First Responder Cancer Claims: Basics of Presumption

Proving a medical diagnosis in an occupational disease case is difficult in any case because of the many environmental, genetic, and other factors which may contribute to the development of a medical condition. The Texas legislature has aimed to streamline this process for first responders who are battling cancers that are scientifically known to be connected to their line of work.

A bit of background. In any occupational disease case, the burden is on the employee to prove that the medical condition was caused by, or aggravated/accelerated/worsened, by the workplace exposure. According to the Texas Supreme Court in the still fairly recent landmark causation case, Transcontinental Insurance Company vs. Crump, that means the employee must prove the work was a substantial contributing factor, without which the condition would not have occurred. 

Part of the Crump decision also discussed that the expert must rule out other causes. For example, carpal tunnel syndrome may be caused by repetitive strenuous or vibratory activities, or it may be caused by being overweight or diabetic. An expert must consider those other possible sources of the condition. Various cancers can be caused by genetic factors (family history), exposure to chemicals, smoking, chewing tobacco, alcoholism, sexually transmitted diseases, etc. An expert must consider whether any of those situations would be relevant to to the specific cancer, whether it is present in the instant case, and whether the work was a substantial contributing and "but for" factor in causing the condition.

Moving to the other Robinson factors, we note that, in some cases, a physician's differential diagnosis may be too dependent upon the physician's subjective guesswork or produce too great a rate of error-for example, when there are several consistent, possible causes for a particular set of symptoms. Related to these factors, Transcontinental contends that Daller's diagnostic technique is not reliable because he did not exclude the other possible causes of Crump's death with reasonable medical probability. See TXI Transp. Co., 306 S.W.3d at 237 (“An expert's failure to rule out alternative causes of an incident may render his opinion unreliable.”); Robinson, 923 S.W.2d at 559 (“An expert who is trying to find a cause of something should carefully consider alternative causes. [An expert's] failure to rule out other causes of the damage renders his opinion little more than speculation.” (citation omitted)); see also Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 500 (Tex.1995) (“[T]o constitute evidence of causation, an expert opinion must rest in reasonable medical probability.”). Yet a medical causation expert need not “disprov[e] or discredit[ ] every possible cause other than the one espoused by him.” Viterbo v. Dow Chem. Co., 826 F.2d 420, 424 (5th Cir.1987). Few expert opinions would be reliable if the rule were otherwise. Still, if evidence presents “other plausible causes of the injury or condition that could be negated, the [proponent of the testimony] must offer evidence excluding those causes with reasonable certainty.” Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 720 (Tex.1997) (emphases added); see also Robinson, 923 S.W.2d at 558-59 (concluding that the trial court did not abuse its discretion by excluding testimony by an expert who “conducted no testing to exclude other possible causes ․ even though he admitted in his deposition that many of the symptoms could be caused by” other specific conditions).

This is often extremely difficult in occupational disease cases like cancer. It is well known that as we age we commonly have pre-cancerous cells and it is hard to sort out which factors may be causing the cancer. The legislature has determined that in order to properly care for first responders, and given the scientific literature studying the prevalence of certain cancers in that occupation, it is necessary to eliminate some unnecessary friction in that process. Certain cancers are presumed to be work-related if conditions are met under the statute.

According to the Government Code section on presumption for first responders and cancer:

Sec. 607.055. CANCER. (a) A firefighter or emergency medical technician who suffers from cancer resulting in death or total or partial disability is presumed to have developed the cancer during the course and scope of employment as a firefighter or emergency medical technician if:

(1) the firefighter or emergency medical technician:

(A) regularly responded on the scene to calls involving fires or fire fighting; or

(B) regularly responded to an event involving the documented release of radiation or a known or suspected carcinogen while the person was employed as a firefighter or emergency medical technician; and

(2) the cancer is known to be associated with fire fighting or exposure to heat, smoke, radiation, or a known or suspected carcinogen, as described by Subsection (b).

(b) This section applies only to a type of cancer that may be caused by exposure to heat, smoke, radiation, or a known or suspected carcinogen as determined by the International Agency for Research on Cancer.

So let's break this down. A firefighter or EMT who gets cancer is presumed to have gotten it at work if certain conditions are met. That means all the firefighter or EMT has to prove eligible status and the fact of having cancer, not the actual relationship between the work and the cancer. That is presumed by law.

Eligibility is established by showing regular response to the scene involving fires or fire fighting. The term regular is not defined. But all of this can be established either by department records or testimony. Also note "involving fires or fire fighting" does not mean that the employee must actually be fighting fires. Being on the scene is enough, and the aftermath of fires can be considered "involving fires." 

Alternatively, the employee can prove regular response to events involving release of radiation or known/suspected carcinogens. 

The cancer must be known to the International Agency for Research on Cancer to be associated with fire fighting or exposure to heat, smoke, radiation, or a known or suspected carcinogen. Please note this does NOT say that the cancer must be associated with firefighting-- it can be ANY known or suspected carcinogen exposure.

The employee must prove eligibility in terms of a few things related to employment other than exposure activities. The employee must prove a physical that failed to reveal evidence of the cancer. The employee must work five or more years as a firefighter or EMT. The cancer must be discovered during employment.

Further, the presumption would not apply if the cancer can be caused by tobacco and either the employee was a user of tobacco in any way, or the spouse was a smoker.

Sec. 607.052. APPLICABILITY. (a) Notwithstanding any other law, this subchapter applies only to a firefighter or emergency medical technician who:

(1) on becoming employed or during employment as a firefighter or emergency medical technician, received a physical examination that failed to reveal evidence of the illness or disease for which benefits or compensation are sought using a presumption established by this subchapter;

(2) is employed for five or more years as a firefighter or emergency medical technician; and

(3) seeks benefits or compensation for a disease or illness covered by this subchapter that is discovered during employment as a firefighter or emergency medical technician.

(b) A presumption under this subchapter does not apply:

(1) to a determination of a survivor's eligibility for benefits under Chapter 615;

(2) in a cause of action brought in a state or federal court except for judicial review of a proceeding in which there has been a grant or denial of employment-related benefits or compensation;

(3) to a determination regarding benefits or compensation under a life or disability insurance policy purchased by or on behalf of the firefighter or emergency medical technician that provides coverage in addition to any benefits or compensation required by law; or

(4) if the disease or illness for which benefits or compensation is sought is known to be caused by the use of tobacco and:

(A) the firefighter or emergency medical technician is or has been a user of tobacco; or

(B) the firefighter's or emergency medical technician's spouse has, during the marriage, been a user of tobacco that is consumed through smoking.

(c) This subchapter does not create a cause of action.

(d) This subchapter does not enlarge or establish a right to any benefit or compensation or eligibility for any benefit or compensation.

(e) A firefighter or emergency medical technician who uses a presumption established under this subchapter is entitled only to the benefits or compensation to which the firefighter or emergency medical technician would otherwise be entitled to receive at the time the claim for benefits or compensation is filed.

(f) For purposes of this subchapter, an individual described by Section 607.051(3)(B) is considered to have been employed or compensated while the individual actively served as a volunteer firefighter. An individual who actively serves as a volunteer firefighter is one who participates in a minimum of 40 percent of the drills conducted by the individual's department and 25 percent of the fire or other emergency calls received by the department during the time that the volunteer firefighter is on call.

(g) This subchapter applies to a firefighter or emergency medical technician who provides services as an employee of an entity created by an interlocal agreement.

(h) Subsection (b)(4) only prevents the application of the presumption authorized by this subchapter and does not affect the right of a firefighter or emergency medical technician to provide proof, without the use of that presumption, that an injury or illness occurred during the course and scope of employment.

 

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