The New Jersey Assembly is considering a bill which would create presumptions that cancers and other medical conditions experienced by public safety workers are work related. New Jersey already has laws creating presumptions in favor of compensability for firefighters and certain public safety workers in regard to respiratory conditions, heart attacks and strokes. The new bill under Assembly, No. 1196, would create an entirely new category of presumptions. Costs for employers and taxpayers could be tens of millions, if not hundreds of millions, of dollars over time.
One of the provisions of the bill pertains solely to firefighters and states, “Any injury, illness or death of a firefighter which may be caused by cancer, including leukemia, shall be presumed to be an occupational disease compensable . . . if the firefighter has completed not less than five years of services as a firefighter.” This provision would apply to any cancer whatsoever at any time in the life of the firefighter. Firefighters with less than five years of service would fall in the following provision:
Any injury, illness or death of a public safety worker which may be caused by exposure to a known carcinogen, cancer-causing radiation or a radioactive substance, including cancer and damage to reproductive organs, shall be presumed to be compensable . . . if the worker demonstrates that he was exposed, due to fire, explosion, spill or other means, to a known carcinogen, cancer-causing radiation or radioactive substances in the course of the worker's employment as a public safety worker.
This provision applies to all public safety workers and is not limited to those with five years of service. The word “may” is important in the first sentence. All of the provisions in the bill use “may” instead of “is” caused by cancer. The use of the word “may” creates some confusion over the need for a clear medical diagnosis and also suggests that the worker does not have to offer any scientific proof that a specific cancer (prostate cancer, for example) has actually been proven to be work related. The diagnosis appears to be enough. This provision suggests that prostate cancer, the second leading cause of death in American men, would be presumed to be compensable if diagnosed in a public safety worker.
The bill allows the employer to rebut the presumption but only with “clear and convincing proof” to the contrary. This “clear and convincing proof” standard is new. The current law in N.J.S.A 34:15-43.2 concerning respiratory diseases uses the standard for rebuttal “by satisfactory proof.” The “clear and convincing proof” standard would make it extremely difficult for an employer to defeat any cancer-related claim.
One of the more confusing provisions of the bill attempts to create a presumption of compensability in favor of public safety workers who suffer injury or death in responding to a catastrophic emergency. Unfortunately, the language of this section is so meandering that it is difficult to tell what the drafters intend:
There shall be a presumption that death, injury and disability, including disability arising from post-traumatic stress disorder, and all treatment, including psychological and social counseling and care, are compensable for the purposes of chapter 15 of Title 34 of the Revised Statutes if the death, injury or disability arises from the physical or psychological impact of stress or injury experienced by a public safety worker engaged in a response to a terrorist attack, epidemic, or other catastrophic emergency, whether or not a state of emergency was declared, in which the worker is exposed to pathogens or biological toxins used in, or related to biological warfare or epidemics, hazardous chemicals or materials used in, or related to, chemical warfare, or cancer-causing radiation or radioactive substances, or witnesses death and suffering of a magnitude sufficient to cause significant psychological trauma, whether or not the catastrophic emergency was caused by terrorist attack.
There are a number of problems with this particular provision. A first reading might suggest that the public safety worker must prove exposure to toxins or chemicals related to biological warfare for the presumption to apply. But the word “or” is included as noted by the language in bold (note, this is not bolded in the actual text). That word suggests that there is a presumption of compensability if the worker witnessed death that caused psychological trauma.
The other problem concerns the language “if the death, injury or disability arises from the physical or psychological impact of stress or injury” (also bolded above, but not in the actual text). This is tautological. In essence, it says that the death or injury shall be presumed to be work related if the death or injury is work related.
The bill is worthy of a great deal of study since its impact on workers' compensation benefits and premiums will be enormous. New Jersey law already allows a claimant to file an occupational disease claim for a condition that manifests many years later so long as the claim is filed within two years from when the claimant is diagnosed with the condition and believes it to be work related. A common example is a claim petition for pleural mesothelioma by a former asbestos worker. There is a long latency period for this disease, so claims are often filed 20 or 25 years after last exposure. Science clearly links pleural mesothelioma with exposure to asbestos, making compensability a relatively easy issue for the court to address. Yet there is no statutory presumption of compensability currently in the law.
This bill relies on no science whatsoever in making every cancer among public safety workers likely compensable and substitutes a presumption of compensability in lieu of legal proof. It also prevents employers from overcoming the presumption by requiring “clear and convincing proof,” a standard nowhere else seen in the New Jersey Workers' Compensation Act.
As written, the proposed bill would create massive future exposure for public employers and taxpayers since cancer is rated as either the first or second leading cause of death for Americans, depending on the study and group.
John H. Geaney, a shareholder with Capehart Scatchard, began an email newsletter entitled Currents in Workers' Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates. His blog may be read at http://www.njworkerscompblog.com.