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Northwest OH Legal Blog

Thursday, January 19, 2017

New Law: Firefighters Who Contract Cancer on the Job Will Have Easier Time Collecting Workers’ Compensation

On January 4, 2017, Ohio Governor John Kasich signed Senate Bill 27, known as the Michael Louis Palumbo, Jr. Act into law. The bill creates a presumption that Firefighters contract cancer on the job when exposed to certain cancer-causing agents. This presumption applies to firefighters who apply for benefits from the Ohio Police and Fire Pension Fund and the Workers’ Compensation Fund. This post will concern how the new law will affect Workers’ Compensation benefits.

This bill is necessary because of the difficulty Firefighters previously had relating cancer back to their employment. Cancer is an Occupational Disease, which is treated differently than more common workplace injuries such as back or shoulder injuries. To receive Workers Compensation benefits for an occupational disease, Ohio Rev. Code  4123.01(F) requires the claimant to prove that the disease was: “(1) contracted in the course of employment, (2) which by its causes and the characteristics of its manifestation or the condition of the employment results in a hazard which distinguishes the employment in character from employment generally, and (3) the employment creates a risk of contracting the disease in greater degree and in a different manner from the public in general.”

Although firefighters are often exposed to cancer-causing agents, proving that it was more likely than not that the cancer was caused by these agents was difficult. Detailed medical reports would have to be filed stating that the claimant’s work as a firefighter was the most likely cause of the cancer. Even so, claimants who applied for compensation under these circumstances would often be denied because it was determined they failed to meet this burden or the treating physician could not definitively say the cancer arose from employment.

This is where the new law will make a difference. It will be codified as Ohio Rev. Code § 4123.68(X) and it creates a rebuttable presumption that the firefighter’s cancer arose from his or her employment if the firefighter was exposed to certain cancer-causing agents defined by the International Agency for Research on Cancer. The firefighter must have been assigned to “hazardous duty” for at least six years prior to contracting the illness. “Hazardous duty” is defined by a federal regulation, 5 CFR 550.902, and means “under circumstances in which an accident could result in serious injury or death.”

However, the claim will be disallowed if the employer can prove one of four things: (1) that a “significant factor in the cause or progression of the cancer” was outside the firefighters employment, such as use of tobacco products; (2) the firefighter was not exposed to one of the required cancer-causing agents; (3) the firefighter contracted the cancer before becoming a member of the fire department; or (4) the firefighter is 70 years of age or older. It will not be presumed that the cancer arose from the workplace injury if it has been twenty years since the last time the firefighter was assigned “hazardous duty.” Claims allowed under this section will not be eligible for Permanent Partial Disability.

This new law is sure to provide relief to firefighters and their families who contracted work-related cancer. If it is proven that he or she was exposed to the cancer-causing agents and there is no other identifiable cause, the claim has a good chance to be allowed.


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