Emerging Issue in Texas: Firefighter, EMT Cancer-Related Workers’ Comp Claims — and Denials
How to process cancer-related workers’ compensation claims filed by firefighters and emergency medical technicians (EMTs) is developing into an emerging issue, Texas workers’ compensation system regulators point out in a report to the Legislature about the status of the workers’ comp system in the state.
In its Biennial Report to the 86th Legislature, the Texas Department of Insurance, Division of Workers’ Compensation said some participants in the workers’ comp system are concerned “about the frequency at which these cancer claims are being initially denied, while others are concerned about the potential cost that these cancer claims pose to political subdivisions.”
The DWC report, published in advance of the coming legislative session that begins in January, notes that the Texas Government Code in Chapter 607 states that as long as certain criteria are met: “[a] firefighter or emergency medical technician who suffers from cancer resulting in death or total or partial disability is presumed to have developed the cancer during the course and scope of employment.”
According to the DWC, the statute presumes that “a cancer is known to be associated with firefighting or exposure to heat, smoke, radiation, or a known or suspected carcinogen if it is ‘a type of cancer that may be caused by exposure to heat, smoke, radiation, or a known or suspected carcinogen as determined by the International Agency for Research on Cancer,'” (IARC).
Occupational illnesses and diseases to which firefighters and EMTs may be subject, such as heart attacks and strokes, tuberculosis and other respiratory diseases, and smallpox, are also addressed in Chapter 607.
“As most firefighters and EMTs are employed by political subdivisions, denials are mainly coming from individually self-insured cities or municipalities, or political subdivisions that are part of larger intergovernmental risk pools,” the DWC report states.
One such denial involving an Austin firefighter diagnosed with cancer was resolved in September 2018 when the city dropped its challenge to the finding by a DWC administrative law judge, which was upheld by a state appeals court, that Lt. Carrie Stewart is eligible for workers’ compensation.
Stewart served in the Austin Fire Department for 18 years. She was diagnosed with breast cancer in 2015 and filed for workers’ comp benefits arguing that her disease was work-related.
Austin is not alone in Texas in trying to limit firefighters’ workers’ comp claims for cancer they say is work-related. The Associated Press reported in August that many Texas cities, including Houston, are denying firefighters’ cancer-related workers’ comp claims.
The DWC’s report seems to back up that assertion. Of the 168 cancer claims filed by firefighters and EMTs and reported by Texas political subdivisions between Jan. 1, 2012, and Oct. 31, 2018, “146 have been denied by the insurance carrier,” the DWC’s report states.
“In most of these cases, the insurance carrier asserted that the statutory presumption did not apply either because of the type of claimed cancer or because of other issues like the injured employee’s prior tobacco use, duration of employment as a firefighter, and whether or not the duties performed by the injured employee qualify for the statutory presumption. Once an insurance carrier has determined that the statutory presumption does not apply to a cancer claim, the insurance carrier will generally deny the claim entirely.”
Only about 30 of the claim denials have been disputed. Each disputed claim is handled on a case-by-case basis and, according to the report, “DWC has not interpreted the statutory presumption to only apply to three types of cancer. DWC also takes into consideration the IARC’s analysis of a broader set of cancers which may be caused by exposure to heat, smoke, radiation, or a known or suspected carcinogen.”
Carriers are required to “include specific information on any claim denial” and the DWC “is currently in the process of reviewing all notices of claim denials to ensure they meet the statutory requirements,” the report states.