First responder comp bills introduced to limited success

The introduction of legislation impacting first responders was named the top trend in workers compensation reforms countrywide by the National Council on Compensation Insurance despite the fact that only a handful of bills have passed to date.

Boca Raton, Florida-based NCCI tracked 814 state bills in 2018 and found that 103 of them dealt with first responders battling post-traumatic stress disorder or cancer, but only five bills passed, according to a report issued in August.

Washington and Florida both passed bills this year that would allow first responders with PTSD to file workers compensation claims under certain circumstances such as how long the person has served as a first responder, according to NCCI.

As for firefighter presumption, Hawaii and New Hampshire revised or enacted presumption bills this year for firefighters battling certain types of cancer. New Hampshire also passed a law that calls for a commission to “study” PTSD in first responders to understand “whether such (a) disorder should be covered under workers’ compensation.”

Most of the laws went into effect immediately after signing. But the Florida PTSD law takes effect Oct. 1 — three years after proposals to improve PTSD coverage for first responders in workers comp in Florida began emerging.

Insurance industry experts say the trend of introducing bills will continue, despite the unknown costs — an argument often presented by opponents — and the question of whether cancer or PTSD was caused by the first responder’s work rather than another factor.

“I do believe that PTSD and cancer presumptions bills for first responders will continue to be introduced and discussed,” Cari Miller, Rolling Meadows, Illinois-based director and counsel for governmental affairs at Gallagher Bassett Services Inc., said in an email to Business Insurance. “Already over 30 states have some type of cancer coverage for firefighters under workers compensation, and PTSD presumption bills will continue to gain momentum with the continued increase of mass shootings and catastrophe events.”

Yet few actuarial experts know the costs of such bills, which have been opposed by municipalities concerned about the potential for their costs to run in the “hundreds of millions of dollars,” according to a statement released in January 2018 by the Parsippany, New Jersey-based Municipal Excess Liability Joint Insurance Fund in its lobbying against S.B. 716, a firefighter cancer presumption bill which died in committee in New Jersey.

New Hampshire’s legislation tackled the financial issue, as lawmakers passed the state’s firefighter cancer presumption bill 28 years after the state’s Supreme Court ruled the previous presumptive cancer law unconstitutional. That 1990 ruling highlighted New Hampshire law that prohibits state mandates on municipalities without a funding mechanism. The new law now includes a “surcharge” on insurance policies, with an “indeterminable” increase in costs.

According to the bill that was signed into law in July, “This bill would establish a fund to reimburse costs associated with firefighters who have cancer and establish a study commission to study, among other things, potential costs and funding of the additional coverage. The Department of Labor indicates this bill could increase state expenditures by an indeterminable amount as it establishes a dedicated fund from which to pay for the cost of care and required medical physicals. The department states it is unclear what (the) fiscal impact, if any, there would be on county and local government.”

Bruce Spidell, a Boca Raton-based assistant actuary with NCCI who tracks the bills, said putting a dollar amount on the presumption bills is not feasible, given that “many of the occupational diseases typically included in proposals providing presumptive coverage to first responders have long latency periods. Therefore, it may take several years before claim activity associated with first responder occupational diseases emerge in the data available to NCCI.”

At least one jurisdiction has been keeping track of its own claim activity. Ohio, a workers compensation monopoly state, enacted a law concerning cancer presumption for firefighters in 2017. The state’s actuaries have estimated the new law will cost $8 million in claims per year, according to a spokeswoman with the Ohio Bureau of Workers’ Compensation. As of September, 80 claims were filed and 57 were accepted, according to the spokeswoman.

Meanwhile, an official with the American Insurance Association said the numbers — or lack thereof — have not swayed state lawmakers from introducing such bills, and that payers should worry that they might be paying for injuries that fall outside of workers comp.

“We have a lot of respect and admiration for police and firefighters who respond to tragic incidents,” said Steven Bennett, Washington-based associate general counsel with the American Insurance Association. “That said, we do not like there to be presumptions because the claimant should always have the burden of proof to prove injury is work-related … claimant must show that it arose in the course and scope of employment (as) it is one of the bedrock principles” of workers compensation.

This article was first published by Business Insurance.

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