Litigation Tips In Firefighter Cancer Presumption Cases


1. The firefighter has an affirmative obligation to report to the District, in writing, the existence of a covered cancer as an occupational disease claim when the cancer is discovered. See § 8-41-209, C.R.S.(statute listing covered cancers). The date of occupational disease onset is likely the date the cancer diagnosis is made. The presumption applies only to diagnoses made after May 17, 2007. Regardless of severity all cancers of the brain, digestive system, hematological system, genitourinary system and skin should be reported to the District.

2. When a firefighter cancer presumption case arises the following documents will be required from the firefighter:

a. A list of fire exposures, hazmat calls, etc. since hiring. Firefighters are advised that it is prudent to keep a running record of dispatches.

b. Copies of all physical exams, including the hiring physical, from the date of hiring, ongoing, to establish the absence of cancer both at the time of hiring, and prior to May 17, 2007.

c. Copies of all records concerning cancer treatment and diagnosis. This includes initial documentation from family doctor who suspected the presence of a cancer and records from treating specialists. The firefighter needs to establish that the cancer was not discovered until after May 17, 2007, to ensure that the cancer falls under the cancer presumption statute.

d. W-2 form for the year prior to cancer diagnosis to establish the firefighter's average weekly wage. Alternately, the paycheck of earnings for the period immediately prior to the diagnosis.

e. Records (spreadsheets), establishing cancer treatment co-pays with supporting documents.

f. Mileage ledgers showing trips to and from the doctors. Effective January 1, 2009, these are reimbursed at the rate of .55¢ per mile if a case is compensable. The easiest way to get this information is to ask each provider to provide a computer print out of visits.

g. Information on the identity of the health insurance carrier, since the health insurance carrier has a right of subrogation, i.e. reimbursement for medical bills it has expended on the firefighter's behalf for cancer treatment.

h. A listing of lost time from work occurring as a result of cancer treatment, with supporting documentation.

i. Computer spreadsheet, and documentation for non covered co-pays.

j. Mileage going to and from doctor appointments.

Medical Treatment Issues

1. The District has the right to select a physician to treat the firefighter. This right must be effectuated "in the first instance" and will be impacted by the fact that cancer treatment requires highly specialized practitioners. Thus, the firefighter will likely retain the right to be treated by the cancer specialist. Despite this, the firefighter should request the company selected doctor for a referral back to the cancer specialist. The District can challenge ongoing treatment as not being reasonable, necessary or related, particularly while the determination of liability is pending.

2. The employer also retains the right to refer the firefighter for evaluation to other doctors. These will likely be occupational medicine doctors who are familiar with the firefighter cancer presumption. Some occupational doctors will make statements supporting the cancer's occupational relatedness. This has happened in a few recent cases but expect that these doctors will be "taught" to opine differently in the future.

3. All treatment must be in a chain of authorization. The firefighter should not choose a doctor without a referral from either the employer, the cancer specialist, or one of the practitioners to whom the cancer specialist may have referred the firefighter.

4. In the majority cases do not expect the cancer specialist to be familiar with the firefighter cancer presumption.

5. Any reimbursement to a medical provider is subject to the Division of Work Comp's medical fee schedule. Under the Work Comp Act providers are prohibited from attempting collection against individuals for authorized treatments. See § 8-42-101 (d), C.R.S. However, if the treatment is rendered outside of the chain of authorization it could become the firefighter's liability and the health insurance carrier may deny treatment since most health insurance policies exclude payment for work related injuries/occupational diseases. Treatment in the chain of referral is never subject to co-pays.

6. The firefighter always retains the right to reject treatment. However, should treatment be rejected the individual may be considered at maximum medical improvement ("MMI") and any entitlement to any temporary disability benefits may stop. If there is a choice between surgery and a less invasive treatment, this choice will likely be given to the firefighter by the doctor. If the firefighter opts for less invasive treatment entitlement to benefits continues.

Temporary Disability Benefits

1.The firefighter will likely use sick and vacation leave during the period of cancer treatment. Should the cancer be determined to be a compensable occupational disease, the employer is prohibited from avoiding it's obligation to pay temporary disability benefits by using the firefighter's sick, vacation, or other leave. This means that the firefighter will receive temporary disability in addition to the sick and vacation leave payments. See § 8-42-124, C.R.S. Although the Division of Workers' Compensation lacks the authority to insist that the employer reinstates the used sick or vacation time, the Employer often may reinstate these benefits for financial reasons, e.g. money savings.

2. Issues may arise about leave policies in various Districts. Each District is different. The Workers' Compensation Office of Administrative Courts ("OAC") does not have jurisdiction to interpret leave policies, but only the entitlement to workers' compensation benefits. These are not taxable.

3. If the firefighter does not return to work and is determined to be disabled under the FPPA, the payment for FPPA disability benefits will offset a portion of any entitlement to any permanent medical impairment benefits. If the firefighter is determined by the FPPA to be totally disabled as a result of the firefighter's occupational disease cancer, there is a beneficial tax treatment of FPPA benefits.

Permanent Impairment

1. When the firefighter is released at maximum medical improvement ("MMI") post cancer treatment, the firefighter may be entitled to permanent medical impairment benefits based on an impairment rating determination under the AMA Guideline to the Evaluation of Permanent Impairment (Third Ed.)(Revised). The determination of the extent of impairment, if any, will be established by the medical opinion from a doctor certified to perform ratings by the Division of Workers' Compensation.

2.The best result for firefighters diagnosed with, or treated for any cancer, is a return to work.