One of the significant cost drivers in New Jersey workers’ compensation in the past four years has been the Thomas P. Canzanella Twenty First Century First Responders Protection Act passed in 2021. As a result of the passage of this law, municipalities have received hundreds of cancer-related claim petitions with no funding provided under the Legislature for this massive influx of claims. The pace of claim petitions being filed for cancer among firefighters is picking up each year.
The Canzanella law was passed for a good reason: to compensate public employees who are injured in response to events like 9-11. Most of the rather dense law deals with these issues including bioterrorism. The goal was to compensate public safety officials for injuries related to catastrophic emergences, epidemics and terrorist activities. However, few if any claim petitions have been filed for these reasons. There was, however, one other aspect of the law that has generated many hundreds of very costly claims. That part pertains to firefighters who develop cancer allegedly from work exposures. Opponents of the law correctly predicted that municipalities would be swamped with claim petitions seeking very large awards for cancer exposures, even prostate cancer claims. That is exactly what has happened. Typically settlement demands are for anywhere from $250,000 to $500,000 per case. Dependency claims can involve millions of dollars.
Before Canzanella was passed, only a rare cancer claim was ever filed by firefighters and almost never by retired firefighters. The Canzanella law changed everything by creating a statutory presumption in favor of compensability of cancer conditions affecting firefighters. The law did something no other law had ever done in New Jersey. It created a very long tail. It allows not only active firefighters to file workers’ compensation claims and enjoy the presumption. In addition, the law created a 20 year waiting period up to age 75 for retired firefighters. So if a firefighter should retire at age 55 in good health but develops cancer at age 75, the firefighter can file a claim petition and the Judge of Compensation must presume that the cancer is related to firefighting. The way the presumption works is that the burden of proof shifts to the employer to prove that the cancer condition is not related to firefighting. Otherwise the firefighter must prevail.
Municipalities have been receiving large numbers of claim petitions seeking permanent disability for every cancer imaginable: bile duct, kidney, skin, lung, stomach, bladder, breast, ovarian, leukemia, non-Hodgkins and Hodgkins lymphoma and yes, prostate cancer, which is the most common cancer affecting men and the most common cancer that is being claimed under Canzanella. All the law requires is seven years of service by the firefighter to permit the presumption of compensability to apply. This applies to part-time volunteer firefighters and full-time paid firefighters. Firefighters with less than seven years of service can still file the cancer claim, but the judge will not apply the legal presumption to the claim.
Unlike other kinds of workers’ compensation cases, such as leg injuries or hand injuries, cancer cases involve huge monetary exposures, well into six figures. There are two reasons for this: cancer is often very debilitating, having a significant impact on work and non-work life activities even if the cancer is in remission. Secondly, cancer settlements can only be made if the claimant and his or her spouse agrees to waive future rights to file a dependency claim. A municipality would be unwise to settle a cancer claim with a retired or working firefighter without getting a waiver of dependency rights. Should the claimant die from the cancer, the dependent spouse would file the very same claim petition seeking benefits for life, potentially millions of dollars. So spouses must agree to give up their future rights as part of the settlement, and that drives up the cost of settlement further.
The legislature had good intentions in passing the Canzanella Act in order to anticipate future catastrophic events. That was the main goal of the law. Doubtless, the Legislature did not appreciate that firefighters up to the age of 75 (retired for up to 20 years) would be flooding municipalities with all variety of very costly cancer claim petitions. Those are really the only cases being filed under the Canzanella law. Because there is no funding for the law, the claims are adding major exposures to municipal workers’ compensation programs. There are now lawyers who specialize just in filing cancer claims for firefighters.
Some of the cancers that are subject to claim petitions have been shown in the medical literature to be a risk of firefighting. For example, the medical literature supports a connection to lung cancer from firefighting; others have not been shown to be related to firefighting, but that is not stopping the claim petitions from being filed for every single type of cancer. Attorneys for municipalities contend that prostate cancer, for example, is extremely common to the male population at large and has not been shown to be related to firefighting.
What does the GSMJIF do in defending against these extremely costly claims?
- The defense team must identify board certified oncologists and experts who are familiar with the relationship in medical literature between firefighting and the specific cancer condition. These experts are expensive to hire but they are worth it if they can testify at trial that the alleged cancer has not been shown to be related to firefighting.
- Defense must often contact the Fire Department for records of calls to active fires and for information on whether the firefighter used appropriate breathing protection.
- Defense must investigate other independent causes of cancer, such as cigarette smoking.
- Defense often needs to obtain prior PCP records and all treating records to see if there is a potential statute of limitations defense to the claim. If an employee knows he has cancer and thinks it is related to firefighting but waits over two years to file, the municipality can win the case.
- The JIF needs to know about potential dependents (spouse or children under 21)
- Defense needs to look into family history of cancer
These cancer claims can be successfully fought, but they are high stakes cases that usually resolve on a Section 20 basis, which means that the case gets closed for good with no potential for a reopener. This if often preferable to a trying the case to a conclusion and leaving the decision of compensability to the Judge of Compensation. After the decision of the Judge of Compensation, the losing party always appeals given the high exposure in the case, and the process of getting to the Appellate Division tacks on another year to the life of the case.
John H. Geaney, Esq.,
Capehart Scatchard