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First responder comp bills stall

Posted On: Oct. 1, 2018 12:00 AM CST

First responder comp bills stall

Frequent attempts to expand workers compensation benefits for first responders continue to stall in the face of concerns about the ultimate costs of providing such benefits and the challenges in proving causation of the injury or illness.

Boca Raton, Florida-based National Council for Compensation Insurance tracked 814 state bills in 2018 and found that 103 of them dealt with first responders battling post-traumatic stress disorder or cancer, but only five bills passed, according to a report.

Many state bills stall because actuaries and payers have no mechanism for calculating how much such reforms could cost, experts say, adding that cancer has a long latency period, as does post-traumatic stress disorder in some instances.

“All of this creates, in the mind of an insurance carrier, how do we price this? From an actuarial standpoint, how do we set aside money for this?” said Jim Kremer, Chicago-based executive director and lead of the claims transformation practice for Ernst and Young LLP. “That’s why you have a high fail rate for these bills.”

Yet 2018 proved successful in some states.

Washington and Florida both passed bills early this year that would allow first responders with PTSD to file workers compensation claims under certain circumstances such as how long the person has served as a first responder, according to NCCI.

As for firefighter presumption, Hawaii and New Hampshire revised or enacted presumption bills this year for firefighters battling certain types of cancer. New Hampshire also passed a law that calls for a commission to “study” PTSD in first responders to understand “whether such (a) disorder should be covered under workers’ compensation.” Most of the laws went into effect immediately after signing. Florida’s PTSD law was lauded a major success after three years of proposals to improve PTSD coverage for first responders in workers comp began emerging in the state.

The trend of introducing bills will continue, despite the unknown costs and the question of whether cancer or PTSD was caused by the first responder’s work rather than another factor, insurance industry experts say.

“I do believe that PTSD and cancer presumptions bills for first responders will continue to be introduced and discussed,” Cari Miller, Rolling Meadows, Illinois-based director and counsel for governmental affairs at Gallagher Bassett Services Inc., said in an email. “Already over 30 states have some type of cancer coverage for firefighters under workers compensation, and PTSD presumption bills will continue to gain momentum with the continued increase of mass shootings and catastrophe events.”

“You will see states loosening their comp laws,” said John Hanson, an Atlanta-based senior consultant with Willis Towers Watson PLC. “The primacy hurdle is the ability to estimate with accuracy the fiscal impact of the legislation. The vast majority of the legislation that is proposed… makes clear that the fiscal impact is difficult to ascertain.” Few actuarial experts know the costs of such bills, which have been opposed by municipalities concerned about the potential for their costs to run in the “hundreds of millions of dollars,” according to a statement released in January 2018 by the Parsippany, New Jerseybased Municipal Excess Liability Joint Insurance Fund in its lobbying against S.B. 716, a firefighter cancer presumption bill that floundered in committee in New Jersey.

New Hampshire’s legislation tackled the financial issue, as lawmakers passed the state’s firefighter cancer presumption bill 28 years after the state’s Supreme Court ruled the previous presumptive cancer law unconstitutional.

That 1990 ruling highlighted New Hampshire law that prohibits state mandates on municipalities without a funding mechanism.

The new law now includes a “surcharge” on insurance policies, with an “indeterminable” increase in costs, which Mr. Hanson said poses costs for payers. “New Hampshire uses ‘indeterminable’ three times,” he said of the law now in effect.

Putting a dollar amount on the presumption bills is not feasible, given that “many of the occupational diseases typically included in proposals providing presumptive coverage to first responders have long latency periods,” said Bruce Spidell, a Boca Raton-based assistant actuary with NCCI who tracks the bills.

“Therefore, it may take several years before claim activity associated with first responder occupational diseases emerge in the data available to NCCI.”

At least one jurisdiction has been keeping track of its own claim activity. Ohio, a workers compensation monopoly state, enacted a law concerning cancer presumption for firefighters in 2017.

The state’s actuaries have estimated the new law will cost $8 million in claims per year, according to a spokeswoman with the Ohio Bureau of Workers’ Compensation. As of September, 80 claims were filed and 57 were accepted, according to the spokeswoman.

Meanwhile, an official with the American Insurance Association said the numbers — or lack thereof — have not swayed state lawmakers from introducing such bills, and that payers should worry that they might be paying for injuries that fall outside of workers comp.

“We have a lot of respect and admiration for police and firefighters who respond to tragic incidents,” said Steven Bennett, Washington-based associate general counsel with the American Insurance Association. “That said, we do not like there to be presumptions because the claimant should always have the burden of proof to prove injury is work-related … claimant must show that it arose in the course and scope of employment (as) it is one of the bedrock principles” of workers compensation.