CALIFORNIA COMPENSATION CASES
Vol. 88, No. 5 May 2023
A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions...
By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board
In 2022 there were 7,490 wildfires in California. They burned 362,455 acres...
By Christopher Mahon
Should temporary workers be treated separately under workers’ compensation law due to additional employment and income risks they may incur after workplace injuries? A new study...
Here's a noteworthy panel decision where a family member conveyed essential information to the AME on behalf of the injured employee. The Lexis headnote is below.
CA - NOTEWORTHY PANEL DECISIONS...
Oakland, CA – Part II of a California Workers’ Compensation Institute (CWCI) research series on low- volume/high-cost drugs used to treat California injured workers identifies three Dermatological drugs...
Karen C. Yotis, Esq., a Feature Resident Columnist for the LexisNexis Workers’ Compensation eNewsletter, provides insights into workplace issues and the nuts and bolts of the workers’ comp world.
Firefighters are a breed apart. From the 9/11 first responders who disappeared into the World Trade Center’s towering inferno to the 19 Granite Mountain Hotshots who died battling the Yarnell Hill Fire, these are the courageous ones who put themselves in mortal danger to save the lives and property of others. And while experience (and a plethora of research) has shown that firefighting is fraught with all sorts of risk, a new NIOSH study about California firefighters is shedding new light on a nationwide dilemma.
In “Risk of Cancer Among Firefighters in California, 1988-2007” published April 1, 2015 in the American Journal of Industrial Medicine, the authors examined almost 20 years of data to evaluate firefighters’ cancer risk. They posit that ongoing examination of firefighter cancer risk is warranted because the existing pool of scientific knowledge is based upon information gathered prior to 1990, well before the rise of the cancer risks that stem from modern advances in building materials. As one of the largest cancer studies to focus on the firefighting occupation, this study stands out from many of the rest because of its reporting on risk for an array of subtypes for leukemia, esopohageal cancer and lung cancer and because of what the authors refer to as “novel findings” on cancer risk for firefighters of non-white races and ethnicities (which in California turned out to be predominantly African American and Hispanic firefighters).
Firefighter Cancer Presumption Laws
Numerous prior studies have found a significant association between firefighting and an increased risk for developing a number of specific cancers (including colorectal, lung, melanoma, prostate, testis, urinary, kidney, brain, myeloma, non-Hodgkin lymphoma and leukemia). In recognition of the growing body of scientific evidence that connects various cancers to a firefighters’ work, 33 states have enacted workers’ compensation laws that provide a presumption of cancer for one or more types of cancers. The study explains:
“In 20 of these states, the language of the presumption legislation contains broad or nonspecific language that can be interpreted to cover any cancer experienced by a firefighter. In the other 13 states, only certain specific cancers are covered, most commonly leukemia (12 states), brain cancer (10 states), bladder cancer (9 states), non-Hodgkin lymphoma (9 states) and gastrointestinal cancer (8 states).”
Although not covered in the study, readers might be interested to examine how the California legislature has enacted firefighter and public safety officer presumptions for cancer and skin cancer. These statutory presumptions, which are set forth in the California Labor Code ("LC"), can be viewed in the following LexisNexis charts from the Herlick Handbook:
© Copyright 2015 LexisNexis. All rights reserved. Reprinted from Herlick, California Workers’ Compensation Handbook (LexisNexis).
Readers should also be aware that the governors of Michigan and Utah have signed two of the most recent bills on firefighter cancer presumptions, and Georgia, Connecticut and Ohio are on the radar for similar legislative activity in 2015. Movement is also afoot in New York where volunteer firefighters recently lobbied for a series of bills, that include provisions relating to presumptive cancer, prohibitions on the use of chemical flame retardants for residential upholstered furniture, and extensions of volunteer firefighters’ heart and lung benefits. Minnesota has also been poised to enact the nation’s toughest ban on fire retardants, but the number of prohibited chemicals originally included in the bill has been negotiated down from 10 to 4. As Susan Shaw, a professor in the Department of Public Health at the State University of New York-Albany and director and founder of the Marine & Environmental Research Institute explained when she testified on May 11 before the House Committee considering the Minnesota bill, “cancer is a looming personal catastrophe for each and every firefighter.” Shaw also told the panel that young firefighters are developing aggressive cancers at an earlier age than the general population.
The current study’s authors enter the fray with figures for the years 1988 to 2007 from the California Cancer Registry, a vast database that collects information from doctors, hospitals and other medical facilities on all cancers for California residents pursuant to a cancer reporting mandate that California passed in 1985. Out of a total of 678,132 cancer patients diagnosed in California who met all of the study’s eligibility requirements, the authors gleaned a study sample of 3,996 firefighters with cancer. These individuals were then stratified into three main categories: all firefighters combined, white firefighters, and firefighters of other race/ethnicity (predominantly African American and Hispanic). Each category (and certain combinations of category) was examined for instances of 32 specific cancer types.
Racial and Ethnic Differences for Cancer Risk
The study found that melanoma, prostate cancer and brain cancer were significantly elevated among all firefighters, regardless of race. Cancer of the esophagus, non-small cell lung cancer and acute myeloid leukemia were significantly elevated among all firefighters combined, and among white firefighters. Kidney cancer, multiple myeloma and overall leukemia were significantly elevated among all firefighters combined, and African American and Hispanic firefighters. Most surprisingly, a total of 12 cancers were significantly elevated for predominantly African American and Hispanic firefighters only. These high percentages of tongue cancer, melanoma, prostate cancer, testicular cancer, bladder cancer, kidney cancer, brain cancer, non-Hodgkin lymphoma, multiple myeloma, leukemia overall, chronic lymphocytic leukemia (CLL) and chronic myeloid leukemia (CML) observed among firefighters of other races and ethnicities did not occur with like frequency among the subgroups of all firefighters combined or white firefighters. What this all boils down to is that of the 32 cancers assessed, the risk for 14 specific cancers was “significantly elevated” in one or more of these firefighter groups.
While the study authors were careful to emphasize that the reasons for the race and ethnicity-related differences in firefighter cancer risk remain unclear, they did reference prior studies connecting race/ethnicity to the disadvantage of lesser opportunities, historical prejudice and discrimination (when seeking employment or promotions in fire departments), and selective assignment to busier fire stations. Side-stepping the obvious incendiary implications, the authors posit that these “societally imposed conditions, as experienced by firefighters of other race/ethnicity, may lead to differential exposure to carcinogens or may heighten susceptibility to the effects of carcinogenic exposures.”
New Building Materials
When underscoring the reasons for the significantly elevated cancer risk among firefighters, the study points to the introduction approximately 40 years ago of newer building materials in the form of engineered thermoplastics such as polyvinylidene fluoride and laminated veneer lumber, and the burning of plastics in home appliances, furniture and electronics. Firefighters can absorb these products through their exposed skin, even when using a self-contained breathing apparatus (SCBA).
Readers should note Susan Shaw’s additional testimony that, “firefighters inhale, ingest, and absorb hundreds of toxic, carcinogenic chemicals during every phase of firefighting — suppression, knockdown/ventilation, and cleanup.”
The authors readily admit the several limitations in their study. First, since the study used other cancer cases as controls, these controls could possibly bias the study’s findings “towards the null” if the control cancers that the authors selected are related to firefighting exposures. Second, industry and occupation (I&O) data was missing for 30 percent of cancer cases in the CCR, which could possibly have led to the introduction of ascertainment bias. Third, since I&O recording is not standardized, the information obtained might reference a cancer patient’s current job rather than their longest-held job. Fourth, volunteer firefighters may have been misclassified as non-firefighters because a volunteer role is unlikely to be captured as anyone’s longest held job. Fifth, irrespective of how many cancers may be influenced by lifestyle factors, the CCR does not include information about smoking, alcohol consumption, obesity, workplace exposures, length of employment, and actual job duties. Sixth, the study’s small sample size made it impossible for the authors to assess African Americans, Hispanics, or Asians on a separate basis. Finally, the study does not adjust for multiple comparisons, and some of its findings may have occurred as a result of chance.
When volunteer firefighters lobbied in New York for a series of firefighter bills, Brian McQueen of Oenida County told the story of his own cancer battle, when he learned the extent to which modern homes are equipped with substances that emit carcinogens when on fire and about the carcinogenic properties of the manufacturing materials for furniture, floors, walls and countless other household items. McQueen stated, “they are burning more plastics, they are burning more benzene, they are burning more formaldehyde.”
While some of the bravest continue to face life-threatening danger long after the blazes they fight are extinguished, this study adds valuable support to the already significant cache of credible evidence demonstrating the strong association between firefighting and exposure to cancer risk.
© Copyright 2015 LexisNexis. All rights reserved.