New firefighter benefits stoke workers' comp debate

Md. law presumes many cancers are job-related for firefighters

  • Howard County firefighter John Orth was diagnosed with cancer in May 2012 at age 44. He blames the disease on chemicals he was exposed to on the job.
Howard County firefighter John Orth was diagnosed with cancer… (Algerina Perna, Baltimore…)
February 22, 2014|Scott Calvert and Luke Broadwater, The Baltimore Sun

Mary McElroy gave 22 years to the Baltimore City Fire Department as a firefighter-paramedic. The job, she says, gave her breast cancer.

The state Workers' Compensation Commission agreed, issuing an order last fall that requires the city to cover any cancer treatments she may need for the rest of her life. She could also get tens of thousands of dollars from the city for permanent physical damage attributed to the disease.

Now the city is challenging that award in Circuit Court, focusing on a recent change in state law that has made it easier for the 52-year-old McElroy and other Maryland firefighters to receive often-substantial workers' compensation benefits.

The dispute spotlights a high-stakes debate over a law that presumes certain cancers are related to fighting fires. Firefighters say the provisions — which can lead to awards exceeding $500,000, including medical bills — rightly reflect the fact that they can encounter dangerous fumes and chemicals on the job.

But governments like Baltimore's, which spent $49 million last year on workers' compensation, call the law unreasonably generous and too difficult to challenge in hearings or in court. Officials also point to recent research from the National Institute for Occupational Safety and Health that casts doubt on whether there is a link between firefighting and most of the cancers listed in Maryland's law.

State Sen. Katherine Klausmeier, a Baltimore County Democrat who chairs an oversight committee on workers' compensation, acknowledges the difficulty of finding a middle ground.

"You got emotion, you got science and you got politics all involved in this issue," she said. "You're trying to balance all three of those things, and it gets a little hairy sometimes."

Maryland law has given firefighters with certain cancers special protections since 1985.Such laws are common nationally: More than 30 states offer similar cancer presumptions for firefighters.

Local governments in Maryland worry that the protections keep expanding — and will significantly drive up workers' compensation costs. For example, in 2012 the General Assembly changed state law to add a presumption that any veteran firefighter's breast cancer is work-related due to exposure to carcinogens such as benzene. The same revision added four other cancers to the law: brain and testicular cancer, multiple myeloma and non-Hodgkin lymphoma.

In all, nine cancers and lung disease are now deemed occupational hazards for Maryland firefighters with at least 10 years on the job.

Firefighters, like police officers, also have long enjoyed a legal presumption that hypertension and heart disease are due to job-related stress rather than lifestyle or heredity. This year the General Assembly is considering legislation to extend that benefit to state corrections officers.

A similar provision of state law applies to Lyme disease for employees of the Department of Natural Resources and the Maryland-National Capital Park and Planning Commission.

Such legal presumptions can be crucial to the outcome of workers' compensation cases because they flip the burden of proof. With a typical claim — a slip, fall or car accident — the employee must prove that the injury was job-related. But in a claim based on a presumption, the government has the burden of proving that the job did not cause the disease.

Government officials complain that they rarely win presumption cases, despite documenting an individual's risk factors, including smoking, obesity or family history. Chesapeake Employers' Insurance Co., which handles workers' compensation for state government and many municipalities, has paid $10 million for all police and fire presumption claims since fiscal 2009.

Mounting a challenge is difficult, even if a firefighter with lung disease was a heavy smoker for years, said Douglas Kerr, the city's risk manager. "He's a firefighter. That's all that matters under the law with the presumption."

Presumption claims from firefighters and police have cost the city, on average, about $500,000 a year since 2009, city figures show. The city is self-insured, meaning taxpayers cover all such costs.

Kerr said those costs could balloon with the recent expansion of state law, and state legislative analysts have cautioned that the financial impact on local governments could be "significant."

Though an employer can offer evidence to rebut presumptions, in practice they are nearly impossible to overcome, said Les Knapp, legal and policy counsel for the Maryland Association of Counties. The best a lawyer for the government can usually do is show that the employee had the condition before being hired or that the cancer has not yet disabled the employee.

R. Karl Aumann, chairman of the Workers' Compensation Commission, said while a presumption claim can be defeated, "there's no question it's difficult."

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