Cancer Cases Stoke Maryland Workers` Comp Dispute

Feb. 23--Mary McElroy gave 22 years to the Baltimore City Fire Department as a firefighter-paramedic. The job, she says, gave her breast cancer.

The state Workers' Compensation Commission agreed, issuing an order last fall that requires the city to cover any cancer treatments she may need for the rest of her life. She could also get tens of thousands of dollars from the city for permanent physical damage attributed to the disease.

Now the city is challenging that award in Circuit Court, focusing on a recent change in state law that has made it easier for the 52-year-old McElroy and other Maryland firefighters to receive often-substantial workers' compensation benefits.

The dispute spotlights a high-stakes debate over a law that presumes certain cancers are related to fighting fires. Firefighters say the provisions -- which can lead to awards exceeding $500,000, including medical bills -- rightly reflect the fact that they can encounter dangerous fumes and chemicals on the job.

But governments like Baltimore's, which spent $49 million last year on workers' compensation, call the law unreasonably generous and too difficult to challenge in hearings or in court. Officials also point to recent research from the National Institute for Occupational Safety and Health that casts doubt on whether there is a link between firefighting and most of the cancers listed in Maryland's law.

State Sen. Katherine Klausmeier, a Baltimore County Democrat who chairs an oversight committee on workers' compensation, acknowledges the difficulty of finding a middle ground.

"You got emotion, you got science and you got politics all involved in this issue," she said. "You're trying to balance all three of those things, and it gets a little hairy sometimes."

Maryland law has given firefighters with certain cancers special protections since 1985. Such laws are common nationally: More than 30 states offer similar cancer presumptions for firefighters.

Local governments in Maryland worry that the protections keep expanding -- and will significantly drive up workers' compensation costs. For example, in 2012 the General Assembly changed state law to add a presumption that any veteran firefighter's breast cancer is work-related due to exposure to carcinogens such as benzene. The same revision added four other cancers to the law: brain and testicular cancer, multiple myeloma and non-Hodgkin lymphoma.

In all, nine cancers and lung disease are now deemed occupational hazards for Maryland firefighters with at least 10 years on the job.

Firefighters, like police officers, also have long enjoyed a legal presumption that hypertension and heart disease are due to job-related stress rather than lifestyle or heredity. This year the General Assembly is considering legislation to extend that benefit to state corrections officers.

A similar provision of state law applies to Lyme disease for employees of the Department of Natural Resources and the Maryland-National Capital Park and Planning Commission.

Such legal presumptions can be crucial to the outcome of workers' compensation cases because they flip the burden of proof. With a typical claim -- a slip, fall or car accident -- the employee must prove that the injury was job-related. But in a claim based on a presumption, the government has the burden of proving that the job did not cause the disease.

Government officials complain that they rarely win presumption cases, despite documenting an individual's risk factors, including smoking, obesity or family history. Chesapeake Employers' Insurance Co., which handles workers' compensation for state government and many municipalities, has paid $10 million for all police and fire presumption claims since fiscal 2009.

Mounting a challenge is difficult, even if a firefighter with lung disease was a heavy smoker for years, said Douglas Kerr, the city's risk manager. "He's a firefighter. That's all that matters under the law with the presumption."

Presumption claims from firefighters and police have cost the city, on average, about $500,000 a year since 2009, city figures show. The city is self-insured, meaning taxpayers cover all such costs.

Kerr said those costs could balloon with the recent expansion of state law, and state legislative analysts have cautioned that the financial impact on local governments could be "significant."

Though an employer can offer evidence to rebut presumptions, in practice they are nearly impossible to overcome, said Les Knapp, legal and policy counsel for the Maryland Association of Counties. The best a lawyer for the government can usually do is show that the employee had the condition before being hired or that the cancer has not yet disabled the employee.

R. Karl Aumann, chairman of the Workers' Compensation Commission, said while a presumption claim can be defeated, "there's no question it's difficult."

Terry Fleming, who retired in 2012 as Montgomery County's risk manager, said presumptions have more to do with politics than science.

"The No. 1 cause of death in Maryland is heart disease; the No. 2 cause is cancer," he said. "Why do firefighters enjoy a benefit for the presumption when the entire population is susceptible to those same diseases? ... They have a good lobby and good politicians."

The case for presumptions

Michael Rund, president of the Professional Fire Fighters of Maryland union, said cancer presumptions reflect the real dangers faced by those in the fire service. Because "firefighters are willing to risk their lives to save the lives of others, if, God forbid, they come down with one of these deadly cancers, they should be covered for workers' comp."

Rund, a 51-year-old Howard County firefighter, speaks from experience: He won a workers' compensation claim related to his own prostate cancer.

The county paid his medical bills and covered his lost wages when he underwent radiation treatment in 2011. He says he also won a permanent-damages award worth more than $30,000, paid in weekly installments.

To Rund, it's justified. "You hear a lot about prostate cancer in men, but it's typically later in life, certainly not in your 40s. I'm convinced it's the job that caused mine."

Fellow Howard County firefighter John Orth received a rectal cancer diagnosis in May 2012 at the age of 44.

After two surgeries, he returned to light duty but has been sidelined at home for months because of the effects of his treatment. Last year the state commission found his disease was job-related. He has not sought compensation from the county but says he will consider that option.

"I can't tell you how many car fires I went on where the wind was blowing toward the firetruck," said Orth, a 16-year department veteran. "I'm breathing this crap in." The same happened at structure fires, he said, where construction materials and furniture often contain harmful chemicals.

Orth says no one else in his family has rectal cancer, so it's not hereditary, and his diet and lifestyle didn't increase his risk. Asked whether he simply had bad luck, he said, "Maybe, but prove it."

Some former firefighters have filed cancer-related claims more than a decade after leaving the job. Joseph B. Morris retired as a Baltimore firefighter in 1999. In 2011, he learned he had prostate cancer and successfully pursued a claim.

Morris, 68, estimates he responded to "thousands" of fires in Northwest Baltimore over his 29-year career. He said better protective equipment emerged only in the 1990s, leaving him "exposed to the elements back in the '70s and '80s."

His disease is in remission, he said, and he has been told the city will pay for any future medical care related to the cancer. Before his workers' compensation award, he says he relied on Medicare and insurance, paying out of pocket for prescription medications.

The advantages of a statutory presumption are prized by public safety workers for good reason, said claimants' lawyer P. Matthew Darby, who represents McElroy and sits on the General Assembly's oversight committee on workers' compensation. Without them, he said, firefighters would win as rarely as governments currently do.

"On an individual basis it is difficult to prove Joe Smith's lung cancer is caused by the firefighting," he said. "Why? Because we have no idea what Joe Smith was involved in, what things he sucked in over the course of his career."

Darby said lawmakers have made a policy decision to allow some firefighters to get awards they might not be entitled to as a way of ensuring that no entitled firefighters are shut out -- as long as they meet minimum service requirements and can show they missed work because of the disease.

In McElroy's case, the city argues that the expanded law should not apply because her breast cancer was diagnosed in 2009 and lawmakers did not intend to cover older cases. The city has also questioned her eligibility because she spent most of her career as a paramedic.

"We shouldn't be on the hook for that," said Kerr, Baltimore's risk manager. McElroy, now retired, and her lawyer maintain that she's eligible; they declined to comment on her case.

Under state law, the presumptions apply to cancer cases that were "caused by contact with a toxic substance that the individual has encountered in the line of duty."

Presumption cases confer an added benefit on recipients after they retire. While permanent damage awards are typically offset dollar for dollar by pension payments, employees in presumption cases can "stack" their pension and workers' compensation benefits up to 100 percent of their preretirement salary.

For example, in one case a Baltimore County firefighter who retired in his mid-50s because of heart disease received $520,000 over 10 years -- $226,000 in pension payments and $294,000 for heart damage caused by job stress, said Assistant County Attorney Suzanne Berger.

"In one select class of employees, we're paying twice as much," she said.

By contrast, she said, a police officer who retires with an accidental-disability benefit after being shot on duty would get a pension -- typically 50 percent of preretirement earnings -- but no workers' compensation payments because they're offset by the disability benefits.

Mixed research findings

Kerr and others say the cancer presumptions should be revisited and possibly curtailed because of new research findings. A National Institute for Occupational Safety and Health study of firefighters in three U.S. cities over six decades found no statistical link between the job and most of the cancers in Maryland's law, including breast cancer.

"I just want the medical science to make sense. If the science is there, I'm fine with it," Kerr said.

But firefighters and the law's other backers counter that the NIOSH study is only the latest in a line of sometimes-conflicting research.

"I wouldn't make any dramatic changes based on this study," said Dr. Virginia Weaver of the Johns Hopkins Bloomberg School of Public Health.

As director of Hopkins' occupational and environmental medicine residency program, Weaver trains doctors to determine causation in possibly job-related diseases. She said she supports presumption laws and noted that her students do a rotation at the International Association of Fire Fighters.

The science behind such legal presumptions is unsettled -- and sometimes conflicting.

In 2012, when Maryland lawmakers weighed adding breast cancer and four other cancers to state law, they looked to a University of Cincinnati study that analyzed 30 previous research papers evaluating links between firefighters and cancer.

That "meta-analysis" concluded that brain and testicular cancers were a "possible" risk for firefighters, while non-Hodgkin lymphoma and multiple myeloma, the two blood cancers added to the law, were "probable." The study did not report any findings on breast cancer.

The General Assembly voted to add those five, while removing pancreatic cancer because of research findings. Counting the four cancers already on the books, that raised the total to nine.

Although most state laws take effect within months of passage, implementation of the law was delayed until June 2013 to give the state time to hire an expert for a new study of cancer risks for firefighters.

But the study never happened. The Professional Fire Fighters of Maryland objected to one expert identified by the state after learning he had testified in court that he believed presumptions lacked scientific basis. That expert withdrew, citing personal reasons.

During the 2013 General Assembly session, efforts to delay the new parts of the law failed, and the provisions took effect June 1 -- without any new study.

Sen. Allan Kittleman, a Howard County Republican who represents employers as a workers' compensation lawyer in private practice, voted against the expansion, saying it had not sufficiently been studied. "You want to be fair with firefighters," he said, but the benefits should be "rational and reasonable, and not just because we like them."

Rund, the union leader, argued against delaying the new presumptions. In a February 2013 letter to Gov. Martin O'Malley, he urged all sides to give "serious consideration" to the NIOSH study when it came out, saying lawmakers could then make any needed changes to the law.

The NIOSH study, published in October, examined cancer rates among 30,000 firefighters in San Francisco, Chicago and Philadelphia between 1950 and 2009; it was five to six times larger than any previous study of its kind, according to researcher Dr. Robert Daniels.

Overall, the analysis found that firefighters may be at higher risk of digestive, oral, respiratory and urinary system cancers, he said. But of the nine cancers in Maryland law, only throat cancer had an elevated level that was statistically significant. The other cancers either did not show increased levels or the increases weren't deemed statistically significant given the small number of cases.

Lung cancer occurred at a level that was significant, and there was a significant increase seen in another lung-related cancer, mesothelioma, compared to the general population. State law doesn't list those cancers but includes "lung disease" as a presumption.

Daniels noted that his study found a higher-than-expected number of breast cancer cases, but not enough to meet the threshold of statistical significance. He said there has been much discussion about breast cancer in firefighters, based mainly on anecdotal evidence in San Francisco.

"To my knowledge," he said, "other than our study there really hasn't been a study that shows an increase in breast cancer."

Klausmeier, the state senator, said she did not know the rationale for adding breast cancer to the Maryland law.

"I just remember the one firefighter, a woman, got up and had testimony that she had had breast cancer," she said, recalling a legislative hearing on the issue. "Being a woman, I will say without any scientific proof one way or the other, I just said, 'Hey, as far as I was concerned, leave it there for the time being until we study it.'"

Asked about the recent study, Rund said: "This NIOSH study is just another one of several studies. How do we say, 'Well, the NIOSH one got it right and [the University of Cincinnati study] is wrong?' It's hard to say who's right and who's wrong since they're not all done the same way."

The NIOSH study was based solely on statistics and did not examine firefighters' exposure to chemicals at fire scenes. Nor did it analyze diet or other lifestyle factors. A second phase will explore causation by, for example, looking at the number of fire runs and a person's cancer experience.

But Daniels expects the broader debate to continue for many years.

"I don't know if there's ever really going to be an end to scientifically trying to find information about the risks for these firefighters, because there are so many questions," he said.

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Workers' compensation

Here are the basic steps in filing a claim:

-- Worker reports injury to employer.

-- Employer accepts or rejects claim.

-- State Workers' Compensation Commission hears dispute between employee and employer

-- If injury is deemed job-related, commission can order employer to pay all related medical costs and lost wages

-- After "maximum medical improvement" is reached, commission can order employer to compensate employee for permanent disability

-- Either side can appeal a commission decision to Circuit Court

Firefighter cancers in Md. presumption law

-- Leukemia

-- Prostate cancer

-- Rectal cancer

-- Throat cancer

-- Multiple myeloma

-- Non-Hodgkin lymphoma

-- Brain cancer

-- Testicular cancer

-- Breast cancer

State law also presumes other diseases are job-related: hypertension and heart disease for police officers and firefighters, lung disease for firefighters and Lyme disease for staff of the Department of Natural Resources and the Maryland-National Capital Park and Planning Commission

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