The Ohio Legislature passed Senate Bill 27, in December 2016, which established a presumption that certain types of cancer were contracted by firefighters as the result of duty-related exposure. The law became effective on April 6, 2017, but was amended on June 30, 2017 with the passage of Sub. H.B. No. 27, the State’s Biennial Workers’ Compensation Budget Bill.
The law states “Cancer contracted by a firefighter who has been assigned to at least six years of hazardous duty as a firefighter constitutes a presumption that the cancer was contracted in the course of and arising out of the firefighter’s employment if the firefighter was exposed to … a group 1 or 2A carcinogen.” The law incorporates the federal definition of “hazardous duty”, which currently includes duty performed under circumstances in which the accident could result in serious injury or death. Additionally, the list of agents classified as carcinogenic or probably carcinogenic which a firefighter might encounter while performing hazardous duty includes 201 different agents.
A controversial part of the bill included the “presumption” that firefighters contracted cancer at work for workers’ compensation purposes. Unless rebutted, the “presumption” would mean the firefighter’s workers’ compensation claim would be allowed. As originally enacted, SB 27 allowed the presumption to be rebutted in only limited situations. The June 30, 2017 Workers’ Comp. Budget Bill modified that list to allow an employer to rebut the presumption by producing evidence “that shows, by a preponderance of competent scientific evidence, that exposure to the type of carcinogen alleged did not or could not have caused the cancer being alleged.” Further, the Budget Bill amended the law to allow an employer to rebut the presumption if it has been more than fifteen years (as opposed to the previously stated twenty years) since the firefighter was law assigned to hazardous duty as a firefighter.
Ohio becomes the 36th state with some sort of a firefighter cancer presumption law, with similar legislation pending in at least two other states. The Ohio Bureau of Workers’ Compensation estimated that increased claim activity consistent with the law could result in approximately 568 more claims in Ohio annually, at a cost of around $75,345,000. However, that dollar estimate includes only claim costs and not increased litigation costs and reserves that might be associated with increased claims.
For further information on Workers’ Compensation matters, contact attorney David A. Riepenhoff at driepenhoff@fishelhass.com or (614) 221-1216.