Disability Loophole

Federal firefighters are trapped in a Catch-22 health crisis.

Firefighters do risky work, a presumption that is doubly true for the federal firefighters who not only fight wildfires but provide emergency response and medical technician services for military and civilian facilities. Despite these unusual duties, federal firefighters face higher hurdles to claiming disability benefits than most of their state and local counterparts.

According to the Labor Department's Office of Workers' Compensation Programs, which handles disability claims for federal workers, "A traumatic injury . . . must be caused by a specific event or incident or series of events or incidents within a single day or work shift."

Similarly, an exposure incident, which qualifies an employee for infectious disease coverage, is "contact with blood or other potentially infectious materials that results from the performance of an employee's duties."

Dolline Hatchett, a Labor Department spokeswoman, says the requirements are not aimed at identifying a precise incident, but rather to determine "only that the worker was exposed on the job . . . to a disease-producing agent, and that the worker's medical condition was caused by that exposure."

Many state and local firefighters are held to a different standard. Instead of putting the burden of proof on firefighters to demonstrate which incident caused their disability, laws in almost 40 states say conditions such as leukemia, lymphoma and lung disease are so linked to exposure to smoke, heat, stress and toxic substances that it is not firefighters' responsibility to prove that they contracted such an illness through their work.

Advocates for presumptive disability coverage for federal firefighters say the burden of proof is too high and dissuades firefighters from even applying for bene-fits they deserve. "The [Office of Workers' Compensation Programs] basically asks the employee to be able to definitively provide a source of the disability. If a firefighter gets hepatitis, he might not be able to track down the specific patient," says James B. Johnson, a district vice president of the Washington-based International Association of Fire Fighters.

Johnson says the standard is even more onerous because of high risks taken on by federal firefighters who respond to facilities such as military bases. "They're required to deal with hazardous materials that aren't normally found in a city or a municipal area," he says. "Obviously, there are a lot of weapons systems, explosives. . . . They're trained to handle those things, but there's an increased risk in terms of exposure. And often they don't even know what they're getting into because they're classified, and they're not even told until afterward."

IAFF and its allies in Congress have been pushing presumptive disability bills for more than six years. In 2001, 2002, 2003 and 2006, efforts withered. The House Government Reform Subcommittee on Federal Workforce and Agency Organization held hearings in 2005, when 8 million acres burned in 66,753 reported wildfires across the country, but never took action on the bill.

The number of House and Senate supporters has grown since 2001 as the long-term health concerns of emergency workers at the World Trade Center site has raised the issue's profile. A bipartisan group of 108 representatives joined Rep. Lois Capps, D-Calif., in sponsoring the measure she introduced in February. She says she was moved when one of the many federal firefighters who live and work at Air Force and Navy bases in her district contracted brain cancer. "After fighting through the painful treatments and radiation therapy, this father of three found himself responsible for tens of thousands of dollars in co-pays for his treatment," she says.

"Without presumptive care protection, he has only limited federal insurance coverage and must rely on the support of his fellow firefighters from the IAFF."

But the fact that firefighters aren't pursuing disability claims they don't think they can win actually could be hurting their case in Congress, which has told the IAFF that the potential cost of a presumptive disability standard is a concern. Congressional leaders have asked the Government Accountability Office to study the cost of a presumptive disability law, but that study has not been completed.

"We really don't know how many federal employees would be affected, because a lot of employees don't even file claims anymore because they know they're going to be denied," Johnson says.

When firefighters do file, they sometimes are shunted off into other retirement programs, further complicating the IAFF's efforts to convince lawmakers that presumptive disability coverage is necessary.

"One of our people will go to their personnel officer after receiving a diagnosis, and the person in the office will say to them, we don't pay workers' comp for occupational illnesses, you're just going to have to retire through this other retirement program," says Barry Kasinitz, IAFF's director of governmental affairs. "So they fill out the paperwork, and off they go and retire, and there is no record of that person having been denied benefits."

Johnson says OWCP might need to adopt a new approach to assessing the ailments that are an inherent hazard of firefighters' work. "Technology has improved and scientific research has improved, and now we're seeing how certain exposures result in certain cancers," he says. "OWCP was originally put in place for simpler disability issues like back injury."

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