Legislature(2007 - 2008)BUTROVICH 205

02/18/2008 01:30 PM Senate HEALTH, EDUCATION & SOCIAL SERVICES


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ SB 117 WORKERS' COMP: DISEASE PRESUMPTION TELECONFERENCED
Moved CSSB 117(L&C) Out of Committee
Bills Previously Heard/Scheduled
= SB 160 MANDATORY UNIVERSAL HEALTH CARE
Moved CSSB 160(HES) Out of Committee
-- Testimony <Invitation Only> --
           SB 117-WORKERS' COMP: DISEASE PRESUMPTION                                                                        
                                                                                                                              
1:36:30 PM                                                                                                                    
CHAIR  DAVIS  announced  consideration  of SB  117.  [Before  the                                                               
committee was CSSB 117 (L&C)].                                                                                                  
                                                                                                                                
SENATOR FRENCH, sponsor  of SB 117, said the idea  of the bill is                                                               
to create  a presumption in  the workers' compensation  laws that                                                               
certain  diseases, cardio  vascular emergencies  and cancers  are                                                               
work related  when contracted by  fire fighters during  a limited                                                               
time frame and  within specific parameters. The  list of ailments                                                               
on page 2  of the bill is limited to  diseases that fire fighters                                                               
contract  more  often  the  general  public.  Certain  contagious                                                               
diseases such as tuberculosis and  meningitis are covered under a                                                               
presumption for fire fighters and  other first responders. In all                                                               
instances a preponderance of evidence  can negate or overcome the                                                               
presumption. For example,  someone with a history  of tobacco use                                                               
is specifically prevented from the  worker's comp presumption for                                                               
respiratory  and   heart  conditions.  Other   factors  including                                                               
physical fitness, work history  and non-employment activities can                                                               
be considered when the claim  is filed. A qualifying medical exam                                                               
will  insure that  an ailment  wasn't present  before a  claim is                                                               
filed.                                                                                                                          
                                                                                                                                
The presumption  for fire  fighters is  restricted to  only those                                                               
who have served seven years  or more, and coverage for qualifying                                                               
medical  events  extends  to  a maximum  of  sixty  months  after                                                               
employment  ends.  Exposure  to  a known  carcinogen  during  the                                                               
course  of employment  must  be established  for  a cancer  claim                                                               
presumption under  the legislation.  Alaska is  one of  only nine                                                               
states that has  not established a workers'  comp presumption for                                                               
fire fighters. The 41 states  that have enacted similar laws have                                                               
found  negligible effects  on  actuarial  assumptions for  claims                                                               
payouts.  The  California  retirement  system  (CALPERS)  did  an                                                               
extensive  study  of  this  issue to  see  if  establishing  this                                                               
presumption  in law  would raise  workers' comp  rates, and  they                                                               
found  no  noticeable impact  as  a  result of  the  presumption.                                                               
Workers' comp  claims actually  fell in  Illinois during  the six                                                               
years after a presumption was placed into law.                                                                                  
                                                                                                                                
The Labor and Commerce (L&C)  CS before the committee responds to                                                               
a single  concern that  qualifying medical  exams would  place an                                                               
unfunded  obligation  on  the  employers. The  CS  says  that  an                                                               
employer will  not have  an obligation  to cover  the costs  of a                                                               
qualifying exam.  It provides that  an individual has  the option                                                               
to  pay for  his own  exam if  an employer  doesn't provide  one.                                                               
Without  an  exam,  individuals would  not  get  the  presumption                                                               
although   they  could   still  make   a  workers'   comp  claim.                                                               
This legislation gives fire fighters  the back-up they  need when                                                               
their  life-saving work  produces  adverse effects  to their  own                                                               
personal health.                                                                                                                
                                                                                                                                
SENATOR  FRENCH  explained that  Section  1  of the  bill  amends                                                               
AS.23.30 the Alaska  Workers' Comp Act by adding  the new section                                                               
that follows.  Subsection (a) on  page 1, line 6, establishes the                                                               
presumption  that   specified  diseases  are   work-related  when                                                               
contracted by  certain emergency  workers in  the state.  It also                                                               
allows  for  the  presumption  to  be  challenged  and  it  gives                                                               
examples of evidence that can  be used to disprove a presumption.                                                               
Included  on  the list  are  tobacco  use, physical  fitness  and                                                               
exposures  to  hazards  in  other  employment  or  non-employment                                                               
activities.                                                                                                                     
                                                                                                                                
Subsection  (b)  starting  on  page  1,  line  13,  outlines  the                                                               
specific illnesses  and diseases that fall  under the presumption                                                               
for a  fire fighter in addition  to the time frame  for which the                                                               
presumption   lasts.  The   diseases  are:   respiratory;  cardio                                                               
vascular events or emergencies experienced  within 72 hours after                                                               
exposure  to smoke,  fumes or  toxic substances;  8 varieties  of                                                               
cancer which studies have shown  are experienced at greater rates                                                               
among fire fighters  than the general public. To  qualify for the                                                               
presumption,  a fire  fighter  must have  served  at least  seven                                                               
years and must have had a  medical exam that didn't show evidence                                                               
of the disease.  If the workers' compensation  claim involves any                                                               
of the  listed cancers,  the fire  fighter must  demonstrate that                                                               
during  the course  of employment  they were  exposed to  a known                                                               
carcinogen related to the disabling cancer.                                                                                     
                                                                                                                                
Subsection (c) establishes a  presumption that certain contagious                                                               
diseases listed on page 3, lines  8-13, are work related for fire                                                               
fighters  and emergency  rescue personnel.  This presumption  has                                                               
the  same challenge  process and  requires  a qualifying  medical                                                               
exam showing good health during employment.                                                                                     
                                                                                                                                
Subsection  (d)  on  Page  3  Line  21  states  that  respiratory                                                               
conditions  or cardio  vascular  events are  not  covered if  the                                                               
firefighter has a history of tobacco use.                                                                                       
                                                                                                                                
Subsection (e) is a new element  of the bill. It makes clear that                                                               
an employer will  not be forced to purchase  a qualifying medical                                                               
exam. This language is on page 3, line 24.                                                                                      
                                                                                                                                
Subsection  (f)  on  page  3,   line  31,  establishes  that  the                                                               
department  will  determine  through regulations  the  extent  of                                                               
medical examinations  necessary to eliminate evidence  of disease                                                               
in  an  active or  former  fire  fighter.  It also  requires  the                                                               
department to define what constitutes a history of tobacco use.                                                                 
                                                                                                                                
Subsection  (g)  defines  fire  fighter  as  written  in  statute                                                               
09.65.295.                                                                                                                      
                                                                                                                                
Section 2  makes clear  the presumption will  apply on  any claim                                                               
filed after  the legislation passes,  assuming all  provisions of                                                               
the bill including the qualified medical exam have occurred.                                                                    
                                                                                                                                
1:43:04 PM                                                                                                                    
SENATOR THOMAS  asked if annual  physicals were required  by most                                                               
departments.                                                                                                                    
                                                                                                                                
SENATOR FRENCH  replied they are.  He said in  90 cases out  of a                                                               
100, those  exams would satisfy  the requirement. There  are some                                                               
places that are too small with  four or five fire fighters on the                                                               
force; they  don't pay for annual  exams. The concern was  not to                                                               
burden those small departments with a new cost.                                                                                 
                                                                                                                                
SENATOR THOMAS asked about volunteer firemen.                                                                                   
                                                                                                                                
SENATOR FRENCH  said they would  qualify if they were  being paid                                                               
wages that would  allow them to file for workers'  comp. If there                                                               
are no  wages there is no  Workers' Comp claim. They  have to pay                                                               
for an exam if they want the presumption.                                                                                       
                                                                                                                                
SENATOR COWDERY  asked what  happens if they  fail the  exam they                                                               
are required to take in order to  keep the job, and if this would                                                               
have any effect on the presumption.                                                                                             
                                                                                                                                
SENATOR FRENCH said  he would defer that question  to someone who                                                               
can  explain how  that would  work. He  said he  thinks it  would                                                               
depend on what caused them to fail.                                                                                             
                                                                                                                                
1:46: 03 PM                                                                                                                   
PAUL  LISANKIE,  Director,  Division  of  Worker's  Compensation,                                                               
Department of  Labor, Juneau, AK  , said  it depends on  what the                                                               
exam disclosed.  If it was  something a fire fighter had to prove                                                               
he/she  didn't  have,  it  would  probably  disqualify  coverage,                                                               
assuming  it wasn't  already work  related. If  it was  something                                                               
that  developed during  the job,  it  could support  a claim  for                                                               
workers' comp under the existing statute.                                                                                       
                                                                                                                                
SENATOR  DYSON said  Senator French  why the  list of  contagious                                                               
diseases was included (page 3, line 6).                                                                                         
                                                                                                                                
SENATOR   FRENCH   replied   that  those   diseases   are   human                                                               
immunodeficiency   virus    (AIDS),   acquired   immunodeficiency                                                               
syndrome   (AIDS),  all   strains  of   hepatitis,  meningococcal                                                               
meningitis;  micro  bacterium  tuberculosis;,  and  any  uncommon                                                               
infectious diseases  the U.S. Secretary  of Labor  determines are                                                               
related to  hazards a  fire fighter faces.  The common  factor in                                                               
these six diseases  is they are things you get  from the blood of                                                               
another person. Since  these individuals go to  places where they                                                               
are   rescuing   people   and  giving   them   Cardio   Pulmonary                                                               
Resuscitation  (CPR) under  emergency  situations, it's  entirely                                                               
foreseeable that  fire fighters will  come in contact  with these                                                               
diseases  more than  the general  public.  The research  supports                                                               
this. Therefore,  when they  diseases come up,  they get  a work-                                                               
related  presumption.  It  can  be rebutted,  but  they  get  the                                                               
benefit of the doubt initially.                                                                                                 
                                                                                                                                
SENATOR  DYSON said  there a  lot of  people in  Alaska who  work                                                               
seasonally  fighting forest  fires from  three to  five months  a                                                               
year. He  asked if they would  have to have the  same seven times                                                               
12 months of on-the-job service to get covered under this bill.                                                                 
                                                                                                                                
ANDY  MODEROW, staff  to Senator  French, replied  the definition                                                               
does not  include wild land  volunteer fire fighters but  it does                                                               
include the other employees.                                                                                                    
                                                                                                                                
SENATOR DYSON said the forest  fire fighters may have volunteered                                                               
to  go but  they  are paid  on  contract. He  asked  if they  are                                                               
volunteers or employees.                                                                                                        
                                                                                                                                
1:51:23 PM                                                                                                                    
MR. MODEROW  replied they are  not included in the  definition as                                                               
the bill is written.                                                                                                            
                                                                                                                                
CHAIR DAVIS asked if the  department had any clarification on who                                                               
would be eligible for compensation.                                                                                             
                                                                                                                                
MR. LISANKIE  said Mr.  Moderow is  correct. The  definition will                                                               
control who is  eligible for coverage and the  definition of fire                                                               
fighter  in Alaska  statutes  describes a  person  employed by  a                                                               
municipal fire department or who is  a member of a volunteer fire                                                               
department registered  with the  state fire  marshal or  a person                                                               
registered for  purposes of workers' compensation  with the state                                                               
fire  marshal as  a member  of a  volunteer fire  department. The                                                               
delineation  is  going  to  be what  they're  doing  rather  than                                                               
whether they're paid.                                                                                                           
                                                                                                                              
SENATOR DYSON said it sounds  like many folks who work seasonally                                                               
fighting forest  fires are not  going to  be covered and  most of                                                               
those   will  not   be  directly   working  for   the  state   or                                                               
municipality.                                                                                                                   
                                                                                                                                
SENATOR FRENCH said forest fire  fighters might get workers' comp                                                               
coverage, but not the presumption.                                                                                              
                                                                                                                                
1:53:05 PM                                                                                                                    
JEFF  BRIGGS,  Alaska   Professional  Fire  Fighters  Association                                                               
(APFFA),and  the  International   Association  of  Fire  fighters                                                               
(IAFF)  Local  1264,  Anchorage,  AK,  said  this  bill  is  long                                                               
overdue. There are  40 other states and provinces  in Canada that                                                               
currently have some  sort of presumption in place,  none of which                                                               
are experiencing  fiscal problems  through the  implementation of                                                               
the legislation.  Several of the  states have many  more diseases                                                               
and cancers covered. Some cover  all cancers for a fire fighter's                                                               
entire life after he retires.                                                                                                   
                                                                                                                                
In Alaska,  the workers' compensation  rate for fire  fighters is                                                               
$4.68 per hundred  dollars of payroll. The claim  that Alaska has                                                               
the  highest rate  in the  nation is  erroneous. Vermont  in 2007                                                               
paid  $14.52 per  hundred dollars.  This year  nationwide already                                                               
there  have been  17  on-duty fire  fighter  fatalities. In  2007                                                               
there were 115. The numbers from  9/11 are well known. The Alaska                                                               
Supreme Court  has ruled that  fire fighters and  police officers                                                               
are not allowed to sue  negligent parties to recover damages from                                                               
negligent acts.  Considering that  fire fighters don't  have many                                                               
benefits, this would be a good place to start.                                                                                  
                                                                                                                                
He said the  Alaska Municipal League suggests  that workers' comp                                                               
rates  will skyrocket  yet  the same  statement  says that  these                                                               
diseases are  already covered  by workers'  comp so  there should                                                               
not  be  an  additional  cost.   If  anything,  the  bill  should                                                               
streamline the process  and possibly save money.  Last week Kevin                                                               
Smith sent a  letter to the House  Finance committee. Ironically,                                                               
he supported  one of IAFF's  claims. Night workers have  a higher                                                               
cancer rate  than the  general public.  Fire fighters  often work                                                               
24-hour  shifts,  56   hours  a  week.  It   appears  that  sleep                                                               
deprivation  increases cancer  risk.  He urged  the committee  to                                                               
pass SB 117.                                                                                                                    
                                                                                                                                
SENATOR THOMAS asked if Mr. Briggs  had a list of where the rates                                                               
went down and  if that was based on the  concept that there would                                                               
be early  detection and intervention potentially  under the terms                                                               
of this bill, rather than down  the road when one of the diseases                                                               
that are listed ends up being an extremely expensive item.                                                                      
                                                                                                                                
MR. BRIGGS  said he  thought rates  have dropped  because workers                                                               
tend  to be  safer. Every  year  equipment is  improved and  more                                                               
training is available.  IAFF is in the process  of gathering more                                                               
data on rates in other states.                                                                                                  
                                                                                                                                
SENATOR DYSON said he's like to see  a copy of the data when it's                                                               
collected.                                                                                                                      
                                                                                                                                
1:57:43 PM                                                                                                                    
MARK   DRYGAS  President,   Alaska  Professional   Fire  Fighters                                                               
Association (APFFA),  Fairbanks, AK, said he  represents 500 fire                                                               
fighters and emergency medical service  providers. The members of                                                               
APFFA respond to 75 per cent of  the 911 calls in Alaska. He said                                                               
he is  also employed as a  battalion chief in the  Fairbanks Fire                                                               
Department.  He supported  SB 117.  Fire  fighters face  multiple                                                               
hazards every  day. They expose  themselves to  possible injuries                                                               
from  falls, buildings  collapsing, burns,  et cetera.  The risks                                                               
they take  to provide for  the safety and protection  of property                                                               
of others is  part of the job. If they  are unfortunate enough to                                                               
suffer  an  injury,  they  know  they will  be  provided  for  by                                                               
workers' compensation.  No one gains,  but at least  the negative                                                               
effects  are  lessened  by  this   coverage.  Fire  fighters  are                                                               
becoming   increasingly  aware   of  the   new  dangers   of  the                                                               
profession. In  addition to exposure  to injuries,  fire fighters                                                               
are exposed  to disease-causing elements  on a daily  basis. Fire                                                               
fighters are contracting  cancer in all its forms at  a rate that                                                               
exceeds the general public.                                                                                                     
                                                                                                                                
He said fire fighters generally  represent a healthier segment of                                                               
the workforce.  They are learning  to accept some of  these risks                                                               
while  making every  effort to  limit their  exposure to  toxins.                                                               
Progress has  been made in  making equipment safer  and improving                                                               
training. Meanwhile,  exposure to cancer toxins  increases. Years                                                               
ago  most  fires  consumed   natural  products.  Nowadays,  fires                                                               
consume  a  vast  array  of  synthetics,  plastics,  and  unknown                                                               
chemicals.   Advanced   breathing   apparatuses   have   lessened                                                               
inhalation hazards, but  many toxins enter the  body through skin                                                               
absorption.  It used  to be  a  badge of  honor to  have a  soot-                                                               
covered bunker coat,  but today's fire fighter knows  to keep his                                                               
gear clean. There are hazards  in every profession but workers in                                                               
other professions  are informed  of the  hazards facing  them and                                                               
can establish  a safe work  environment. A materials  safety data                                                               
sheet (MSDS) is posted in all workplaces.                                                                                       
                                                                                                                                
He  asked committee  members to  imagine the  chemicals in  their                                                               
garages, under  their sinks, in  their laundry rooms, as  well as                                                               
the  synthetics  and  components  of a  home,  from  curtains  to                                                               
stereos with  no way of  knowing what kind of  lethal combination                                                               
they might produce in a fire.                                                                                                   
                                                                                                                                
MR.  DRYGAS said  fire fighters  cannot pinpoint  where and  when                                                               
they become  exposed to hazards  that may cause cancer.  It could                                                               
be  from a  combination of  exposure to  different fires  or from                                                               
handling fire  hose after  a fire which  is routinely  cleaned by                                                               
the fire fighters on the next  shift. A state of Alaska report on                                                               
occupational injury or illness asks  for the date, time and place                                                               
the exposure  occurred. A  fire fighter  is at  a loss  trying to                                                               
fill out one of  those forms after being on the job  for 10 or 20                                                               
years. SB 117  provides for a presumption of coverage,  but it is                                                               
not a guarantee.  The employer or insurer must  prove that cancer                                                               
was not  related to  the job.  There are  provisions in  the bill                                                               
that  allow  the  insurers to  raise  family  history,  lifestyle                                                               
habits,  and smoking  in challenging  a claim.  The insurer  must                                                               
prove by a  preponderance of evidence that it is  not job related                                                               
instead of the employee having to prove that it is job related.                                                                 
                                                                                                                                
He said  the bill  provides for  coverage of  certain respiratory                                                               
diseases  and for  heart  disease or  heart  attacks following  a                                                               
major  event like  a structure  fire.  Exposure to  fire and  its                                                               
accompanying  chemical   compounds  has   led  to   an  increased                                                               
incidence  of heart  attacks in  the first  72 hours  following a                                                               
fire. The  bill also  has a presumption  of coverage  for certain                                                               
blood-borne  communicable  diseases.  As first  responders,  fire                                                               
fighters enter situations  where they don't have  the luxuries of                                                               
a  hospital environment  or good  lighting. They  don't know  the                                                               
history of the  patient before they deal with  them. These claims                                                               
of  disease are  at  the same  time open  to  proof the  exposure                                                               
occurred outside the  job. Some people in  the insurance industry                                                               
will  say  it's too  expensive  and  not  needed, and  that  fire                                                               
fighters are already covered. He remarked:                                                                                      
                                                                                                                                
     I  expect that.  That's  their  job. They're  insurance                                                                    
     people.  Compassion  isn't  part of  their  vocabulary.                                                                    
     They'll try  a counter or scientific  research. They'll                                                                    
     say  it's  skewed,  that  we  used  poor  studies,  but                                                                    
     they're never going to be able to  show that  . . . our                                                                    
     cancer rate  is the same  as the general  public. Every                                                                    
     study  shows  that  fire  fighters  are  getting  these                                                                    
     cancers. We  worked hard  on the bill  to come  up with                                                                    
         the eight cancers that we thought had the best                                                                         
     evidence behind [them], the best scientific study.                                                                         
                                                                                                                                
2:04:27 PM                                                                                                                    
MR.  DRYGAS  said he  and  the  others  testifying are  not  paid                                                               
lobbyists; they chose to volunteer  their time. It is devastating                                                               
to  a  fire  fighter  to  contract  one  of  these  diseases  and                                                               
devastating  to their  families.  They are  just  asking that  it                                                               
isn't made  worse by having to  go through the stress  of that in                                                               
addition to  their disease  or illness  to prove  that it  is job                                                               
related. Few people  would say that the work of  fire fighters is                                                               
not appreciated.  This isn't  a labor  bill or  a union  bill. He                                                               
doesn't  even like  referring to  it as  a workers'  compensation                                                               
bill.  It's  a fire fighters' bill and it  shows that people care                                                               
about their fire fighters.                                                                                                      
                                                                                                                                
SENATOR  DYSON  asked  if  the  record  shows  that  forest  fire                                                               
fighters have much less of these kinds of diseases.                                                                             
                                                                                                                                
MR. DRYGAS replied that forestry  is a different type of problem.                                                               
Those are  wood smoke and  not the type  of situation found  in a                                                               
structure fire, especially  the interior of a  structure fire. He                                                               
said  he  has  talked  with   people  from  the  Bureau  of  Land                                                               
Management   (BLM)  who   have  asked   him  about   the  various                                                               
protections  they  use,  especially fighting  fires  around  dump                                                               
sites.                                                                                                                          
                                                                                                                                
2:08:31 PM                                                                                                                    
SENATOR THOMAS  asked if the  physicals fire fighters  receive in                                                               
Fairbanks are adequate for detecting these diseases early.                                                                      
                                                                                                                                
MR.  DRYGAS   replied  that  Fairbanks  has   an  extensive  pre-                                                               
employment  physical  as  well as  an  extensive  annual  two-day                                                               
physical. It  is in place to  protect both the city  and the fire                                                               
fighters. Smaller  departments, especially  volunteer departments                                                               
don't have an extensive annual physical.                                                                                        
                                                                                                                                
2:10:15 PM                                                                                                                    
SENATOR THOMAS  made a clarifying  motion that the  committee was                                                               
considering  the Senate  Labor &  Commerce committee  substitute,                                                               
version \M, and there was no objection.                                                                                         
                                                                                                                                
CHAIR DAVIS called back the sponsors of the bill.                                                                               
                                                                                                                                
SENATOR FRENCH said he had no further statements.                                                                               
                                                                                                                                
SENATOR  DYSON asked  if  the administration  is  okay with  this                                                               
bill.                                                                                                                           
                                                                                                                                
MR. LISANKIE  replied that the  administration is neutral  on the                                                               
bill.                                                                                                                           
                                                                                                                                
SENATOR  THOMAS  moved  to  report CSSB  117,  version  \M,  from                                                               
committee  with individual  recommendations  and attached  fiscal                                                               
note(s).  There  being no  objection,  CSSB  117(L&C) moved  from                                                               
committee.                                                                                                                      
                                                                                                                                

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