Bill to provide work comp for firefighter cancer diagnoses passed over

After approximately five hours of general file debate, a bill that would provide workers’ compensation benefits to firefighters who develop certain cancers was passed over Jan. 23 at the request of the introducer.

LB400, sponsored by Fremont Sen. Dave Wordekemper, would amend the Nebraska Workers’ Compensation Act to include cancer experienced by firefighters as a result of exposure to known carcinogens in the course of their employment.

As introduced last session, the bill would establish a rebuttable presumption that cancer experienced by a firefighter arose out of the course of employment. The measure would apply to professional and volunteer firefighters who have served for at least five years.

Retired firefighters would be eligible for medical benefits only and must be diagnosed within 60 months of retiring.

Wordekemper said the International Agency for Research on Cancer recently classified firefighting as a Group 1 carcinogen, meaning the profession itself is carcinogenic to humans and carries the highest level of cancer risk.

Twenty-eight states have passed similar legislation providing all firefighters with a rebuttable presumption for occupational cancer, he said, but Nebraska presumes that cancer is duty related only if a firefighter dies as a result of the disease.

“We already know from science that wearing contaminated gear and running into burning buildings filled with carcinogens causes cancer,” Wordekemper said. “I ask that we give firefighters … the proper protections they deserve.”

A pending Business and Labor Committee amendment would replace LB400 with a modified version of the original proposal.

The amendment would establish a rebuttable presumption only if two conditions are met: if a cancer was shown to be medically caused by employment-related exposure to cancer-causing substances, and if the firefighter’s previous physical examinations showed no evidence of cancer.

Kearney Sen. Stan Clouse offered an amendment to the committee amendment, adopted on a 25-20 vote, to address concerns about the inclusion of volunteer firefighters in LB400.

Under the amendment, a volunteer firefighter would be eligible for benefits under the Nebraska Workers’ Compensation Act only after serving for 10 years, during which time they must have actively participated in a minimum of 40% of the department’s drills and 25% of the emergency calls received by the department. The amendment also would change the bill’s operative date to Jan. 1, 2027.

Clouse said the changes would ensure that volunteer firefighters who are active and exposed to high levels of carcinogens are provided the same rebuttable presumption for occupational cancer.

“Cancer doesn’t discriminate between paid and volunteer fire departments,” he said.

Sen. George Dungan of Lincoln supported the bill and both amendments, saying municipalities and employers, not the firefighters who are battling cancer, should bear the burden of rebutting workers’ compensation claims. Individuals should not have to fight to afford treatment while also fighting for their lives, he said.

“We’re talking about people who have put their lives on the line … and they get cancer as a part of their job,” Dungan said. “I think we owe it to the individuals in that profession to give them this rebuttable presumption.”

Also speaking in support of LB400 and the amendments, Lincoln Sen. Danielle Conrad said a rebuttable presumption simply establishes a baseline for a legal argument while allowing the other party to disprove the claim by a preponderance of evidence.

Such presumptions are not uncommon in state law, she said, noting that Nebraska has provided a rebuttable presumption to police officers and firefighters for death and disability benefits as a result of hypertension and heart or respiratory defect and disease for over 50 years.

“It hasn’t bankrupted the municipalities … [or] clogged the courts,” Conrad said. “It’s a longstanding presumption that we have had on the books that works well to actually acknowledge the unique, inherent risks associated with the task of … serving as a first responder.”

Sen. Mike Jacobson of North Platte spoke in opposition to the bill, which he called the “mother of unfunded mandates.” He said the measure could increase costs for municipalities significantly and expressed concern that funds needed to pay cancer benefits would be supplemented by raising property taxes.

“If you look at rebuttable presumptions, you’ve basically opened up the flood gates [so] that anyone who gets cancer … will file for this benefit,” Jacobson said. “Where are we supposed to get that money?”

Syracuse Sen. Bob Hallstrom filed a series of procedural motions in opposition to LB400, saying the measure’s rebuttable presumption under the Workers’ Compensation Act does not exist for any other profession.

The cornerstone of the state’s workers’ compensation system has always placed the burden on the employee to prove that a condition occurred in the course of their employment, he said.

“I think we’re disrupting the workers’ compensation system,” Hallstrom said.

At Wordekemper’s request, LB400 was passed over to provide time for additional negotiations.

“After meeting with the opposition, we’ve come to an agreement to sit down and see if we can work out our differences,” he said.

The Legislature moved to the next item on the agenda without voting on the bill or the committee amendment.