Thirty-four states in the U.S. have passed legislation recognizing that firefighters face an elevated risk for some types of cancers, and offering varying levels of death benefits to surviving family, with a few even providing for disability payments to affected members who become too ill to continue working. Known as “presumptive cancer legislation,” these laws create a presumption that certain cancers believed to be caused by hazards firefighters face on the job are indeed the cause, relieving those firefighters of the burden of proving to their respective states that their cancer is fire service connected, and placing that burden on the states to prove that there is no connection.
Arkansas is one of the 16 states that does not offer that protection, but a legislative effort to do just that in 2015 did effect a compromise that to date, those on both sides of the legislative battle say is working.
Men and women who fight fires for a living face a great many risks on the job. The possibility of a disabling or life threatening injury is ever present. According to the U.S. Fire Administration, in 2015, 90 firefighters died as the result of a duty related injury or illness. Sixty of those deaths were attributed to job-related illness, those brought on by stress or exertion, 54 of which were recorded as heart attacks, and six due to stroke.
Even so, the International Association of Fire Fighters, a labor union representing over 300,000 firefighters and emergency medical services personnel in the U.S. and Canada, a far greater risk is exposure to carcinogens that are released whenever a building or vehicle catches fire. Studies conducted over the past 10 years reveal that cancer deaths among firefighters have been on the rise since 1950. The IAFF claims that of all firefighters on the job today, about 60 percent will die of cancer-related causes.
Upon entry to a structure fire, firefighters are exposed to a toxic soup of burning chemicals, synthetics, and plastics of all description, much of it carcinogenic. A typical house fire burns as hot as 1,200 to 1,500 degrees Fahrenheit, which is not hot enough to consume these materials altogether, but is enough to spew partially burned particulate matter into the air, where it settles on fire trucks and firefighters, and is eventually tracked back into the fire station.
Wade Marshall, a fire captain with the Benton Fire Department, was concerned that cancer diagnoses were increasing among firefighters in recent years, and had been trying to get the state to take action for several years. Currently serving as president of the Arkansas Professional Firefighters Association, he was legislative chair in 2013 when he met Rep. Greg Leding, D-Fayetteville.
“Wade and I worked on some legislation in my first term and he brought this to me late in my second term, in 2013,” Leding recalled. “We decided it was too late in the session to do something with it so we put it off until 2015.”
In 2015, Leding sponsored House Bill 1274, to create a presumptive law covering firefighters who contract one or more of several cancers that have been connected to toxins they encounter as part of the job. In its original form, the bill contained language to codify a presumption of cause related to workplace hazards applicable to firefighters who succumb to “leukemia, lymphoma, mesothelioma, and multiple myeloma and cancer of the brain, digestive tract, urinary tract, liver, skin, breast, cervical, thyroid, prostate, testicle, or a cancer that has been found by research and statistics to show higher instances of occurrence in firefighters than in the general population.” The bill stipulated a payment of $150,000 to be paid to a designated beneficiary, surviving spouse, or surviving children younger than 22.
Almost immediately, the bill ran into a problem.
“We had the votes to pass the bill in the House but the trouble was we weren’t going to be able to get it out of [the House State Agencies and Governmental Affairs] committee because of the objections of the committee chair, Nate Bell,” Leding said. “He called it the worst bill of the session and we got word that he was going to introduce a hostile amendment without any warning.”
Leding said he got in touch with Bell prior to the committee meeting and agreed to pull the bill down so an amendment could be drafted. Bell had prepared an amendment removing the presumptive language, creating a panel to review claims cases, and eliminating a tuition waiver for attendance at state colleges and universities provided to children of public safety employees who are killed in the line of duty.
Leding agreed to eliminate the presumptive language and replace it with a review panel, but to leave the waiver alone. Bell agreed. The bill was reintroduced, passed as amended, and the amended bill was shepherded through the Senate by then Sen. Jon Woods, R-Springdale, and was signed into law by Gov. Asa Hutchinson.
Contacted at his farm in Mena, Bell, who left the House in January at the end of a third term, remembered the attempt to get the bill through his committee.
“We looked at some data from states that had passed presumptive legislation and what we found was an increase across the board in payout of benefits,” Bell said. Another objection he had was that the bill made no distinction in differences in the number of hours firefighters from different types of departments may have actually engaged in active fire suppression activities.
“Take a volunteer firefighter who may respond to two fires a year versus a full timer who may respond to four a day,” Bell said. “There’s a significant difference in the exposure risk that wasn’t taken into account in the original bill.”
Leding brought the bill back after an amendment was crafted to remove the presumptive language, replacing it with language to create a seven member review panel appointed by the governor. The panel makeup is one oncologist, two fulltime firefighters (one selected from a list of names provided by the APFF), two volunteer firefighters (one from a list provided by the APFF), one fire chief, and one citizen with experience either in healthcare or firefighter relations. The panel, by law must meet at least once a year, reviews claims for death benefits of firefighters who have died of cancer and makes recommendations to the Arkansas Claims Commission based on the panel opinion after studying each case whether full or partial payment is warranted, or no payment if it decides exposure to carcinogens had no role in a particular case.
Bell said the amendments satisfied him and he dropped his opposition.
“I said in my well speech, I believe we took what was a really bad bill and made it a really good bill, and in the process we accomplished the goal of the original bill’s sponsors while not creating a bunch of unintended consequences at the same time.”
Leding said, while he found Bell’s opposition, and his solution at odds with his stated ideology, getting the bill passed was the objective.
“I did find it a bit humorous that the chief opponent, Rep. Bell, a small government type, wanted to create an extra layer of bureaucracy before he would drop his opposition,” Leding said. “As far as calling it the worst bill of the session, well, Nate is given to a bit of hyperbole from time to time. It certainly wasn’t the worst piece of legislation by a long shot. But, at the end of the day, getting it done was more important than how we got it done.
Wade Marshall said by and large, he believes the amendment was a workable compromise, and gives the state the flexibility to modify awards if the panel deems it advisable based upon its findings. He noted the bill as originally written contained some provisions that may have proven to be problematic.
“This was originally written as a worker’s compensation bill,” he said, referring to legislation introduced in 2011 by then-Sen. Jimmy Jeffress, D-Crossett. (Jeffress’ bill never made it out of committee and died at the end of the session. “We wanted worker’s comp to cover it but in hindsight, do you really want a worker’s comp doctor directing your cancer treatment? They aren’t looking for the best quality care so much as they’re looking for the lowest cost care.”
Marshall said the bill faced stiff opposition from the worker’s compensation lobby, which he understood.
“Can you imagine what it would do to the workman’s comp trust if they had to pay for cancer treatments, even bare bones treatment?” he said. “It was pared down to strictly a death benefit, with no provision for treatment, and there are limits on that.”
Some of the eligibility requirements that were in the original bill that were included in Leding’s bill are a minimum of 10 years employment as a firefighter, an age cutoff of 68, and no cancer diagnosis prior to the start of firefighter service.
“Arkansas is a conservative state and we’ve got to consider that,” he said. “Consider this; firefighters have a 40 percent higher chance of getting colon cancer than the general public. Smokers also have a 40 percent higher chance of colon cancer. So what about a firefighter who smokes? We’ve provided for the panel’s ability to recommend a partial award. We’ve also provided for the panel to be able to consider emerging scientific studies that may find other links we don’t know about today.
Tom Jenkins, the fire chief in Rogers, was appointed by Hutchinson to serve on the panel.
Jenkins called passage of the law a positive step forward on the part of the state, as there is no federal recognition of cancer risk in fire service, with the exception of firefighters who were a part of the emergency response and recovery operations at the World Trade Center after the Sept. 11, 2001 terrorist attacks.
“I see this as an important first step for Arkansas, a step toward presumptive legislation,” said Jenkins. “There are a lot of states, like the state of Oklahoma where I’m from, that is you contract certain types of cancer, that is considered disability in the line of duty for your pension, which to me is the right thing to do. There is clinical evidence that links A to B.”
Jenkins said his enthusiasm for serving on the committee comes from his conviction that more must be done for firefighters, but he recognizes that a lot of opposition will have to be overcome for that to happen.
“I remember hearing people saying, when we started up this panel, things like, ‘well, we don’t want firefighters taking advantage of this benefit,” he said. “You hear non-firefighters saying that. They need to remember, to get this benefit, you’ve got to die. That’s the first step.”
Jenkins, who serves as the president of the International Association of Fire Chiefs, said the numbers of firefighters who die annually due to recognized duty related injury and illness would pale in comparison if the numbers of firefighters who die of cancer every year were included in those numbers.
“We unfortunately have an epidemic on our hands that is not in the press,” he said. “It’s not an out in front, sexy story that people look at every day. We’ve got a lot of room for improvement but the Benefit Review Panel is a great first step, and one that Chief [Brad] Hardin.”
Hardin, who is a Battalion Chief Brad Hardin for the Fayetteville Fire Department and chair of the Panel, said the reality of what firefighters are dealing with hit home for him when he participated in a study to measure the conditions firefighters are subjected to when they enter a burning building, and the reaction of their bodies to those conditions. A controlled burn of a dormitory slated for demolition was used to conduct the test, with firefighters entering the building to simulate fire suppression activities after it was set ablaze.
“They outfitted us with vests underneath our protective gear to measure our temperature, heart rate, essentially an EKG, and temperature sensors were placed in the rooms about a foot apart,” Hardin said. “The temperature inside our protective gear was 112 degrees. One the outside it was 800 degrees. That was on my chest and on my neck with only a quarter inch thick hood, and nothing to block the vapor. Esophageal Cancer is one of those cancers we’re so at risk of contracting.”
During a fire, toxic, carcinogen-laden smoke envelopes firefighters, whose protective gear, called “turnouts,” consisting of pants, overcoat, boots, gloves, and permeable hoods protects from the extreme heat but is not sealed to keep smoke and soot from collecting throughout the gear. The chemicals contained in the smoke and soot collect inside the turnouts and are partially absorbed into the body through transdermal transmission – it literally leaches into the skin.
And every five degree rise in body temperature increases the efficiency of transdermal transmission by 400 percent, according to IAFF research. Also, the needed washing machines designed to clean turnouts, called Washer Extractors, cost anywhere from $12,000 to $24,000, well out of reach of many smaller fire departments.
To assist with that effort, Leding introduced a bill in January to require fire departments to either purchase a washer-extractor, enter into an agreement with a larger department to use their washer-extractor, or to enter into an agreement whereby an intergovernmental council would purchase the equipment to be shared by all departments in the affected county. House Bill 1758, he said, was nearly doomed by opposition when the bill fell short by 10 votes of the 51 needed to pass on the first vote.
After getting the vote expunged, the bill received 50 votes upon reconsideration. After the second defeat, Leding said House rules required a two-thirds majority for passage, so he gave up the effort.
“At that point, I was furious,” Leding said. “If I couldn’t get 51 votes there was no way I was going to get 67. But a couple of Republicans came up and helped resurrect it. In fact, the one most responsible was probably Michelle Gray (Rep. Michelle Gray, R-Melbourne). She told me, ‘you know what, I feel bad. My department actually wanted this and I didn’t think they did. Can we bring it back?’ I told her if she could get 67 67 votes to get the second vote expunged and get the votes to pass the bill, I’d bring it back.”
Gray rounded up the 67 votes needed to expunge the previous vote and 53 votes to pass the bill. Leding said Gray’s help, and several other examples of bipartisan cooperation were notable in a session marked by partisan divisions.
“I didn’t bother to try and get any co-sponsors for the bill, but Rep. Mickey Gates, a Republican from Hot Springs, suggested a change, which I included, and I asked if he’d like to be a co-sponsor. He agreed and said Senator Alan Clark, who is from around that area (Clark is a Republican from Lonsdale), might like to be the Senate co-sponsor.”
Clark agreed to sponsor the bill in the Senate, and guided the bill to easy passage by a 24-2 margin and the bill was signed into law as Act 762 of 2017 on April 6.
“I think it helped a lot that this Fayetteville liberal was able to work with these conservatives, with whom I had nothing in common with,” Leding said. “But we worked together and made some good things happen.”
Leding, who is leaving his House seat and making a run for the Senate in the 2018 election, did not say if he has more legislation in mind should he return to the statehouse as the senator from Fayetteville.