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.