The Pennsylvania Firefighter Cancer Presumption Law: Two Years Later

On July 7, 2011, the Pennsylvania Workers' Compensation Act was effectively amended to include what is sometimes referred to as the Firefighter Cancer Presumption Law. Under the new law,  firefighters suffering from cancer are entitled to a presumption that the cancer is work-related.  

To be eligible for the presumption, the firefighter must have served for four or more years in continuous firefighting duties, and establish direct exposure to a carcinogen that is recognized as a Group 1 Carcinogen by the International Agency for Research on Cancer. Additionally, prior to asserting his workers’ compensation claim, the firefighter was required to have successfully passed a physical examination that found he was free of the condition of cancer.  

The law, which also applies to volunteer firefighters who meet certain similar conditions, provides the prescription of causation can be rebutted by substantial competent evidence that shows the firefighter's cancer was not caused by the occupation of firefighting (i.e. tobacco use, family history, non-occupational exposures).  

Additionally, it extends the period within which the firefighter can file a claim for the occupational disease of cancer.  Specifically, the new law extended the period from 300 weeks to 600 weeks; the resumption of causation, however, applies only to claims raised within the first 300 weeks after the last occupation.

Interestingly, the legislative history reveals that an original draft of the law provided for the presumption to be rebutted by the burden of proof of "beyond a preponderance of the evidence." It was amended to provide for a standard of proof characterized as substantially reasonable competent evidence, which was then said to be consistent with existing workers' compensation law.  

"Substantial competent evidence" in the workers' compensation arena constitutes "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." As a practical matter,  many believe that workers' compensation judges and appellate tribunals will treat the "substantial evidence" burden of proof as synonymous with the "preponderance" burden of proof.  

Now that nearly two years has passed since its effective date of July 7, 2011,  municipalities across the Commonwealth have experienced some rather significant and perhaps unanticipated consequences.  Various trade and professional journals have reported a rise in the filing of claim petitions, while some insurance carriers have simply ceased providing coverage for volunteer firefighters. If a volunteer fire company is dropped by a conventional private insurance company, the municipality can seek coverage through the State Workers' Insurance Fund. Moreover, some municipalities are also reporting an increase in workers' compensation coverage costs, and are now beginning to receive decisions in claim petitions previously filed after the effective date of the law.  

In an effort to address the consequences of the new law, it has been suggested that municipalities and fire departments institute programs requiring routine medical examinations that involve cancer screenings. Other suggestions involve heightened use of personal protective equipment, more safety training, and more detailed documentation regarding the circumstances, time, duration and concentration of exposures to carcinogenic materials.

Despite what some may view as unintended consequences of the Firefighter Cancer Presumption Law, it is unlikely the legislature will engage in any meaningful effort to address these consequences through additional amendments.  

As a result, municipalities, fire departments and insurance carriers will be subject to the presumption and its effects while simultaneously attempting to seek relief from the legislature, and protect and reduce the negative effects of the law and number of claims through the use of routine cancer screenings, increased personal use of personal protective equipment and better recordkeeping.

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