Link between Firefighting, Cancer, Inequities around Women Hold up SB27



Kristopher A. Kachline

KRISTOPHER A. KACHLINE is an associate in Chartwell’s Valley Forge Office. He graduated from Muhlenberg College with a bachelor’s degree in History and Political Science and worked in the pharmaceutical industry for two years before law school. He graduated cum laude with his J.D. from Widener University School of Law in 2010. While in law school, Mr. Kachline served as senior staff on the Delaware Journal of Corporate Law, was...

Before a packed room of bill supporters and television cameras, senators pulled back from a long-awaited vote on workers’ compensation cancer coverage for firefighters Tuesday after an out-of-state witness highlighted purported discrepancies in the illnesses enumerated by SB27 (Patton). Among the bigger revelations was the bill’s exclusion of breast, uterine and other female cancers even as it expressly covers prostate and testicular cancers suffered by men.

The Ohio Municipal League (OML) brought in two witnesses to oppose the bill in its current form, attorney Josh Brown, director of communications and legislative advocate for OML and executive director of Ohio Association of Public Safety Directors; and Kris Kachline of Chartwell Law Offices in Philadelphia, who has defended local jurisdictions from firefighter cancer claims across the state of Pennsylvania.

“We want to reiterate that no firefighter is being denied treatment for cancer. The issue here is how a firefighter’s treatment will be paid for, not whether it will be paid for,” Brown told the committee, calling it a “fundamentally flawed bill with little evidentiary basis.”

“The evidence about firefighter cancer does not support the conclusion that firefighters are at a higher risk for most cancers than the general public -- and if there is evidence to that effect, current law provides a path into the workers compensation system,” he said, pointing to the three-part test for “occupational disease” devised by the Ohio Supreme Court.

Brown said the vote is still out on the true nexus between various types of cancer and environmental exposures of firefighting.

“The Ohio Revised Code is for settled issues of science -- not issues where the evidence is completely unsettled,” he said, turning his attack on the specific conditions enumerated in the bill. “The current evidence does not support the conclusion that firefighters’ rates of certain cancers are so high that Ohio law should mandate a presumption that every one of them is work-related.”

Kachline said 33 states have sought to define the relationship between cancer and firefighting, with wide-ranging approaches to the tumors covered or whether to identify any cancers at all. He listed some of the conditions that would be covered by the current version of SB27: cancers of the lung, brain, prostate, testicle, stomach, skin, colon and rectum as well as many forms of non-Hodgkin’s lymphoma, leukemia, and multiple myeloma. “Epidemiologic studies have been all over the map regarding the risk firefighters face, if any at all, for the development of cancer at some of those sites,” he said.

“Eight states appear to have taken female firefighters into account by listing breast cancer, but only two [have] specifically enumerated cancers of the female reproductive system.” They do not include Ohio, said Kachline. “Cancers of the breast, cervix, and uterus demonstrate risk estimates equal to or greater for female firefighters than do cancers of the prostate or testicles for male firefighters, yet there is no coverage under SB27 for female firefighters.”

Sen. Charleta Tavares (D-Columbus) challenged his recommendation to exclude firefighters from BWC cancer coverage who are known smokers, suggesting that relationship may not always be clear.

“Why wouldn’t we want to be more proactive and inclusive with people who have risked their lives?” she said, drawing similar thoughts from Sen. Frank LaRose (R-Copley).

“I want to err on the side of the firefighters and their families. I want to avoid the scenario where the people we’re trying to help spend their last days in a courtroom,” LaRose said.

Brown submitted a letter he had sent to the bill’s sponsor, Sen. Tom Patton (R-Strongsville), with a proposed amendment scrapping the bill in its current form and instead requiring the administrator of the Ohio Bureau of Workers' Compensation (BWC) to hold public hearings to review the science on links between cancer and firefighting, and to issue periodic, perhaps biennial, reports.

“The director would then be required to assess specifically whether the available evidence shows that the link between any particular cancer and firefighting is so strong as to warrant enumerating that type of cancer as an occupational disease for firefighters,” Brown’s letter stated.

Pushing back on OML’s position was workers’ comp attorney Karen Turano of Connor, Evans & Hafenstein in Columbus. Appearing on behalf of the Ohio Association of Professional Fire Fighters (OAPFF) and the Ohio Association for Justice, she conceded that studies on cancer and firefighting are as inconsistent as the pieces of legislation states have passed to address the issue.

“This research and scientific evidence does not mean the increased risk does not exist for firefighters. The opposition focuses on the differences between state legislation to prove that there is no standard or consensus in the scientific data to support a link between the firefighter occupation and cancer,” Turano said. “Rather than be misguided by the variety of statistics presented by the opposition, I encourage you to rely on the Ohio-conducted and Ohio BWC-funded meta-analysis study conducted in 2006 which did support a causal connection between our firefighters and cancer.”

She also addressed the three-part test for “occupational disease” formulated in the Ohio Supreme Court opinion State ex rel. Ohio Bell Telephone Company v. Krise (1975). Turano said proving causation under the ruling is a “practical impossibility” for most claimants.

Sen. Kenny Yuko (D-Richmond Heights), who had introduced the original bill on the subject in 2009, and an Akron firefighter with prostate cancer, Lt. John Beavers, joined Turano in pleading with the committee for a vote on the bill.

“We can’t wait until we get it absolutely correct,” Yuko said. “Meanwhile, we have firefighters waiting for us to do our job -- and we’re not doing it.”

Sen. Shannon Jones (R-Springboro), however, would press Turano on her sense of urgency when the bill would essentially discriminate against women firefighters with cancer. The witness responded that there are not enough female firefighters for reliable data on firefighting and cancers of the breasts and reproductive organs. Visibly puzzled, Jones said she felt a particular affinity for female firefighters.

“Women are also underrepresented in this profession,” she appeared to say of policymaking generally. “Just look around the room.”

Before the hearing adjourned, Chairman Jay Hottinger (R-Newark) announced that the vote on SB27 would be delayed while members of his caucus addressed unresolved questions around the bill.

Outside the hearing, he said the issue of typically female cancers is one of those questions.

“Sen. Jones raises a very legitimate point,” Hottinger said, adding that a move away from enumerated cancers in favor of a more general evidentiary test is not out of the question.

“Yes, that’s on the table. The bill as written is not set in stone,” he said. “We want to have the bill right; I think we’re getting closer.”

Hottinger could not say whether a vote would necessarily come before the summer break.


“It very well could be at the next committee meeting,” he said.
 

Story originally published in The Hannah Report on April 5, 2016.  Copyright 2016 Hannah News Service, Inc.