Legislature(2005 - 2006)BELTZ 211

04/20/2006 01:30 PM Senate LABOR & COMMERCE


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ HB 31 WORKERS' COMP: DISEASE PRESUMPTION TELECONFERENCED
Heard & Held
+ HB 338 CERTIF. OF FITNESS FOR EXPLOSIVE HANDLERS TELECONFERENCED
Moved CSHB 338(L&C) Out of Committee
*+ SB 315 DISPOSITION OF UNREDEEMED PROPERTY TELECONFERENCED
Moved CSSB 315(L&C) Out of Committee
+ Bills Previously Heard/Scheduled TELECONFERENCED
Including But Not Limited to:
+= HB 439 INSURANCE PRODUCT REGULATION COMPACT TELECONFERENCED
Moved CSHB 439(L&C)am Out of Committee
+= SB 282 BROADCASTING PROMOTING CHARITABLE GAMING TELECONFERENCED
Moved SB 282 Out of Committee
       CSSSHB  31(FIN)-WORKERS' COMP: DISEASE PRESUMPTION                                                                   
                                                                                                                                
CHAIR  CON   BUNDE  announced  CSSSHB   31(FIN)  to  be   up  for                                                               
consideration.                                                                                                                  
                                                                                                                                
REPRESENTATIVE  TOM ANDERSON,  sponsor of  HB 31,  explained that                                                               
the bill  has to do  with workers' compensation  for firefighters                                                               
and  first   responders.  These  folks  are   basically  enduring                                                               
exposure  on a  daily basis  to  smoke, heat,  and various  toxic                                                               
substances. As a  result, they are more likely  to contract heart                                                               
disease, cancer  and other  related problems.  Since firefighters                                                               
assume the  roll of  the state's  leading providers  of emergency                                                               
medical services,  they are also exposed  to infectious diseases.                                                               
Recognizing this  linkage, 38 states have  enacted a presumptuous                                                               
law, which  presumes that cardiovascular and  infectious diseases                                                               
and  certain cancers  are job-related  for  purposes of  workers'                                                               
compensation and disability retirement unless proven otherwise.                                                                 
                                                                                                                                
The Firefighters  Association asked him for  this legislation. It                                                               
is  fair  and   cost  effective  in  the  context   that  so  few                                                               
firefighters have  ever made this  claim; and it will  not affect                                                               
the risk pool.                                                                                                                  
                                                                                                                                
1:55:08 PM                                                                                                                    
REPRESENTATIVE ANDERSON  said that most states  have acknowledged                                                               
that  the occupational  hazards attributed  to firefighting  have                                                               
presumptive disabilities laws, which is  why 38 other states have                                                               
some  form  of this.  Alaska  firefighters  regularly respond  to                                                               
HAZMAT   incidences   involving    chemical,   radiological   and                                                               
biological hazards.                                                                                                             
                                                                                                                                
He  said  that  the  cancers covered  are  exposure-specific.  He                                                               
explained that  two firefighters  went to  enough fires  over the                                                               
course  of their  careers that  suddenly one  came up  with brain                                                               
cancer and one developed bladder  cancer. While those cancers are                                                               
mostly  hereditary,   these  men   didn't  have  that   in  their                                                               
hereditary records and suddenly developed  it. It was believed to                                                               
be from  their service and at  least one of them  wasn't covered.                                                               
He  mentioned that  having this  coverage  would also  be a  good                                                               
recruitment tool.                                                                                                               
                                                                                                                                
CHAIR BUNDE asked  if a smoker could receive  benefits under this                                                               
coverage if he developed lung cancer and was a firefighter also.                                                                
                                                                                                                                
REPRESENTATIVE ANDERSON  replied that  language on page  3, lines                                                               
16 - 18, indicated that as a smoker, he wouldn't qualify.                                                                       
                                                                                                                                
1:57:44 PM                                                                                                                    
JEFF BUSH,  Executive Director,  Alaska Public  Entity Insurance,                                                               
opposed  HB  31.  His  organization is  a  non-profit  pool  that                                                               
insures  18 Alaskan  municipalities  that employ  150 people  who                                                               
would be affected by this  legislation. He referenced a letter in                                                               
the committee  packets from Kevin Smith,  Alaska Municipal League                                                               
Joint Insurance Association - the  other pool that does municipal                                                               
insurance  - that  accurately reflected  his position,  which was                                                               
based  purely  on  financial considerations.  He  said  it  would                                                               
adversely  affect  the  insurance rates  for  municipalities.  It                                                               
wouldn't   affect   the  risk   pool   because   the  state   and                                                               
municipalities are  essentially self-insured  or belong  to self-                                                               
insured pools.                                                                                                                  
                                                                                                                                
His  major concern  was that  the  state's workers'  compensation                                                               
system  was designed  with  a  lot of  presumptions  in favor  of                                                               
coverage and in  most cases there already is  coverage. This bill                                                               
extends that  workers' compensation coverage to  some cases where                                                               
the disease  the person  develops is  truly not  work-related and                                                               
gives  a   presumption  to   firefighters  and   other  emergency                                                               
personnel that people in other occupations don't have.                                                                          
                                                                                                                                
2:00:05 PM                                                                                                                    
He said Mr.  Smith's letter estimated the cost  of coverage would                                                               
increase by  10 to  20 percent. The  Division of  Risk Management                                                               
pointed  out  in  its  fiscal note  that  the  presumption  would                                                               
require a  lot of sorting  out about  when it would  and wouldn't                                                               
apply and,  therefore, increase litigation, which  would add more                                                               
costs. Required  medical screenings  for emergency  personnel and                                                               
firefighters in order to prequalify  for this coverage would cost                                                               
more, as  well - an  additional $8 million for  municipalities in                                                               
the first  year alone.  In general, Mr.  Bush said  that workers'                                                               
compensation costs are always going up  and they are going up for                                                               
municipalities  just like  they are  for everyone  else and  this                                                               
just adds to the cost.                                                                                                          
                                                                                                                                
CHAIR BUNDE asked if the prescreening  cost would be borne by the                                                               
employee or potential employee.                                                                                                 
                                                                                                                                
MR. BUSH replied no, not as the bill is written now.                                                                            
                                                                                                                                
2:01:48 PM                                                                                                                    
TOM BOEDEKER, City  Manager, Soldotna, said he  had some concerns                                                               
in  general with  the premise  that firefighters  have more  risk                                                               
than medical  workers and others  in hazardous  professions. This                                                               
presumption would have  to be extended to  those professionals as                                                               
well, and  he thought that was  a door best left  closed. He also                                                               
opined the reason that the number  of people who applied for this                                                               
was  minimal was  because  a presumption  in  their favor  didn't                                                               
exist.  He  thought  that  would  change  significantly  if  this                                                               
measure went forward.                                                                                                           
                                                                                                                                
MR.  BOEDEKER also  had questions  about  the additional  expense                                                               
that  would  be  associated with  pre-employment  physicals  that                                                               
currently   don't  include   screening  for   cancer  and   other                                                               
conditions.                                                                                                                     
                                                                                                                                
2:04:49 PM                                                                                                                    
MIKE   DAVIDSON,   Legislative   Liaison,   Alaska   Professional                                                               
Firefighters' Association, supported HB  31. Many of the diseases                                                               
they  are discussing  don't result  from a  single exposure  to a                                                               
known carcinogen,  but rather  to continuous  exposure. Sometimes                                                               
emergency  response  personnel  are  exposed to  things  such  as                                                               
blood-borne pathogens,  but aren't  aware of  it until  after the                                                               
fact.                                                                                                                           
                                                                                                                                
He  said  that  firefighters  and law  enforcement  and  military                                                               
personnel are  very health conscious  and are healthier  than the                                                               
average populous.  Because of this  "healthy worker  effect" many                                                               
statistics    compared   firefighters    to   police    officers.                                                               
Firefighters in  American acquire  and die of  brain cancer  at a                                                               
rate  that is  88 percent  greater  than police  officers or  109                                                               
percent greater  than the normal  populace. They  acquire bladder                                                               
cancer  at an  111 percent  greater rate  than police  and a  319                                                               
percent  greater rate  than the  average  populace; they  acquire                                                               
non-Hodgkin's lymphoma at a 227  percent greater rate than police                                                               
and  acquire leukemia  at a  270  percent greater  rate than  the                                                               
police. They acquire skin cancer  at a nearly three times greater                                                               
rate than the average populace.                                                                                                 
                                                                                                                                
MR. DAVIDSON said the bill was  focused so it couldn't be applied                                                               
everywhere. To  qualify for  the cancer  provisions, you  have to                                                               
have  served  at  least  10  years as  a  firefighter,  based  on                                                               
documented  cases  of  exposures  and  cancers.  The  presumptive                                                               
coverage  only  extends  for  a  certain  period  of  time  after                                                               
finishing work - not to exceed 60  months - and is based on years                                                               
of  work.  An  exclusion  provision  was  established  for  known                                                               
tobacco  users and  an employer  could  refute any  claim with  a                                                               
preponderance of evidence including  the use of tobacco products,                                                               
physical  fitness,   weight,  lifestyle,  heredity   factors  and                                                               
exposure from other employment or non-employment activities.                                                                    
                                                                                                                                
The bill doesn't require employers  to provide physicals. It does                                                               
say you  don't qualify for the  presumption if you don't  have an                                                               
entry-level  physical. He  thought that  provision would  provide                                                               
protection for the  employer because it would create  a base line                                                               
for   contagious  diseases   prior   to   beginning  a   person's                                                               
employment.                                                                                                                     
                                                                                                                                
MR.  DAVIDSON argued  that he  thought this  bill would  decrease                                                               
litigation. People with terminal illnesses  have had to fight the                                                               
system in  their final months as  the exact date of  exposure was                                                               
established. The reality  is that the cause is not  from a simple                                                               
single toxic event, but rather continuous exposure.                                                                             
                                                                                                                                
Most states  have a legal  principle called the  "fireman's rule"                                                               
that says because  firefighters and police officers  are asked to                                                               
respond to  situations that  are beyond  their control,  they are                                                               
afforded less  protection when arriving at  those situations than                                                               
other  occupations.  Because  of  that,  they  deserve  increased                                                               
protections  from the  results of  that response.  An example  of                                                               
this  principle  being used  is  the  2002 Alaska  Supreme  Court                                                               
decision, Moody v. Delta Western.                                                                                               
                                                                                                                                
MR. DAVIDSON  said that the  majority of other  occupations, like                                                               
steel  working  and  road construction,  are  regulated  by  OSHA                                                               
[Occupational  Safety   and  Health  Administration]   and  NIOSH                                                               
[National  Institute for  Occupational  Safety  and Health]  that                                                               
establish  safety   standards  in   the  workplace.  But   it  is                                                               
impossible  for a  firefighter to  eliminate absorption  of toxic                                                               
byproducts  in his  work environment  - the  worst exposure  risk                                                               
being through the skin. He  concluded saying that this bill would                                                               
tremendously impact  the families of  the small number  of people                                                               
it would affect.                                                                                                                
                                                                                                                                
2:15:02 PM                                                                                                                    
KEVIN SMITH, Executive Director,  Alaska Municipal League's Joint                                                               
Insurance Association,  said the association is  a not-for-profit                                                               
self-insurance   mechanism  for   cities,  boroughs   and  school                                                               
districts  in  Alaska.   He  said  the  bill   as  drafted  turns                                                               
presumption  on its  head -  but only  for certain  employees and                                                               
certain conditions. As  it is now, a presumption  exists in favor                                                               
of compensability on  all claims and the  presumption is overcome                                                               
by substantial  evidence to the  contrary. Under the  standard in                                                               
HB 31, to  avoid the presumption, the employer  must disprove the                                                               
claim by a preponderance of evidence.  So it shifts the burden of                                                               
proof from the plaintiff to the defendant.                                                                                      
                                                                                                                                
2:17:35 PM                                                                                                                    
MR. SMITH  said the state's workers'  compensation system already                                                               
covers  claims  that are  clearly  work-related,  but the  things                                                               
contemplated  in  HB  31  have many  life  style  and  hereditary                                                               
causes.  He referenced  a  National  Fire Protection  Association                                                               
study  that showed  that 75  percent  of fatalities  in the  fire                                                               
service  are   heart  attacks  and   most  of  the   workers  had                                                               
preexisting  conditions.  It   was  a  call  to   arms  for  fire                                                               
departments to start recruiting  people in better condition. They                                                               
are automatically covered if they  have a heart attack picking up                                                               
a book with no consideration of diet, exercise or heredity.                                                                     
                                                                                                                                
2:18:52 PM                                                                                                                    
Regarding the comment  that 38 other states have  laws like this,                                                               
he remembered growing  up here that we don't care  how they do it                                                               
outside.  He thought  that many  states  had negotiated  language                                                               
like  this  in  their  pension  agreements  and  that  38  states                                                               
adopting this language  was an exaggeration. He  also thought the                                                               
timing  for this  issue was  poor considering  that the  workers'                                                               
compensation system was in the process of getting fixed.                                                                        
                                                                                                                                
CHAIR  BUNDE  asked  if   firefighters  have  traditional  health                                                               
insurance.                                                                                                                      
                                                                                                                                
MR. SMITH replied yes, particularly the career firefighters.                                                                    
                                                                                                                                
2:20:14 PM                                                                                                                    
DAVE  TALERICO, Mayor,  Denali Borough,  agreed with  Mr. Smith's                                                               
comments. He  said that  traditional workers'  compensation would                                                               
cover  any legitimate  on-the-job injuries  for everyone.  He was                                                               
particularly  troubled by  section  (c). He  concluded saying  he                                                               
opposed this bill.                                                                                                              
                                                                                                                                
CHAIR BUNDE said he would set the bill aside.                                                                                   

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