Am I telling you something that you don’t know? Whether you are a young firefighter just starting your career or a well-seasoned veteran winding down, you’ve probably been told numerous times that you are at risk for a variety of cancers due to carcinogenic exposure during your career. When you start the job, you learn of the hazardous materials and substances you may come into contact with and you are told to document and journalize those exposures.
As science and medicine have progressed through the years, your department is taking greater precaution to limit those exposures. Most departments like LA City have installed vent systems to take the diesel exhaust out of the station rather than allow it to accumulate in your work and living space. While these systems are helpful, they do not eliminate all exposure.
There have been many studies performed over the years attempting to establish a link between certain exposures and various cancers. The studies have demonstrated that firefighters are at a greater risk for developing certain cancers. Now, a new study published in April 2015 in the American Journal of Industrial Medicine goes ever further and confirms that all male firefighters, including Caucasian, Black and Hispanic, are at the same high risk of developing certain cancers including non-Hodgkin lymphoma, leukemia, testicular cancer, bladder cancer, melanoma, and prostate cancer.
The study recognized that firefighters are often exposed to known carcinogens in their work. While the use of a self-contained breathing apparatus can eliminate or decrease respiratory exposure to toxic particles during firefighting, SCBA’s are not always worn, especially during overhaul. And even when they are worn, firefighters can absorb combustion products through the unprotected skin on their neck.
Several combustion products are classified by the International Agency For Research on Cancer (IARC) as carcinogenic to humans, and firefighters come into contact with these products on a daily basis. The most common is diesel exhaust and the particulates it produces. Other products include benzene, formaldehyde, and by products of newer building materials such as laminated veneer lumber and assorted plastics.
So now you have a reputable journal telling you what you probably already knew . . . you are at a greater risk than the normal working person in contracting some form of cancer. What happens if you do contract cancer? What if the cancer occurs after you have retired or left the job? Can you pursue a claim through workers’ compensation and if so, how long do you have to do it?
Most of you know that the legislature has recognized for years that your job is dangerous. As such, they have passed legislation over the years that make certain injuries “presumed” industrial, one of which is cancer. Does that mean if you contract cancer it is “automatically” accepted as a work related injury? Not quite, and many employers still fight cancer claims despite the “cancer presumption.”
In order to receive workers’ compensation benefits which include IOD pay, medical treatment and permanent disability, you must prove your injury arises out of and occurs during the course and scope of your employment. A legal “presumption” makes that proof easier for you. If you establish the criteria for a presumption, it shifts the burden of proof to the employer to prove your condition is not job related. That is a very difficult burden to overcome.
To trigger the cancer presumption, you must establish the following: 1) you are or were a firefighter, 2) you have cancer with the primary site of the cancer being identified, 3) you were exposed to a known carcinogen as defined by the IARC, and 4) the cancer developed or manifested itself during the time you were employed as a firefighter or within a certain period of time from your last work as a firefighter. The presumption is extended from your last day of work for a period of three months for each year of service. In other words, if you worked 20 years, then the presumption would extend 60 months or five years from the last day of work. Thus, if your cancer developed or manifested itself within five years from the last day of work, the presumption would apply. The maximum extension of the cancer presumption is 120 months (10 years) from the last day of work, but that would require you had worked 40 years as a firefighter.
The presumption is not a statute of limitations. The presumption is a legal concept that affects the burden of proof. Because cancers often don’t show up (manifest) or develop for years after exposures, the legislature saw fit to extend that presumption past your last day of work thereby making it easier for you to prove it is job related. The presumption has nothing to do with the statute of limitations, which is the time limit within which you must file your claim.
The statute of limitations in a workers’ compensation matter is complex and beyond the subject of this article. Once you have knowledge that your cancer may be job related, you must act quickly and contact an attorney who specializes in this area.
I have seen many cases where the firefighter files a timely claim for cancer (within one year from the date of knowledge) yet the cancer presumption may not apply because the cancer developed or manifested itself well after the extension applies. That does not mean all is lost. It simply means the presumption affection the burden of proof doesn’t apply and it will be more difficult to connect the cancer with the job. However, studies like the one just published will have that much more importance in those types of cases.
Dealing with cancer is a horrible burden on the firefighter and his/her family. Trying to deal with workers’ compensation on your own at the same time is equally burdensome. Don’t listen to someone who tells you “the City will pick it up as it is automatic.” Don’t listen to someone who tells you that you have plenty of time to file your claim or that you don’t even have a valid claim. Speak with someone who is knowledgeable in this area. If you have an injured shoulder that may require surgery, you don’t go to your family doctor. You go to an orthopedic surgeon who specializes in shoulders. The same holds true when you are given the news . . . you have cancer. Talk with an experienced attorney who can advise you if and when you should pursue workers’ compensation. You have nothing to lose and everything to gain.
In the meantime, be healthy and safe.
by Robert J. Sherwin
Lewis, Marenstein, Wicke, Sherwin & Lee