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States consider expanding workers comp presumption law for public employees

States consider expanding workers comp presumption law for public employees

Recent tragedies and medical research have prompted several states to consider expanding their workers compensation presumption laws for public employees.

Presumption laws in many states have long granted workers comp benefits for firefighters, police officers and other first responders who develop heart and lung disease and who, by law, are presumed to have developed the diseases because of their work.

Sources say a push to cover mental health conditions, such as post-traumatic stress disorder, developed after the December 2012 shooting at Sandy Hook Elementary School in Newtown, Connecticut, and the July 2012 theater shooting in Aurora, Colorado.

Meanwhile, studies that have found higher cancer risks for firefighters and other first responders also back efforts to increase cancer presumptions under state workers comp laws.

While such benefits aid public safety workers, public employers are concerned that expanded presumption laws increase their workers comp costs for conditions that could have developed outside of work.

“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,” said Peter Burton, Wayne, Pennsylvania-based senior division executive for state relations at NCCI Holdings Inc.

At least seven of the 160 workers comp bills enacted in 2013 involved presumptive disability benefits for public employees, and at least three states passed mental health presumptions for first responders, according to the National Conference of State Legislatures. Other states added presumptions for certain types of cancer and infectious diseases, or extended coverage to volunteer and emergency services workers.

According to the International Association of Fire Fighters, more than 40 states have some type of presumption that protects public employees from occupational diseases, such as heart and lung disease, cancer, infectious diseases or mental health problems.

“Risk managers understand that firefighters have a challenging job and are sometimes in dangerous conditions, but risk managers are also concerned about the high cost, or the potential cost of presumption laws,” said Scott Moss, property/casualty trust director of Citycounty Insurance Services in Salem, Oregon. “It's a balance.”

“Our actuary required additional funding when the (Oregon) cancer presumption law passed (in 2009),” Mr. Moss said of the pool that represents 350 cities and counties in Oregon. “So we do have to charge members more than what we used to for the presumption exposure.”

Some opponents of expanded presumption laws want to more clearly define what's meant by “unusual” or extraordinary” events when it comes to first responders, said Mark Walls, St. Louis-based workers compensation market research leader of Marsh L.L.C.'s Workers' Compensation Center of Excellence.

First responders are trained to react to stressful circumstances they might encounter as part of their duties and it might be inappropriate to presume that they would suffer from post traumatic stress, he said.

That was a concern for some legislators in Connecticut, where a bill that would have provided mental health coverage to first responders failed in the wake of the Sandy Hook shooting.

What blurs the lines further is that public safety workers in some states have occupational disease protection outside the workers comp system, said Ann Gergen, managing director of the Association of Government Risk Pools.

For example, Pennsylvania provides “physical and psychological first aid” to police officers and other personnel involved in shootings, according to the International Association of Chiefs of Police in Alexandria, Virginia.

Connecticut lawmakers now are considering a similar bill that would “expand workers compensation coverage to individuals suffering from post-traumatic stress disorder as a direct result of witnessing the death or maiming of another human being” due to intentional acts of violence, according to the Connecticut General Assembly website.

Just as Sandy Hook increased mental health awareness and led states to consider new legislation, 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.

“There's a lot more knowledge of how these unsafe work conditions that various people operate in can cause cancer over an extended period of time,” the NCCI's Mr. Burton said.

Experts said opponents argue that the evidence is inconclusive about work-related cancer, citing a 2009 study by the Washington-based National League of Cities that, after examining about 70 other studies from 1995-2008, concluded firefighters don't have a higher risk of cancer.

Evidence that links - or doesn't link - certain occupational diseases to firefighters, police officers and emergency services workers is no match for politics when it comes to workers compensation, Mr. Burton said. In the end, presumptive disability laws often depend on the political climate of each state, he said.

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