Authority and 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." The 1993 Session of the General Assembly authorized the continuation of the study pursuant to HJR 428; committee membership continued as appointed in 1992. 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 received subcommittee consideration. The joint subcommittee reviewed presumptive coverage laws in other states and the disposition of claims processed pursuant to those laws as well as recent data documenting claims received by the Virginia Workers' Compensation Commission for presumptive coverage and for cancer. Finally, the joint subcommittee considered the financial and policy implications of granting presumptive coverage for all or certain cancers in firefighters.

Coverage of Job-Related Illness for Virginia Firefighters

Responding to life-threatening situations is inherent in firefighting. In 1991 alone, Virginia firefighters responded 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 diseases. While many studies of toxic materials involve the use of laboratory animals, there are some human epidemiologic data supporting contentions of carcinogenic effects. While research has indicated that firefighters may be more likely to develop certain types of cancer, data specifically detailing firefighter exposure to carcinogens and subsequent disease or death are somewhat limited.

Providing benefits for public safety personnel injured through job-related activity is a long-standing 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 injury 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 Workers' 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 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.

Conclusions and Recommendations

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. In determining the appropriateness and feasibility of extending the current presumption to certain cancers in firefighters, the joint subcommittee has examined data linking cancer and firefighter exposure to carcinogens; the number and outcome of firefighter cancer claims in Virginia and other states; and the financial and policy implications of expanding the presumption. The joint subcommittee therefore makes the following recommendations:

Recommendation 1: That the Virginia Workers' Compensation Act be amended to provide presumptive coverage for firefighters whose death or disability results from certain types of cancer.

Recommendation 2: That the Virginia Fire Services Board develop criteria for local and volunteer fire departments in reporting firefighter exposure to hazardous substances and establish a database for the collection of this information within the Department of Fire Programs.