In the wake of 9/11, the Texas Legislature took steps to recognize the difficulties firefighters and emergency medical technicians have in proving work-related cancer. As a result, the Texas Legislature passed what is known as the “Cancer Presumption” or Section 607.055 of the Texas Government Code, which states that if a firefighter or EMT suffers from cancer resulting in death or partial disability, that cancer is presumed to be in the course and scope of employment if:
- The firefighter or EMT:
- regularly responded on the scene to calls involving fires or fire fighting; or
- regularly responded to an event involving the documented release of radiation or a known or suspected carcinogen while the person was employed as a firefighter or EMT; and
- the cancer is known to be associated with fire fighting or exposure to heat, smoke, radiation, or a known or suspected carcinogen as determined by the International Agency for Research on Cancer (IARC).
The following cancers are cancers that are known to be associated with fire fighting or exposure to heat, smoke, radiation or a known or suspected carcinogen, that we know of at this time:
- Lung & Bronchus
- Kidney & Renal
- Non-Hodgkin Lymphoma
- Multiple Myeloma
The rationale for this law should be obvious. Firefighters and EMTs at the scene of a fire are exposed do all manner of carcinogens in the air. It is taken as a badge of honor amongst firefighters to come back from a fire covered in soot and grime. But this same soot and grime gets into the body through the pores in the skin and through the lungs in the air that is breathed. It would be next to impossible for a firefighter to pinpoint exactly what exposure, on what specific day, led to the development of cancer. That is an impossible evidentiary hurdle to cross. So, instead, when a firefighter or EMT develops cancer, if it is one of these cancers–or even a similar cancer that may be related to one of these cancers–then it is presumed to have occurred on the job and it is the burden of the insurance company to prove it did not occur on the job.
As can be expected, insurance companies have cried fowl over this legislation. They pay their doctors to distort the medical findings. They claim the law is unconstitutional. When all else fails, they attack the substance of the claim under the legal guidelines. For instance, “regularly responded” has not yet been defined. So, fire fighting departments are now under strict orders to keep statistics on calls. Insurance companies will claim that “regularly responded” means responding to actual fires on most of the calls and not car wrecks or downed power lines or the many other types of calls to which firefighters are regularly called. They will also dig through the complete medical history of the firefighter. Was there a history of tobacco use? Was there a family risk factor?
The bottom line is, these cases are exceedingly complex. Even with the presumption, they are no slam dunk for the firefighter. The Texas Legislature is to applauded for taking the steps to protect fire fighters and EMTs access to workers compensation benefits. However, more work remains. Ordinarily, an insurance company that loses at the Division of Workers’ Compensation, must pay the claimant’s attorney fees if the case is appealed into district court and the insurance company loses there, as well. However, this does not apply to claims involving governmental entities. So, if the insurance company loses at the Division of Workers’ Compensation, they simply appeal into District Court by suing the cancer-stricken claimant or that person’s survivors. Then, to add insult to injury, the claimant or survivors must pay even more in attorney fees to keep what was already won at the Division. The Texas Legislature needs to add a provision to the Labor Code which forces governmental entities to pay their share of the attorney fees just like every one else. Only then, will we see cities and counties do the right thing and take full responsibility for their first responders.