Hawaii-2017-HB913-Amended

SECTION 1. The legislature finds that firefighters can be exposed to contaminants from fires that are known or suspected to cause cancer. Firefighters are exposed to multiple carcinogens and toxicants through incident exposure as residential and vehicle fires release highly concentrated toxicants from plastics and synthetics. In October 2013, researchers from the National Institute for Occupational Safety and Health published a study that found that firefighters have a higher risk than the general population of being diagnosed with cancer. The study looked at cancers and cancer deaths among 30,000 firefighters from Chicago, Philadelphia, and San Francisco fire departments and found that cancers of the respiratory, digestive, and urinary systems accounted for most of the higher rates of cancer in the study population, suggesting that firefighters are more likely to develop these types of cancers. Additionally, a study in 2005 showed that firefighters have significantly higher risks than the general population of getting testicular cancer, multiple myeloma, non-Hodgkin's lymphoma, skin cancer, brain and malignant melanoma, rectal cancer, prostate cancer, buccal cavity and pharynx cancer, stomach cancer, colon cancer, and leukemia. The Hawaii Medical Service Association conducted a review of their members who were Hawaii firefighters in collective bargaining unit (11) over a defined period of time to estimate the incidence of cancer among certain Hawaii Fire Fighters Association members compared to a comparable population of Hawaii Medical Service Association members. Although the study was limited to two thousand male firefighters, the data showed that cancer rates among members of the Hawaii Fire Fighters Association were much higher than the general population for leukemia, buccal and pharynx cancer, colon cancer, prostate cancer, and brain and malignant melanoma.

The legislature further finds that H.C.R. No. 32, H.D. 1, S.D. 1, regular session of 2016, requested the convening of a task force to examine cancer in the firefighting profession. The task force discussed, among other things, recommendations for revisions to state workers' compensation laws that expedite the delivery of workers' compensation medical and other benefits for firefighters diagnosed with cancer, the percentages of cancer diagnoses in Hawaii for the general population compared to firefighters, and estimated costs to the State and counties if there were to be an acceleration of workers' compensation benefits for firefighters diagnosed with cancer. These discussions led to the discovery that others states, such as Arizona, California, Nevada, North Dakota, and Virginia, have legislation that specifically mentions coverage of occupational diseases for firefighters due to the higher risks of contaminant exposure for firefighters.

The legislature notes that existing state law pertaining to pensions and retirement systems explicitly recognizes the inherent occupational hazard of exposure to smoke inhalation, toxic gases, chemical fumes, and other toxic vapors and includes a rebuttable presumption that firefighters who are permanently incapacitated for duty or who die as a result of any condition or impairment of health caused by any disease of the heart, lungs, or respiratory system contracted the diseases while in the performance of duty and receive certain benefits. Providing sufficient medical coverage for firefighters recognizes the inherent occupational hazards that come with the job, ensures that firefighters receive proper medical treatment in a timely manner, and lessens the impact of emotional toil, financial burdens, and decreased quality of life on the families of firefighters diagnosed with cancer.

The legislature also finds that fire departments are expected to use the best equipment and management practices available to identify and prevent firefighters from getting cancer. The recommendations of the task force include formulating best practices regarding annual exams and recommended medical precautions for all fire departments, as well as identifying gaps in wellness programs and examining screening codes and claims for data trends. It is important to ensure that adequate awareness exists among firefighters about obtaining screenings early in order to detect conditions as soon as possible.

The purpose of this Act is to fully effectuate the intent of the current statutory presumption regarding hazardous duty related diseases to ensure timely, appropriate medical care and related benefits for individuals who are or have previous service as a firefighter and develop cancer, by:

(1) Clarifying the presumption that the cancer arose out of and in the course of employment as a firefighter, regardless of whether the condition arises at any time after the individual ends service as a firefighter;

(2) Providing access to medical coverage for cancer treatment;

(3) Creating a process separate from the existing workers' compensation system under chapter 386, Hawaii Revised Statutes, to be used to access certain treatments and benefits due to lost wages or death due to the cancer; and

(4) Authorizing the awarding of certain retirement benefits for disability or death due to the cancer if certain conditions are met.

The intent of this Act is not to be a new benefit or to enhance the benefits of firefighters, but to improve access for firefighters to comprehensive medical coverage and other benefits for hazardous duty related diseases that are presumed to arise out of and in the course of employment. The legislature notes that unlike most job-related injuries whose treatment is compensable through the workers' compensation system, cancer among firefighters and former firefighters is a disease that often does not develop at a definite, identifiable time or place and may not develop or be diagnosed until many years after employment as a firefighter. Nevertheless, like employees with other job-related injuries, individuals who develop cancer that arises out of and in the course of employment as a firefighter require treatment, including specialty treatments, from health care providers who typically are unwilling to accept patients for treatment reimbursable through a workers' compensation mechanism.

SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

HAZARDOUS DUTY RELATED DISEASES treatment insurance benefits

§ -1 Definitions. As used in this chapter:

"Director" means the director of labor and industrial relations.

"Disability" has the same meaning as in section 386-1.

"Firefighter" means all federal, state, and county employees whose principal duties are to prevent and fight fires.

"Hazardous duty related disease" means cancer.

"Known carcinogen" means any of the carcinogenic agents recognized as such by the International Agency for Research on Cancer or the department of health.

"Total disability" means disability to an extent that a person has no reasonable prospect of finding regular employment of any kind in the normal labor market.

§ -2 Health coverage. (a) All individual and group accident and health or sickness insurance policies issued in this State, individual or group hospital or medical service plan contracts, and nonprofit mutual benefit society, fraternal benefit society, and health maintenance organization health plan contracts shall include within their hospital and medical coverage the benefits of hazardous duty related disease treatment for firefighters, except that this section shall not apply to insurance policies that are issued solely for single diseases, or otherwise limited, specialized coverage.

(b) The policies and contracts set forth in subsection (a) shall not be construed as reducing any obligation to provide services to an individual under any publicly funded program, an individualized family service plan, an individualized education program, or an individualized service plan.

(1) Care that is custodial in nature;

(2) Services and supplies that are not clinically appropriate;

(3) Services provided by family or household members;

(4) Treatments considered experimental; and

(5) Services provided outside of the State.

(d) Coverage under this section may be subject to copayment, deductible, and coinsurance provisions of a policy that are no less favorable than the copayment, deductible, and coinsurance provisions for substantially all medical services covered by the plan contract.

(e) The fees for medical care services and supplies for firefighters who develop a hazardous duty related disease shall be fully reimbursed based on the usual and customary charges comparable to mutual benefit societies, health maintenance organizations, and the Hawaii employer-union health benefits trust fund for fees actually received by providers of health care services and supplies.

§ -3 Inapplicability of workers' compensation law. Chapter 386 shall not apply to firefighters who develop a hazardous duty related disease and receive benefits pursuant to this chapter.

§ -4 Hazardous duty related disease benefits; presumption; screenings. (a) If a firefighter develops a hazardous duty related disease, the condition shall be presumed to arise out of and in the course of employment as a firefighter. The benefits shall include a benefit equal to one hundred per cent of the firefighter's average weekly wages, disability indemnity, and death benefits paid for by the employer.

(b) The presumption under subsection (a) shall be rebuttable only by a finding of substantial evidence to the contrary. The presumption shall be extended to a firefighter in perpetuity following termination of service.

(c) The employer shall pay for annual appropriate screenings and preventative screenings for hazardous duty related diseases for the firefighter; provided that the firefighter need not be diagnosed with a hazardous duty related disease as a condition for payment by the employer of the costs of receiving a preventative screening for a hazardous duty related disease.

§ -5 Disability retirement. (a) If a firefighter who has completed one or more years of credited service develops a hazardous duty related disease or dies due to a hazardous duty related disease, the death or hazardous duty related disease shall be presumed to arise out of and in the course of employment; provided that the firefighter shall have taken a physical examination upon becoming a firefighter, or subsequent thereto, that failed to reveal any evidence of the condition or impairment to health.

The benefits that are awarded upon manifestation of or death from a hazardous duty related disease shall include full hospital, surgical, medical treatment, disability indemnity, and death benefits, as provided by this chapter and chapter 88. The computation of benefits authorized pursuant to this section shall not include the firefighter's credited vacation or sick leave while undergoing medical treatment for the condition.

(b) Notwithstanding the existence of nonindustrial predisposing or contributing factors, any firefighter permanently incapacitated from the performance of duty as a result of a hazardous duty related disease, shall receive a service-connected disability retirement if the firefighter was exposed to a known carcinogen due to the performance of job duties.

(c) The presumption under subsection (a) shall be rebuttable only by a finding of substantial evidence to the contrary. This presumption shall be extended to a firefighter in perpetuity following termination of service.

§ -6 Payment after death. When a firefighter is entitled to weekly income and indemnity benefits for permanent total disability and dies from any cause other than a hazardous duty related disease, payment of any unpaid balance of the benefits to the extent that the employer is liable, shall be made to the firefighter's dependents as follows:

(1) To a dependent widow, widower, or reciprocal beneficiary, for the use of the widow, widower, or reciprocal beneficiary, and the dependent children, if any. The director may from time to time apportion the compensation among the widow, widower, or reciprocal beneficiary, and any dependent children;

(2) If there is no dependent widow, widower, or reciprocal beneficiary, but one or more dependent children, then to the child or children to be divided equally among them if more than one;

(3) If there is no dependent widow, widower, reciprocal beneficiary, or child, but there is a dependent parent, then to the parent, or if both parents are dependent, to both of them, to be divided equally between them; or if there are no parents, but a dependent grandparent, then to the grandparent, or if more than one, then to all of them to be divided equally among them; and

(4) If there is no dependent widow, widower, reciprocal beneficiary, child, parent, or grandparent, but there is a dependent grandchild, brother, or sister, then to the dependent, or if more than one, then to all of them to be divided equally among them.

§ -7 Total disability; permanent; temporary. (a) Where a hazardous duty related disease causes permanent total disability, the employer shall pay the firefighter a weekly benefit equal to one hundred per cent of the firefighter's weekly wages.

The employer shall pay permanent total disability benefits promptly as they accrue to the firefighter entitled to the benefits without waiting for a decision from the director. The first payment of benefits shall become due and shall be paid no later than on the tenth day after the employer has been notified of the occurrence of the total disability and thereafter shall be paid weekly.

(b) When a hazardous duty related disease causes total disability not determined to be permanent in character, the employer shall pay the firefighter a weekly benefit of one hundred per cent of the firefighter's average weekly wages for the duration of the disability. If a firefighter is unable to complete a regular daily work shift due to a hazardous duty related disease, the firefighter shall be deemed totally disabled for work for that day.

The employer shall pay temporary total disability benefits promptly as they accrue to the entitled firefighter without waiting for a decision from the director. The first payment of benefits shall become due and shall be paid no later than on the tenth day after the employer has been notified of the occurrence of the total disability and then shall be paid weekly.

The payment of benefits pursuant to this subsection shall only be terminated if the firefighter is able to resume work. When the employer is of the opinion that temporary total disability benefits should be terminated, the employer shall notify the firefighter in writing at least two weeks prior to the date when the last payment is to be made. The notice shall give the reason for stopping payment and shall inform the firefighter that the firefighter may make a written request to the director for a hearing if the firefighter disagrees with the employer. Upon receipt of the request from the firefighter, the director shall conduct a hearing as expeditiously as possible and render a prompt decision. If the firefighter is unable to perform light work, if offered, temporary total disability benefits shall not be discontinued based solely on the inability to perform or continue to perform light work.

§ -8 Entitlement to and rate of compensation. (a) Where a hazardous duty related disease causes death, the employer shall pay funeral expenses not to exceed ten times the maximum weekly benefit rate to the mortician and for burial expenses not to exceed five times the maximum weekly benefit rate to the cemetery selected by the family including a reciprocal beneficiary or next of kin of the deceased or in the absence of family, a reciprocal beneficiary or next of kin, by the employer. Payments shall be made directly to the mortician and cemetery.

(b) In addition, the employer shall pay weekly benefits to the deceased's dependents at the percentages of the deceased's average weekly wages specified below; provided that the weekly benefits shall not exceed the maximum weekly benefit rate prescribed in this section divided by .6667 and not less than the minimum prescribed in this section divided by .6667:

(1) To the dependent widow, widower, or reciprocal beneficiary, if there are no dependent children, fifty per cent.

(2) To the dependent widow, widower, or reciprocal beneficiary, if there are one or more dependent children of the deceased, 66.6667 per cent. The compensation to the widow, widower, or reciprocal beneficiary shall be for the use and benefit of the widow, widower, or reciprocal beneficiary and of the dependent children, and the director from time to time may apportion the compensation between them in a way as the director deems best.

(3) If there is no dependent widow, widower, or reciprocal beneficiary, but there is a dependent child, then to the child forty per cent, and if there is more than one dependent child, then to the children in equal parts 66.6667 per cent.

(4) If there is no dependent widow, widower, or reciprocal beneficiary, or child, but there is a dependent parent, then to the parent, if wholly dependent fifty per cent, or if partially dependent twenty-five per cent; provided that if both parents are dependent, then one-half of the compensation provided in this paragraph to each of them; if there is no dependent parent, but one or more dependent grandparents, then to each of them the same compensation as to a parent.

(5) If there is no dependent widow, widower, or reciprocal beneficiary, child, parent or grandparent, but there is a dependent grandchild, brother, or sister, or two or more of them, then to those dependents thirty-five per cent for one dependent, increased by fifteen per cent for each additional dependent, to be divided equally among the dependents if more than one.

(c) The sum of all weekly benefits payable to the dependents of the deceased employee shall not exceed one hundred per cent of the firefighter's average weekly wages, computed by observing the limits specified in subsection (b), and accordingly, individual benefits shall be proportionally reduced.

(d) If there are no dependents who are entitled to benefits under this section, the employer shall pay an amount equal to twenty-five per cent of three hundred twelve times the effective maximum weekly benefit rate provided in this section, to the nondependent parent or parents.

§ -9 Dependents. (a) The following persons, and no others, shall be deemed dependents and entitled to income and indemnity benefits under this chapter:

(1) A child who is:

(A) Unmarried and under eighteen years;

(B) Unmarried and under twenty years if the child is a full-time student at a high school, business school, or technical school, or unmarried and under twenty-two years if the child is a full-time undergraduate student at a college;

(D) Married and under eighteen years, if actually dependent upon the deceased;

(2) The surviving spouse or reciprocal beneficiary, if either living with the deceased at the time of the hazardous duty related disease or actually dependent upon the deceased;

(3) A parent or grandparent, if actually dependent upon the deceased; and

(4) A grandchild, brother, or sister, if under eighteen years or incapable of self-support, and actually and wholly dependent upon the deceased.

(b) A person shall be deemed to be actually dependent upon the deceased, if the deceased contributed all or a substantial portion of the living expenses of that person at the time of being diagnosed with a hazardous duty related disease.

(c) Alien dependents not residing in the United States at the time that the hazardous duty related disease was diagnosed or leaving the United States subsequently shall maintain annual proof of dependency as required by the director.

§ -10 Duration of dependents' weekly benefits. (a) The weekly benefits to dependents shall continue:

(1) To a surviving spouse or reciprocal beneficiary, until death, remarriage, marriage, or entry into a new reciprocal beneficiary relationship with two years' compensation in one sum upon remarriage, marriage, or entry into a new reciprocal beneficiary relationship;

(2) To or for a child:

(A) So long as unmarried, until attainment of the age of eighteen;

(B) So long as unmarried, until attainment of the age of:

(i) Twenty if the child is a full-time student at a high school, business school, technical school; or

(ii) Twenty-two if the child is a full-time undergraduate student at a college;

(D) Until marriage, except that in the case of a married child under eighteen, weekly benefits shall continue during the period of actual dependency until attainment of the age of eighteen;

(3) To a parent or grandparent, for the duration, whether continuous or not, of the actual dependency; provided that the amount of the weekly benefits shall at no time exceed the amount payable at the time of death; and

(4) To or for a grandchild, brother, or sister, for the period in which that grandchild, brother, or sister remains actually and wholly dependent until attainment of the age of eighteen or termination of the incapability of self-support.

(b) The aggregate weekly benefits payable on account of any one death shall not exceed the product of three hundred twelve times the effective maximum weekly benefit rate prescribed in section -8, but this limitation shall not apply with respect to benefits to a surviving spouse or reciprocal beneficiary who is physically or mentally incapable of self-support and unmarried as long as that surviving spouse or reciprocal beneficiary remains in that condition and to benefits to a child and to benefits to an unmarried child over eighteen incapable of self-support as long as that unmarried child is otherwise entitled to compensation.

(c) Upon the cessation under this section of compensation to or for any person, the benefits of the remaining dependents in the same class for any further period during which they are entitled to weekly payments shall be in the amounts which they would have received, had they been the only dependents entitled to benefits at the time of the firefighter's death.

§ -11 Presumptions. In any proceeding for the enforcement of a claim for compensation under this chapter, it shall be presumed, in the absence of substantial evidence to the contrary, that:

(1) The claim is for a hazardous duty related disease;

(2) Sufficient notice of the hazardous duty related disease has been given;

(3) The hazardous duty related disease was not caused by the intoxication of the firefighter; and

(4) The hazardous duty related disease was not caused by the wilful intention of the firefighter."

SECTION 3. This Act shall take effect on July 1, 2050.

HOUSE OF REPRESENTATIVES	H.B. NO.	913
TWENTY-NINTH LEGISLATURE, 2017		H.D. 2
STATE OF HAWAII		S.D. 1