How it Works: The Mechanics of Firefighter Cancer Presumption in New Hampshire

By SB 541 Best Practices Working Group

Last year, the New Hampshire Legislature, based in part on studies showing a relationship between cancer and firefighting, amended the workers' compensation statute to reinstitute a presumption that the occurrence of certain cancers in eligible firefighters is work related, if certain preconditions are met. This article looks at how a presumption works and how the cancer presumption for firefighters impacts a workers' compensation claim.

What is a "Presumption"?

Before we discuss the firefighter cancer presumption under New Hampshire's workers' compensation statute, it is important to understand what a presumption is in the legal sense.Presumptions have generated a fair amount of confusion, probably because they are relatively rare and deviate from the normal burdens of proof in a civil case. Ordinarily, the party bringing a claim carries the initial burden of proof on each element of the claim and the ultimate burden of persuasion. In other words, it is the claimant's responsibility to establish that there is sufficient evidence to move the case forward—also referred to as establishing a "prima facie" case. The defense is then provided an opportunity to counter the claimant's prima facie case in various ways. The claimant may then attempt to rehabilitate his/her evidence and counter any new material offered by the defense.

When the law creates a presumption for a particular type of claim, the claimant is excused from meeting the initial evidentiary burden as to all or part of the claim, effectively placing the initial burden on the defense to counter the presumed aspects of the claim. There are generally two types of presumption with different impacts. "Thayer" presumptions are "weak," which means they are easily dispelled by producing evidence of any amount or quality contrary to the presumption. On the other hand, "Morgan" presumptions are more resilient: To defeat a Morgan presumption, the defense's rebuttal to the presumption must be proven by a preponderance of evidence. "Preponderance of the evidence" is a legal standard that requires proof that something is "more likely than not" true—i.e., more than 50%. Disproving something by a preponderance of evidence can be a difficult initial burden for a defendant. Due to the powerful effect a Morgan presumption has on a case, there is usually a strong public policy underlying its existence.

Preconditions to the Firefighter Cancer Presumption

Now we turn to the firefighter cancer presumption under New Hampshire workers' compensation law, RSA 281- A:17. In order for this presumption to apply to a particular workers' compensation claim, the claimant-firefighter must first satisfy particular conditions laid out in the statute:

• The claimant's cancer must be a type that may be caused by heat, radiation, or a known carcinogen, as defined by the International Agency for Research on Cancer.

• The claimant must have achieved ten years of firefighter service to qualify for the presumption.

• The claimant is required to have undergone an NFPA 1582 medical examination which must be submitted to show that he/she was cancer free at the beginning of his/ her employment.

• The claimant must certify that he/she has lived a "tobacco free life."

• The claimant cannot receive the presumption unless his/her employer has implemented a policy that follows the New Hampshire Fire Standards and Training Council curriculum requirements for best practices in the use and cleaning of firefighter equipment.

In addition, a retired claimant may be eligible for medical expense coverage for a significant period of time depending on the following factors: when the claimant retired, whether the claimant is collecting a pension, whether the claimant guarantees he/she lived a tobacco free life, and whether the claimant has agreed to submit to any employer requested physical exam.

A claimant who satisfies the conditions precedent will receive the presumption. That doesn't necessarily mean the claim is compensable because the presumption alone doesn't establish coverage under the workers compensation statute. As described above, if these preconditions are established, the presumption applies to the claim, thus shifting the burden to the workers' compensation carrier to prove that the claimant's cancer is not work related. This is quite different than the standard workers' compensation claim, where it is the claimant's burden to establish that the injury is work related. Therefore, what the presumption does is provide the claimant a significant advantage over the defense in proving a fundamental aspect of causation: that the claim is, in fact, work related.

Due to the recency of the amendment, it is not known precisely how the New Hampshire Department of Labor or Supreme Court will interpret and apply the conditions listed above.

Interpretation of the Firefighter Presumption Under NH Law

New Hampshire's firefighter cancer presumption is found in RSA 281-A:17, the same section that already contained the heart/lung disease presumption. The Supreme Court has provided detailed guidance on the application of the presumption in cases involving heart disease. See City of Manchester Fire Department v. Gelinas, 139 N.H. 36 (1994); Cunningham v. Manchester Fire Department, 129 N.H. 232 (1987). The New Hampshire Department of Labor (NHDOL) and Supreme Court will most likely look to this precedent in applying the presumption to cancer cases. What follows are some important observations about the decisions.

The firefighter presumption under RSA 281-A:17 is the more resilient Morgan type of presumption (described above) because it rests on the strong public policy of addressing important health issues facing our firefighters. The presumption establishes legal causation; i.e. that the disease is work related. Although this is a critical component of any workers' compensation claim, it does not establish the separate element of medical causation; i.e., that the claimant actually has a disease and it caused a disability. The presumption, as previously mentioned, is not absolute.

The claimant must withstand the defense's rebuttal to the presumption. The defense's rebuttal must establish by a preponderance of the evidence that one or more non-work risk factors probably caused the claimant's disease. While the defense doesn't have to prove what actually caused the claimant's disease, it is insufficient to simply question the scientific accuracy of the presumption and/or offer up one or more vague non-work risk factors. The defense must point to specific non-work risk factors in the medical evidence and analyze why they indicate the claimant's disease is not work related. This will typically be accomplished through qualified medical expert reports and testimony. Of course, the claimant can challenge and counter the defense's rebuttal evidence. The tribunal as finder of fact must sort it out and reach a decision that is supported by the record and consistent with the applicable law. NHDOL and Court rulings may provide additional guidance as we move forward under the new law.

A criticism of the cancer presumption legal framework might be that it results in some degree of uncertainty for a claimant. But in providing the edge to the claimant on the subject of cancer causation, the Legislature and Supreme Court have suggested that establishing some guard rails and affording the defense an opportunity to identify, analyze and present non-work risk factors strikes a fair balance in the search for truth. Disallowing rebuttal would pull many non-work related cancers into the sweep of the presumption, which raises other serious public policy considerations.

Funding

So how can a community fund these best practices given local budget pressures? There is a wide array of funding approaches beyond traditional methods of taxation. One such approach or alternative used by many New Hampshire Fire Departments is the so-called AFG Grant, or Assistance to Firefighters Grants program. Under the Federal Emergency Management Agency's (FEMA) Assistance to Firefighters Grants (AFG) grants programs, career and volunteer fire departments and\ other eligible organizations can receive funding through different grant categories. One category of grants is intended to enhance a fire department's ability to protect the health and safety of firefighters. Information of AFG Grants can be found at www.usfa.fema.gov/grants/ and you could also consider other grant possibilities at www. Grants.gov where you can find information on more than 1000 different federal grant programs that award over $100 billion annually.

Members of SB 541 Working Group