Fire Law Blog Fire Service and Public Safety Legal Issues Blog by Curt Varone
Today’s burning question: Our union has been fighting for a cancer presumption provision in our collective bargaining agreement for years to no avail. We have even started working at the state level to get legislation enacted. Isn’t there a way we can force the city to accept the obvious: that firefighting increases the risk of contracting cancer?
Answer: I am not sure the solution is going to come from forcing anyone (the city or the state legislature) to adopt cancer presumptions through a lawsuit. Political pressure perhaps, but not a lawsuit.
In my mind there are two sets of issues when it comes to cancer presumption laws – neither of which can be addressed by a lawsuit.
1. Scientific data on cancer rates among firefighters. The problem is we really don’t have overwhelming data that conclusively links cancer to firefighting in a way that would stand a serious chance of winning in court. There is good data, and there are a lot of reasons why the data that does exist will probably never be conclusive enough for a court… but we don’t have overwhelming data. The data we have does show certain correlations between firefighting and some cancers – but IMHO it grossly underestimates the problem. As a result the city manager types can easily poke holes in the data – much like the cigarette industry poked holes in the cancer-cigarette debate in the early years. It didn’t change the underlying truth. The truth is the truth. But the lack of overwhelming data allows the bean counters to evade the truth. It reminds me of the Stuart Chase quote: “For those who believe, no proof is necessary. For those who don’t believe, no proof is possible.”
2. A social contract between a community and its firefighters. Under the social contract approach – firefighters agree to expose themselves repeatedly to cancer causing agents and conditions. In exchange the community agrees that if a firefighter develops cancer – it will be treated as a line of duty injury. In some respects the social contract approach can best be viewed by city manager types as an economic decision – that the risk of cancer in firefighters should be considered a cost of doing business for fire departments, and not an individual expense for the individual firefighter and his/her family to bear. It can even be insured against, or at least budgeted for.
Before someone accuses me of trivializing the risk of cancer in firefighters and reducing it to an economic level, let me make one important comment on the social contract approach: I understand that to firefighters – cancer presumption is so much more than an economic issue – it is an acknowledgement that their employer recognizes the risks that firefighters confront every day and agrees to take care of the firefighter and his/her family. But the argument has to make sense to the bean counters and the larger general public as well. The social contract approach does that. Its not an entitlement. Its not another government give-a-way.
Here is my argument to city managers or elected officials: if I were to dip you in a vat of carcinogens – let’s say a big vat of Malathion – insecticide… and in 20 years you develop cancer – the reality is you will not be able to prove that my dipping you in that vat 20 years ago caused your cancer. Not withstanding that, would you willingly dip yourself in the vat again the next day? And again the day after? And the day after. That is what your firefighters are doing when they go to fires. They are exposing themselves to carcinogens – the likes of which we do not even know because of the evolving nature of fires – over and over again for 20 or 30 years.
To me – at least until the data on #1 is more conclusive, #2 is our strongest argument. It doesn’t rely on a scientifically certain connection between exposures and cancer… a connection that may never be established to the required level of certainty for a court.
Regardless of our ability to prove or disprove the connection between exposures and cancer in a given case – the fact is that exposures to carcinogens are occurring. Cancer presumption laws or provisions – are intended to give peace of mind to the firefighters, and those who depend on the firefighters, to the extent that if the firefighter develops cancer it will be treated as a line of duty injury/illness.
