Tough to fight cancer claimsPosted On: Apr. 3, 2023 12:00 AM CST
Rebutting firefighter cancer presumptions can be difficult for employers, many of which are self-insured and face difficulties in proving toxic exposures did not cause a firefighter’s cancer.
In early March, the Fifth Circuit Court of Appeal in Louisiana determined that the state’s Office of Worker’s Compensation was wrong to dismiss a claim by a veteran firefighter who sought comp benefits after being diagnosed with lymphoma.
The firefighter alleged his diagnosis of the rare form of cancer was tied to his firefighting activities during the past three decades.
The appeals court ruled that the employer did not offer sufficient evidence to rebut the presumption under state comp law that the firefighter’s cancer is an occupational disease.
The ability for an employer to rebut cancer presumptions in firefighter workers compensation cases varies depending upon jurisdiction.
In Pennsylvania, a 2018 state Supreme Court ruling that serves as controlling case law set the burdens of proof in such cases and made it more difficult for employers to rebut cancer claims.
“Let me put it this way, you can try (to rebut),” but employers will likely lose, said Paul Cornell, director of trusts for PennPRIME, a municipal insurance pool.
“Either you got (cancer), or you don’t, and if you’ve got it, you’re covered,” he said.
Greg Jakubowski, senior fire protection engineer with Breinigsville, Pennsylvania-based Buckeye Partners, said cancer can have a long latency period, and firefighters exposed to carcinogens during years on the job might not develop the disease until years later.
Because of this, Mr. Jakubowski said he understands why insurers might question whether a cancer diagnosis relates to firefighting activity or other lifestyle choices, especially since rebutting cancer presumptions for first responders like firefighters is a high burden to overcome for Pennsylvania employers.
“I get the insurance company perspective saying, ‘why should we have to pay. The guy smoked for 20 years, it’s his own fault,’” he said.
Still, most states have a process for employers to rebut presumptions, and injured employees still must show that their cancer was tied to work-related activities and not lifestyle choices, like smoking.