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On July 8, 2019, Governor Phil Murphy signed Senate No. 716 into law, a bill which makes sweeping changes to occupational disease claims for New Jersey public safety employees. There are many aspects of the new law, known as the “Thomas P. Canzanella Twenty First Century First Responders Protection Act.” The single most onerous provision in the bill for municipalities, counties and the State is the provision covering firefighters for a wide range of cancers that will now be presumed to be compensable.
With respect to firefighters, both paid and unpaid, the bill provides that firefighters under the age of 76 will be presumed to have work related occupational disease if the firefighter develops cancer, including leukemia, so long as the firefighter has completed more than seven years of service. The presumption means that if such a firefighter is diagnosed with cancer, the Judge of Compensation must presume that the cancer is work related. There is no need for a firefighter with more than seven years of active service under age 76 to identify specific exposures or fires that he or she fought. The burden of proof does not rest on the firefighter to prove his or her case. Rather, the employer will lose unless the employer can disprove the case by a preponderance of the evidence. To defeat the presumption created by this law, the employer has to prove that there is a greater than 50% chance that the cancer is not due to work exposure.
For a firefighter 75 years of age or under with seven years of service, the firefighter can seek workers’ compensation benefits for any type of cancer, even the most common cancers. The only limitation is that the cancer must be a type which may be caused by exposure to heat, radiation, or a known or suspected carcinogen as defined by the International Agency for Research on Cancer. That organization is part of the World Health Organization.
The problem for public employers in disproving a presumed cancer claim is that there are any number of contradictory and competing studies in the medical literature with respect to firefighting and cancer. Some articles say there is no link between firefighting and common cancers like prostate cancer and colon cancer, but others make the connection. Prostate cancer is the most common cancer in men, and the incidence climbs with age. There is more of a scientific consensus linking firefighting to certain skin cancers, multiple myeloma, lung cancer, malignant melanoma, leukemia and non-hodgkins lymphoma.
A firefighter with less than seven years of service can still file a claim, but he or she must meet a different and new standard pertaining to public safety workers. That provision states that a public safety worker is covered for workers’ compensation if he or she is exposed to a known carcinogen, cancer-causing radiation or a radioactive substance, including cancer. This section of the law specifically covers damage to reproductive organs. Again, there is a presumption of compensability, so the burden of proof shifts to the employer. But this section requires the public safety worker to show that he or she was exposed due to fire, explosion or other means to a known carcinogen, to cancer-causing radiation or radioactive substances. In addition, he or she must demonstrate that the injury, illness or death manifested during his or her employment as a public safety worker. The language regarding manifestation during employment is helpful to employers. However, this language is not included in the previous provision dealing with firefighters who are 75 years old or younger and have seven years of service.
Public safety workers are defined as follows:
1. Member, employee or officer of a paid, part paid or volunteer fire or police department;
2. State police member
3. Community Emergency Response Team member approved by the New Jersey Office of Emergency Management;
4. Member of certain correctional facilities;
5. Advanced medical technicians of a first aid or rescue squad;
6. Any other nurse or advanced medical technician responding to a catastrophic incident who is in contact with the public during such an incident.
Public safety workers who contract a serious communicable disease or related illness also shall have a presumption of compensability that the injury or illness is work related and compensable. The new law protects public safety workers who are exposed to secretions, blood or other bodily fluids of one or more other individuals as well as those who are exposed to any pathogen or biological toxin used in biological warfare or prevalent in epidemics.
The new law also applies to public safety workers who are injured or become ill while administering a vaccine including smallpox, or as part of an inoculation program in the workforce. Once again there is a presumption of compensability, but the employer can prevail if the employer can show by a preponderance of evidence that there is no link between the medical condition and work exposures.
In all of these new provisions, there is interesting language stating as follows: “The employer may require the worker to undergo, at the expense of the employer, reasonable testing, evaluation and monitoring of health conditions of the worker which is relevant to determining . . . whether the occupational disease arose from the employment.” This language seems to suggest that when the employer is presented with such a claim, the employer can then test and evaluate the worker going forward. It is not clear if this means that an employer can test existing employees who have not brought claims.
Here are a number of questions that clients are already asking:
Question: What can a public entity do to make sure that a public safety job applicant does not have a covered cancer when hired?
Answer: Public employers are strongly encouraged to perform post-offer medical examinations of public safety job applicants using a detailed questionnaire regarding medical conditions that the employee may already have. Readers can consult with the undersigned for advice on this questionnaire.
Question: How will employers know if public safety workers could have exposures to known carcinogens, cancer-causing radiation or a radioactive substance?
Answer: The new law requires public employers to maintain records regarding any instance in which any public safety worker is deployed to a facility or location where the presence of one or more substances which are known carcinogens is indicated in documents provided to local fire or police departments and where fire, explosions, spills or other events occurred which could result in exposure to those carcinogens. The law requires that the records must include the identity of each deployed public safety worker, and it requires that each worker must be provided notice of the records. This requirement also pertains to firefighters.
Question: What if the firefighter or public safety worker wears respiratory protection when attending a fire, spill or explosion? Does the employer still have to document all such workers?
Answer: This law makes no mention of documenting use of respiratory protection, but it will obviously be advisable to employers to include this information in documentation. Whether or not the public safety worker used respiratory protection, the new law requires the employer to document every public safety worker who appears at a fire, spill or explosion or other potentially hazardous event.
Question: Will DNA testing be allowed to determine whether a worker carries a certain cancer gene?
Answer: There is no discussion of the use of DNA testing, but this is an issue that will likely be addressed by the courts.
Question: Is the provision relating to firefighters limited to existing and active employees?
Answer: No, firefighters age 75 or younger are protected so long as they have not been out of active service for more than 20 years. This means that employers will be getting claim petitions for cancer-related conditions from firefighters who have long departed from active service. Employers should therefore retain records of exposures for decades.
Question: What impact will these new occupational disease laws have on our workers’ compensation programs?
Answer: The Office of Legislative Services estimates that the bill will most likely increase annual expenditures by State and local public entities that utilize public safety workers. The Office has no idea how much the increase will be. In this practitioner’s opinion, there will be substantial increased costs on public entities for medical, temporary disability and permanency benefits as well as defense costs and the cost of oncologists and other defense experts. More trials are likely because presumptions tilt the scales in the favor of workers.
Question: Does this new law apply to public safety workers and firefighters who have already retired?
Answer: This law is effective immediately, and the law does seem to apply to those who have already retired. There is no language restricting this law to existing employees of public entities. There will certainly be a sharp increase in the filing of workers’ compensation claim petitions in the public sector given that common cancers will now be presumed to be work related.
Question: How are public entities supposed to defend cancer claims of this nature?
Answer: Presumptions are very hard to overcome for employers. It will help that the employer has to disprove the claim by a preponderance of the evidence, as opposed to the initial draft of the law which required proof by clear and convincing evidence. Since cancer cases are going to be the main focus of the new bill, and since these claims will always involve high exposure, employers will need to retain lawyers and oncologists who specialize in complex occupational disease claims. Aggressive discovery not seen in ordinary workers’ compensation claims will now be paramount with special interrogatories almost certainly needed given the inadequacy of form occupational disease interrogatories.
Question: Should employers retain board certified internists as experts in future cancer claims?
Answer: Retaining board certified internists will not likely be sufficient to overcome a presumption of compensability since these cases will center on highly technical epidemiological studies done in many countries on cancer risks in firefighters and public safety workers. There will be a great deal of discussion of current thought by the International Agency for Research on Cancer. The cases will also center on the reliability of certain medical journals and studies, and oncologists are more familiar with these issues than other physicians. Although board certified oncologists will be more expensive to retain, employers will need experts with impeccable credentials in order to overcome the statutory presumption of compensability.
Question: Does this law eliminate the statute of limitations on occupational disease claims?
Answer: No, this bill does not mention or eliminate the provision that an employee has two years to file from the date when the employee knows he or she has a cancer condition and thinks it is related to work.
Public entities and third party administrators may contact the undersigned for additional advice on defending claims under this new statute.
John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at firstname.lastname@example.org.