Legislature(2011 - 2012)BELTZ 105 (TSBldg)
04/05/2011 02:00 PM Senate LABOR & COMMERCE
| Audio | Topic |
|---|---|
| Start | |
| SB100 | |
| HB119 | |
| SB103 | |
| SB116 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 103 | TELECONFERENCED | |
| *+ | SB 116 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | SB 100 | TELECONFERENCED | |
| += | HB 119 | TELECONFERENCED | |
SB 103-WORKERS' COMPENSATION FOR FIREFIGHTERS
2:17:48 PM
CHAIR EGAN announced SB 103 to be up for consideration.
2:18:20 PM
SENATOR PASKVAN moved to bring CSSB 103( ), 27-LS0595\M before
the committee.
CHAIR EGAN objected for discussion purposes.
SENATOR FRENCH, sponsor of SB 103, recapped that the bill
addresses a piece of legislation that passed in 2008 that made
statutory changes to the Workers' Compensation Program giving
firefighters the presumption of compensability for certain
diseases that they incur because of the work they do that so
often leads them to exposure to smoke and chemicals. He said,
"It was the intent of the legislature that this compensability
presumption go to firefighters who had done two things: they'd
served for seven years and who had received the required
physical exams during that seven year period and had not shown
any evidence of the disease." However, a wording change made in
one committee had the unanticipated effect of narrowing the
scope of the compensability presumption to only those
firefighters who had had an initial physical examination at the
time of their hire. This was not the intent and it wasn't
discussed in committee. It didn't come to light until the
Workers' Compensation Board began to implement regulations and
began to hear cases brought to it asking to apply the disability
presumption. Recognizing the problem, the Workers' Compensation
Board passed a resolution supporting an amendment such as the
one in this bill today to give the presumption to those
firefighters who have worked for seven years, had all the
required exams and had shown no evidence of disease.
In addition, Senator French said, a letter from the National
Council on Compensation Insurance says they believe the cost
impact is minimal and think that money may be saved by avoiding
future litigation costs.
The second change the bill makes is to clarify that the law
applies to state as well as municipal firefighting agencies,
which picks up a few firefighters who work for the University of
Alaska in Fairbanks. The original bill referred to a definition
that was on the books at the time that didn't include state
firefighters. So, "state or" was added to the existing
definition.
SENATOR FRENCH said they tried very hard to make the change
through regulation, but Legislative Legal said it "just wouldn't
fly that way."
SENATOR PASKVAN said he wanted to make sure the University of
Alaska Fairbanks (UAF) Fire Department wasn't excluded because
it is in an unusual class by itself.
SENATOR FRENCH responded that page 2 defines "firefighter" as "a
person employed by a state or municipal fire department" and
that the UAF firefighters are absolutely a subdivision of the
state.
SENATOR PASKVAN asked if language on page 2, lines 23-28, makes
sure of the retroactive component so that they actually undo the
problem that was unintentionally created.
SENATOR FRENCH replied that's "the meat of the bill."
2:23:01 PM
LAW HENDERSON, Workers' Compensation Administrator, Office of
Risk Management, Municipality of Anchorage, said he opposed the
amendment to AS 23.30.121 [SB 103] for several reasons. He said
in 2008 the legislature enacted this presumption to give
firefighters a certain protection for diseases that were
considered work related. To trigger that presumption a
firefighter must establish they were given a qualifying medical
examination before firefighting that did not show evidence of
the disease as well as an annual medical exam during each of the
first seven years of employment that did not show evidence of
the disease.
MR. HENDERSON said the first problem with the legislation is
that the municipality, like most municipalities, didn't even
offer annual physical exams in 1986; they weren't even mandatory
until OSHA required them in 1989. Moreover, testing for the
diseases listed in the statute weren't done or available in most
cases until the 90s and in fact some testing still cannot
establish some of these cancers. He said the municipality
doesn't know what constitutes the medical examination required
under the statute.
Further, the statute directed the Department of Labor and
Workforce Development (DOLWD) to define the type and extent of
medical examination needed to trigger the presumption and to
create the form for use during these exams, but no regulation is
currently in effect defining the type and extent of examination
needed. He said although the legislation was passed in 2008, no
regulation was presented to the lieutenant governor until early
this year and that will take effect later this month. No form
has been developed. Thus, the record is devoid of medical
examinations necessary to trigger the presumption - even though
it might exist going forward.
MR. HENDERSON said despite the lack of the needed medical
examinations, the Alaska Workers' Compensation Board has
nevertheless found in favor of at least one firefighter simply
based on his statement that he had had a qualifying medical
examination. No medical report was offered and probably doesn't
exist. This one case alone will probably cost the city more than
$250,000; another case within the municipality may exceed $1.6
million. Several other cases are pending. In addition, because
of AS 23.30.121, the municipality is now unable to insure any of
its firefighters for losses over $1 million as it has been
historically able to do for all workers' compensation claims. He
explained that while the municipality is self-insured with a
retention level of $1 million per workers' compensation loss per
occurrence, when an injury happens to a firefighter, the
municipality is now compelled to pay the first $2 million of the
loss even if it is unrelated to a disease listed under AS
23.30.121. Thus the legislation has created an unfunded mandate
on the municipality and he assumed similar entities throughout
the state. He pointed out that smaller entities may be unable to
fund a self-insurance program as they may be unable to fund the
first $2 million of a loss.
MR. HENDERSON said cost and loss of insurance aren't his only
concerns. Another is the lack of medical evidence supporting the
causation. The Alaska's Workers' Compensation Board has held
that if a condition is one of those listed, medical opinions or
studies to the contrary are insufficient to rebut the
presumption. Thus, this legislation as applied by the board has
created an irrebutable presumption. According to the American
Cancer Society, cancer is now the second leading cause of death
in the United States and one out of every two Americans will be
diagnosed with it as some point in their lives.
The question is whether firefighting activities put one at a
greater risk to these cancers. Twenty-four states have enacted
presumption laws similar to Alaska's. The impact of these
statutes and the medical research regarding firefighters were
recently analyzed in April 2009 and a report by the National
League of Cities entitled "Assessing Firefighting Cancer-
Presumption Laws and Current Firefighting Cancer Research." The
report points to many problems with the legislation. Loss of
insurance is one. Another is the lack of medical research
establishing a causal relationship between firefighting and a
specific type of cancer. According to the report, of the
thousands of cancer studies taking place from 1995 to 2008, only
17 studies looked at firefighters as a possible risk factor for
contracting cancer. The research concluded there was a lack of
substantive scientific evidence currently available to determine
that firefighters face greater risk than the general population.
2:29:08 PM
Another concern is equity and questions about fairness come up
when one class of employees obtains expanded benefits while
other employees such as sanitation workers and automotive fleet
personnel who may also be exposed to similar hazards as the
firefighters are not covered to the same extent.
Alaska already has a presumption under AS 23.30.120 that has
worked well since statehood, Mr. Henderson said. He urged them
to repeal AS 23.30.121 or short of that to reject the proposed
amendment as it would make every firefighter who ever developed
cancer entitled to the benefits despite the lack of available
testing as the examination wouldn't show evidence of the disease
during the first seven years of employment as the testing was
not available.
CHAIR EGAN asked him to summarize.
MR. HENDERSON said these tests are available for some cancers
but for others it is cost prohibitive or unavailable.
SENATOR PASKVAN asked if he or the municipality objected to this
law in 2008 when it was passed.
MR. HENDERSON answered no; but they did in 2007.
SENATOR PASKVAN said it passed in 2008 and this amendment just
corrects an unintentional problem. Did he agree?
MR. HENDERSON answered no.
2:32:26 PM
TOM WESTCOTT, President, Alaska Professional Firefighters
Association, Eagle River, said they supported CSSB 103 (L&C),
version M. He said this version doesn't change the intent of the
original law; on the contrary, it captures the intent and makes
it clearer. It has two aspects, the physicals and the
definition. The definition captures groups like the UAF fire
department.
He said some of what Mr. Henderson said wasn't accurate because
the Occupational Safety and Health Administration (OSHA) adopts
standards and the National Fire Protection Association (NFPA)
regulation 1582 has the standard for firefighter physicals. He
also noted that at the time this legislation passed, they had to
demonstrate the scientific studies backing up the link for
cancer to their profession. And while it's true that everyone
someday may get cancer, getting it at 40 or 38 makes the
difference. Evidence of this was shown over and over again
during this process.
2:34:42 PM
PAUL HANDBY said he is a career firefighter for Juneau and is a
member of Alaska State Firefighters Association. He conveyed
that he would be omitted from protection under existing language
in SB 103, because he had an extensive pre-employment physical,
but each department had the latitude to determine their own
required physicals and during budgetary times these physicals on
an annual basis can prohibitively expensive. So, many
municipalities don't require them. The change in the CS would
cover him in the unlikely event he would be stricken by one of
the named carcinogens or something that was related to his
occupation.
CHAIR EGAN asked if he supported SB 103.
MR. HANDBY replied emphatically yes.
SENATOR FRENCH offered that it is easy to forget the crucial
role firefighters play in protecting our communities. It is
known that exposure to noxious chemicals that they see in the
course of their employment makes them sick. This issue was gone
over carefully in 2007 and 2008 when this bill passed. He said
he was disappointed in the testimony on this topic from the
Municipality of Anchorage. Firefighters take risks for us and
this covers them when they're on the job. Once they leave the
employment of the municipality, once they retire, they are on
their own for their cancers that they develop later on.
This bill got a zero fiscal note from the state risk management
and it got a letter of support from the National Council on
Compensation Insurance. He said they looked "high and low"
through the record to find out what supported the amendment that
carved out and required that initial exam and couldn't find a
single word of testimony supporting it. He wanted Mr. Henderson
to bring it to his attention if he found something different.
CHAIR EGAN closed public testimony and held SB 103 for a further
hearing.
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