Portsmouth Herald: Presumptive cancer law for firefighters still sidelined

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Presumptive cancer law for firefighters still sidelined

By Max Sullivan msullivan@seacoastonline.com

It was a year ago last Monday that 34-year-old Hampton firefighter Kyle Jameson lost his battle to cancer, and it will be five years May 30 since 39-year-old Portsmouth firefighter Jeff Bokum lost his fight with the disease.

Firefighters recognize them and others as having died in the line of duty, as studies show firefighters have a higher risk of cancer than the general public. Jameson in a video before his death attributed his non-Hodgkin’s lymphoma to his work.

However, a clause in New Hampshire Constitution nulls the state’s presumptive cancer law for firefighters until it is funded by the state. The state Supreme Court in 1990 ruled the law an unfunded mandate, and thus unconstitutional. That has left firefighters and their advocates frustrated.

The lack of funding leaves firefighters who battle cancer to pay many out of pocket costs, which can be financially devastating for their families.

“We’re certainly not the leader as far as states go in recognizing and or taking care of people in that way,” said Hampton Fire Chief Jameson Ayotte at a ceremony in March in which the Fallen Firefighter Foundation recognized Jameson. “We’re still not there in New Hampshire and we need to push a little harder to get that legislation through because the families of the people who are left behind, they deserve everything.”

Bill McQuillen, president of the Professional Firefighters of New Hampshire, said he expects another push to fund the law in the near future. The last effort was in 2014, but McQuillen said the effort only resulted in a study report.

The report included analysis provided by the New Hampshire Insurance Department that projected 2.075 insurance claims by firefighters for the year 2015 that would cost the state $390,142 if the law were funded. It also recommended the law’s language be amended to more clearly distinguish between occupational and non-work related cancers, stating that lack of clarity was the “definitive” reason for the Supreme Court’s ruling on the law.

An active Portsmouth firefighter, he worked with Bokum and the late firefighter Sarah Fox, who died of cancer months before Bokum. McQuillen was with both in their final days.

“I hope we can find a way to change it,” he said. “All these other states have found a way to do it. I’m quite certain we can find a way to do it… It’s a challenge, but at the same time, I suspect that we can find a way.”

Article 28-a in the New Hampshire Constitution bans unfunded mandates, meaning no law can force municipalities to do something without creating a revenue source at the state level to fund it.

New Hampshire state law RSA 281-A:17 states firefighters are due benefits for cancer if their cancer is a result of exposure to heat, radiation or a known or suspected carcinogen as defined by the International Agency for Research on Cancer. The law states there must be reasonable medical evidence on record that the firefighter was free of cancer at the beginning of his employment. Firefighters have the benefit of the presumption for 20 years after their retirement.

The law was the first unfunded mandate to be challenged before the New Hampshire Supreme Court after the state’s Constitutional Convention of 1984, when the ban on unfunded mandates was added to the Constitution.

Because the Legislature has not created a funding source for cancer benefits to firefighters, firefighters with cancer and their families must go without worker’s compensation benefits that would cover treatment. McQuillen said that also impacts the pension they receive. McQuillen said firefighters diagnosed with cancer technically are able to have their care covered by worker’s compensation, but linking cancer to a specific event is virtually impossible. McQuillen said that difficulty has been an argument against funding the law.

“The burden of proof’s on me… ‘This is where I was exposed, this is how it metastasized,’” he said. “You have to prove all this.”

A National Institute of Occupational Safety and Health study showed firefighters had 9 percent more cancer diagnoses than the general public from 1950 to 2009, and 14 percent more cancer-related deaths, according to the Centers for Disease Control and Prevention.

Dr. Emily Sparer, a researcher fellow at Dana-Farber Cancer Institute researching effects of cancer on firefighters in Boston, said cancer is difficult to link to specific fires due to the range of cancers that can result from various chemicals that burn in fires. She said it is also difficult as cancer typically develops over time from consistent exposure, not one incident.

“Yes, cancer (risk) is high, but the question, what cancers?” Sparer said. “It’s really hard to say exactly what your risk is. Different cancers have different risks.”

Sparer said it is interesting, though, that New Hampshire would pass a presumptive cancer law but refuse to fund it. “Clearly, there’s an agreement in the state when the law was passed that this is warranted,” she said. “They had to have some agreement there is an elevated risk.”

State Sen. Martha Fuller Clark, D-Portsmouth, said the law is one of a few unfunded mandates for which the Legislature has struggled to fund. The presumptive cancer law, she added, is “just another example of the turmoil” the state faces with revenue.

“I think that it reflects the fact that the state is always having to make hard choices because it usually does no have the revenues to meet the demands of the state,” she said.

State Rep. Neal Kurk, R-Weare, chairman of the House Finance Committee, said revenue has been going up in recent years, including this biennium. If firefighter advocates are going to take another stab at getting the law funded, Kurk said that rise in revenue might make this a good time to do so. However, he added that money will be sought by numerous other groups as well.

“They’ll also have to compete with the developmentally disabled who want more money, the schools who want more money, charter schools who want more money,” he said. “Any time the sun shines, there’s a lot of people out there making hay.”

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