added four other cancers to the law: brain and testicular cancer, multiple myeloma and non-Hodgkin lymphoma.  In all, nine cancers and lung disease are now deemed occupational hazards for Maryland firefighters with at least 10 years on the job.

Firefighters, like police officers, also have long enjoyed a legal presumption that hypertension and heart disease are due to job-related stress rather than lifestyle or heredity. This year the General Assembly is considering legislation to extend that benefit to state corrections officers.

Government officials complain that they rarely win presumption cases, despite documenting an individual\’s risk factors, including smoking, obesity or family history.  Mounting a challenge is difficult, even if a firefighter with lung disease was a heavy smoker for years. 

Though an employer can offer evidence to rebut presumptions, in practice they are nearly impossible to overcome, said an official for the Maryland Association of Counties. The best a lawyer for the government can usually do is show that the employee had the condition before being hired or that the cancer has not yet disabled the employee. 

For now, the debate will continue on the subject of cancer “presumptions” for public servants.

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