Tallahassee, FL (WorkersCompensation.com) - In a typical workers' compensation claim, the burden of proving that the injury was work-related lies with the claimant. For Florida firefighters who are diagnosed with a few specific types of cancer, the burden of proof is about to shift to the employer.
On Jan. 27 of this year, a Florida Senate committee unanimously approved Bill 158. Section 2(a) of the bill reads as follows:
Any condition or impairment of the health of a firefighter employed full time by the state or any municipality, county, port authority, special tax district, or fire control district which is caused by multiple myeloma, non-Hodgkin's lymphoma, prostate cancer, or testicular cancer and results in total or partial disability or death is presumed to have been accidental and to have been contracted in the line of duty unless the contrary is shown by competent evidence.
In other words, there will be a presumption that firefighters who are diagnosed with these types of cancer contracted the disease as part of their job. “The presumption is intended to operate so as to help the first responder bridge the gap where medical science falters somewhat,” George Kagen said in an email to WorkersCompensation.com. Kagen is a partner in the law firm of MKRS Law and a recognized expert in Florida workers' compensation law.
The government entity that employs the affected firefighter can attempt to prove via “competent evidence” that it was not work-related. According to Kagen, however, the evidence would need to show “such a clear-cut non-employment cause for the given condition exists, that it would essentially be an unfair windfall to invoke the presumption.”
Certainly not an easy task that is further complicated by the “shifting interpretations emanating from trial and appellate courts given the very absence of precision in this area of medicine,” said Kagen, adding that “these are the rocks and shoals on which numerous claims and defenses are wrecked.”
In order to qualify for this presumption, the firefighter needs to meet certain requirements outlined in Section 2(a) 1-4 of the bill. They are as follows:
1. Must have successfully passed a physical examination administered before the individual began service as a firefighter and which failed to reveal any evidence of such a health condition;
2. Must have been employed as a firefighter with his or her current employer for at least 5 continuous years before becoming totally or partially disabled or before his or her death;
3. Must not have used tobacco products for at least 5 years before becoming totally or partially disabled or before his or her death; and
4. Must not have been employed during the preceding 5 years in any other position that is proven to create a higher risk for multiple myeloma, non-Hodgkin's lymphoma, prostate cancer, or testicular cancer. This includes any other employment as a firefighter at another employing agency within the preceding 5 years.
If no physical was performed at the time of the firefighter's hire or immediately thereafter, the presumption stands assuming the other requirements are met.
The bill is not yet law as has not been voted on by both houses of the Florida legislature or signed by the governor. However, “given the universal empathy for the work of at least the more front-line first responders, it is difficult for someone to stand up and ‘oppose' legislation favoring them where there is even a chance of an adverse consequence stemming from their work,” Kagen said.
Several other states have legislation pending that would essentially provide the same presumption to firefighters as the Florida bill. Practitioners need to be aware of these types of laws and regulations to advise their clients properly.