In wake of court ruling, bills seek to amend firefighter cancer law

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Debate over a 1980s state law related to cancer diagnoses in firefighters – and a Rhode Island Supreme Court decision from late last year that called the provision’s language into question – arrived on Smith Hill last week.

The labor committees in both chambers of the General Assembly heard testimony on legislation that would amend an existing section of state law to spell out a “conclusive presumption” that any cancer diagnosis for a firefighter is deemed job-related, with three specific exemptions.

In both cases – House Bill No. 7449 and Senate Bill No. 2302 – the legislation was held for further study. But the measure found a friendly audience in lawmakers, even as some raised questions over the process and the proposal’s potential costs.

To supporters of the legislation, there is little to debate.

They say the “conclusive presumption” has existed since the portion of Rhode Island General Law titled “Cancer Benefits For Fire Fighters” was adopted in 1986, and argue that the state high court’s December 2019 decision in a case involving the estate of a late Cranston firefighter, while flawed, merely requires clarifying language be added.

“This law’s been around for 34 years … No matter what you hear after me, this law does not cost anything new,” Rep. Michael Morin (D-Dist. 49, Woonsocket), one of the measure’s sponsors, said during the House Labor Committee’s hearing on Feb. 11.

He added: “We’ve all seen the studies. Firefighters have the highest chance of getting cancer, and not just lung cancer. Every single form of cancer … That’s why this legislation’s extremely important.”

In the House, the proposal’s other sponsors include Reps. William O’Brien (D-Dist. 54, North Providence), Julie Casimiro (D-Dist. 31, Exeter, North Kingstown), Gregg Amore (D-Dist. 65, East Providence) and Camille Vella-Wilkinson (D-Dist. 21, Warwick).

On the Senate side, sponsors include Sens. Frank Lombardi (D-Dist. 26, Cranston), Stephen Archambault (D-Dist. 22, Smithfield, North Providence, Johnston), Frank Ciccone III (D-Dist. 7, Providence, North Providence), Hanna Gallo (D-Dist. 27, Cranston, West Warwick) and Walter Felag (D-Dist. 10, Bristol, Tiverton, Warren).

Casimiro, whose father served as a Cranston firefighter for more than three decades, became emotional during her statement in support of the bill during the House Labor hearing. She said her father, who died in 2015, was forced into retirement in 1998 by a cancer diagnosis – one she said was linked to his work in the fire service.

“I watched my dad suffer for 17 years with job-related cancer … Running into a burning building is something none of us want to do besides the firefighters in this room,” she said.

Legal path

At the heart of the case made by advocates is the idea that firefighters, due to the nature of their work, are uniquely exposed to carcinogens – and, as a result, develop cancer at a rate significantly higher than other public sector employees.

The existing language of the “Cancer Benefits For Fire Fighters” section of Rhode Island law is in agreement with that premise, stating: “Fire fighters are required to work in the midst of, and are subject to, smoke, fumes, or carcinogenic, poisonous, toxic, or chemical substances … Fire fighters, unlike other workers, are often exposed simultaneously to multiple carcinogens, and the rise in occupational cancer among fire fighters can be related to the rapid proliferation of thousands of toxic substances in our every day environment.”

The Rhode Island Supreme Court, however, recently rejected the argument that the existing law includes a “conclusive presumption” for cancer diagnoses.

The case involved Kevin Lang, a Cranston firefighter who was diagnosed with colon cancer and placed on injured on duty status in 2012. He died of the disease in 2017.

Lang argued that his cancer was a result of his work, but the Retirement Board of the Municipal Employees’ Retirement System in 2015 found that a link had not been proven and denied his application for a disability pension. He, and his estate, subsequently challenged the board’s ruling, taking the case to the state’s highest court.

In its December 2019 ruling, the court’s majority – in an opinion authored by Justice Gilbert Indeglia – found that “there is no express language in [the applicable provision of state law] that grants a conclusive or a rebuttable presumption that any diagnosis of cancer among firefighters is an occupational cancer.” Indeed, the opinion reads, such an interpretation would open to the door to an “absurd result” – a firefighter who smoked four packs of cigarettes each day, for example, qualifying for a disability pension upon a cancer diagnosis.

The opinion continues: “To the contrary, we conclude that the General Assembly intended that an occupational cancer be proven before a firefighter is entitled to receive occupational cancer disability benefits … We do not believe the General Assembly would have extended such broad benefits to all firefighters without expressly providing for such in clear and unambiguous language.”

In a concurring opinion, Justice William Robinson III wrote: “The General Assembly could have mandated that there be a conclusive presumption with respect to the cause of cancer in firefighters, but there is simply no clear language in the statute indicating that the General Assembly did so.”

The feeling was not unanimous among justices, however. Justice Francis Flaherty, in a partial dissent, described the existing law as “clear and unambiguous.”

“There is no further need to establish the connection between the cancer and [Lang’s] lifesaving work because the General Assembly, cognizant of the difficulties of establishing a link between the ever-present conditions that produce a disease that may take decades to become symptomatic, already did it for him,” he wrote. Making the case

Supporters of the “conclusive presumption” legislation echoed Flaherty’s point repeatedly during their testimony last week, arguing that would be impossible to require firefighters to link their cancer diagnosis to a particular incident.

“This is a bill intended to recognize the extreme dangers that firefighters deal with on a daily basis,” Lombardi said during the Senate Labor hearing on Feb. 12.

Richard Susi, executive director of the Rhode Island Association of Fire Chiefs and a retired Cumberland fire chief, told the House Labor Committee his organization is “100 percent behind this bill, basically, because it’s the right thing to do.”

“It was right then. It’s still right now,” he added, referencing the original law from 1986.

Susi said his the first grant he sought as chief in Cumberland was for a gear-washing system.

“Why? Because we knew that the gear held the carcinogens,” he said, adding that steps to keep diesel fumes out of fire stations and separate gear from living areas were taken in fire stations across the state for similar reasons.

Paul Valletta, retired deputy chief of the Cranston Fire Department and a lobbyist with the Rhode Island Association of Firefighters, told House lawmakers the “conclusive presumption” is needed given the exposure of firefighters to carcinogens and the realities of linking a cancer diagnosis to a particular incident or work-related cause.

“Just like we can’t get doctors to say it’s absolutely caused by firefighting, they can’t get doctors to say it’s absolutely not caused by firefighting,” he said, rejecting the argument that the law should include a “presumptive rebuttal” provision.

“All we’re doing is codifying what’s been in place since 1986, because of a terrible Supreme Court decision that was given to us in December,” he said.

Valletta also pushed back against critics who said the language being considered would put Rhode Island in a league with Minnesota as the only states with such a broad presumption in place.

“What’s wrong with us being an outlier in this instance? … What’s wrong with being an outlier in the country to take care of our firefighters?” he said.

Scott Robinson, president of Cranston Firefighters IAFF Local 1363, wrote about the issue on social media after the announcement that Capt. Greg Coleman, a longtime member of the Cranston Fire Department, had passed away from leukemia last week. He described Coleman’s cancer as occupational, and said the timing of his friend’s passing – just as lawmakers took up the proposed legislation – was “not lost on me.”

Questions arise

Some testimony before lawmakers, however, questioned the “presumptive conclusion” legislation in terms of its timing, cost and exemptions.

As drafted, the bills before the House and Senate provide three exemptions to the conclusive standard – if a firefighter has served for less than two years, if a firefighter has “regularly or habitually used tobacco products” during the five years preceding a diagnosis, and if a firefighter was found to have cancer through a physical examination at the time of their hiring.

LeeAnn Byrne, legislative director and senior advisor to General Treasurer Seth Magaziner, said the treasurer “recognizes there is a strong connection between firefighting and cancer” and understands the “extreme difficulty” in linking a cancer diagnosis to a specific incident or work-related factor.

“With all this in mind, the treasurer believes it is appropriate for Rhode Island to join with most other states in enacting a clear cancer presumption law for firefighters,” she told the House Labor Committee. “But we believe this law should have appropriate guardrails.”

Byrne made the case for a “rebuttal” clause to provide recourse for the Retirement Board in the event “there’s very clear evidence there is another cause” for a cancer diagnosis. She also said the treasurer supports extending the timeframe of the tobacco-use exemption beyond five years.

She added, though, that the treasurer – based on figures from actuarial firm GRS Consulting – believes the fiscal impact of the “conclusive presumption” legislation would be extremely minimal.

Others were less certain in terms of the financial repercussions.

Peder Schaefer, associate director of the Rhode Island League of Cities and Towns, told the House Labor Committee his organization believes additional fiscal analysis is necessary. He said the legislation had been introduced just a week before the hearing, meaning there had been little time for review.

Schaefer questioned whether the legislation might result in an “influx of retroactive disabilities” and said clarity is needed regarding whether the measure would apply to all of the state’s firefighters or only those in the state retirement system. If the application is broader, he said, there could be negative consequences for municipal budgets.

“This is an important financial issue,” he said.

Schaefer also said based on his findings, other states have less narrow exemptions, including longer periods for tobacco use and five- to 10-year service requirements.

Ian Ridlon, president and executive director of the Rhode Island Interlocal Risk Management Trust, echoed many of Schaefer’s points.

“We support the intent of this bill … The concern that we have is with the way this bill if drafted. And I think really what it does is it cries out for additional fiscal consideration,” he told House lawmakers.

Mirroring the language of the Rhode Island Supreme Court’s decision, he said: “We’re all for protecting firefighters … The problem is, with the breadth of this statute, it allows really for an absurd result.”

Ridlon called for the creation of a statewide fund to pay for disability benefits for firefighters diagnosed with cancer, a move he said would spread the costs across the state and remove the risk of a single community facing extreme costs. Colorado, he said, has established such a fund.

One municipal leader, via written testimony that was read before the Senate Labor Committee, was fully supportive of the “conclusive presumption” bill – Johnston Mayor Joseph Polisena, a former firefighter and EMT. He wrote that firefighters are “routinely exposed to cancer-causing agents,” and that requiring them to prove a specific cause after a cancer diagnosis is an “insurmountable” burden.

“We simply cannot guarantee our firefighters that we are able to completely protect their health as they respond to community disasters, protect and save the lives of fellow Rhode Islanders,” the mayor said through his statement.

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