Authority and Study Objectives

Adopted by the 1992 Session of the General Assembly, House Joint Resolution No. 47 established a joint subcommittee to study the increased mortality rate and the increased rate of certain types of cancer among firefighters. The resolution directed the subcommittee to review work-related health risks and to examine presumptive cancer laws in other states "to determine if such legislation would be beneficial to the citizens of the Commonwealth." In conducting its study, the joint subcommittee reviewed a wide range of issues, including basic workers compensation law and its application to public safety personnel; current initiatives benefiting public safety personnel and other workers in high health-risk jobs; the link between long-term exposure to carcinogens and increased health risks; and methods of preventing or ameliorating this exposure. Current national and Virginia-specific data documenting mortality and cancer rates among firefighters and comparison of these rates to the general population and other public safety personnel also merited subcommittee consideration. In addition, the joint subcommittee examined the disposition of claims received by the Virginia Workers' Compensation Commission for presumptive coverage. Finally, review of presumptive cancer coverage legislation in other states was necessary to assess accurately the feasibility and appropriateness of enacting similar legislation in Virginia.

Coverage of Job-Related Illness for Firefighters in the Commonwealth

Responding to life-threatening situations is inherent in firefighting. In 1991 alone, Virginia firefighters responded to more than 154,000 emergency calls; fire service casualties totaled 299. While entry into burning buildings and rescue efforts directly place firefighters in jeopardy, exposure to unseen carcinogenic substances, largely due to the countless new synthetic materials found throughout society, has elevated cancer to a major occupational hazard for firefighters. Protective gear and clean-up protocol, may not, however, ensure the health and safety of firefighters. Some localities cannot afford the expensive special suits to ward off the effects of chemical spills and toxins, and even when protective gear is available, a lack of concern or awareness of unseen chemical hazards may prompt some firefighters to neglect to wear their masks and other gear in an emergency or in the overhaul of debris after a fire. With or without protective gear, firefighters may nonetheless be exposed to numerous potent toxins.

Establishing a clear link between exposure to these substances and disease remains a difficult task, as the disease may not appear for many years following exposure. Although recent studies have questioned methods of assessing the potential toxicity of certain substances, research continues to show causal relationships between exposure to specific materials and cancer and other disease. While many studies of toxic materials involve the use of laboratory animals, there are some human epidemiologic data supporting contentions of carcinogenic effects. Data specifically detailing firefighter exposure to carcinogens and subsequent disease or death, however, are somewhat limited. While research has indicated that the mortality rate of firefighters is four times that of workers in the private sector and that firefighters may be more likely to develop certain types of cancer, Virginia-specific data is necessary to assess more accurately the risks encountered by firefighters in the Commonwealth.

Providing benefits for public safety personnel injured through job-related activity is a longstanding practice in Virginia. Local governing bodies possess discretionary authority to provide monetary relief for officials, employees, policemen, firefighters, and other personnel who suffer injury. Further, localities operating firefighting equipment may provide relief for dependents and spouses upon the death of a firefighter and are statutorily required to provide compensation for any firefighter who is disabled by injury or illness as the direct or proximate result of the performance of his duty. The Commonwealth offers benefits to firefighters under the Virginia Line of Duty Act and also provides free undergraduate tuition to a surviving child or spouse.

Perhaps the most familiar relief program is created by the Virginia Workers' Compensation Act, which authorizes recovery for certain employees for injuries and diseases arising out of and in the course of employment. Questions and disputes regarding compensation for job-related injuries and disease may be settled by the agreement of the interested parties with the approval of the Workers' Compensation Commission. Statutorily directed to adjudicate issues and controversies relating to workers' compensation coverage, the three-member Commission received nearly 60,000 major claims for coverage in 1991.

The Virginia Worker's Compensation Act already specifically contemplates coverage for firefighters. Under current law, firefighters seeking recovery under workers' compensation may pursue two avenues: by showing an injury by accident or a disease arising out of and in the course of employment. Medical evidence is critical to establish the requisite causative link between the claimed disability and the work environment. The challenge of proving causation is often difficult, however, and may be further exacerbated by the various interpretations scientists, medical doctors, and jurists may attach to the term.

Recognizing this challenge, many states, including the Commonwealth, have adopted statutes providing presumptive coverage for certain classes of employees. In Virginia, salaried and volunteer firefighters suffering from heart or respiratory disease or hypertension are presumed to have contracted these conditions from the workplace for purposes of obtaining workers' compensation. This presumption may be rebutted by the employer by a preponderance of competent evidence. Special compensation statutes for firefighters have gained support in over 20 states. In fourteen states, this evidentiary tool has been broadened to include cancer in firefighters. Coverage under these statutes is often contingent upon a showing that the cancer is of a kind resulting from exposure to a known or suspected carcinogen.

Conclusion

For the Virginia firefighter seeking workers' compensation for certain cancers not presently granted presumptive coverage, the challenge of proving causation may seem insurmountable. Although various cancers induced by work-related exposure to carcinogens may indeed merit recovery under current law, without the benefit of presumptive coverage, some .firefighters may be discouraged from pursuing valid claims. Statistics directly linking firefighting to specific forms of cancer remain somewhat controversial, and Virginia-specific data addressing this issue are limited. Determining the appropriateness and feasibility of extending the current presumption to certain cancers in firefighters necessitates further examination of additional, specific data linking cancer and firefighter exposure to carcinogens; consideration of the appropriate weight to be accorded predisposing factors and conditions; review of Virginia Workers' Compensation Commission data regarding the number and outcome of firefighter cancer claims; and analysis of financial and policy implications for the Commonwealth and its public safety personnel. The joint subcommittee therefore makes the following recommendation:

RECOMMENDATION: That the joint subcommittee studying increased mortality and cancer rates among firefighters in the Commonwealth be continued/or one additional year.