STRENGTH. STABILITY. CERTAINTY.

NEWS


Colorado State Fire Chief’s Annual Conference

The Colorado State Fire Chiefs will be hosting their annual conference, The Fire Chief’s Leadership Challenge from October 10th to the 13th in Keystone. CFHC Trust Administrator, Joe DePaepe, will be presenting on the voluntary cancer program on Thursday, October 12th at 10 am. Be sure to stop by our booth and say hello! You can find more information about the event here.

The Colorado State Fire Chiefs will be hosting their annual conference, The Fire Chief’s Leadership Challenge from October 10th to the 13th in Keystone. CFHC Trust Administrator, Joe DePaepe, will be presenting on the voluntary cancer program on Thursday, October 12th at 10 am. Be sure to stop by our booth and say hello! You […]

Collaboration Solves Broken Rebuttable Presumption Law for Colorado Firefighters

How do you know when the Workers’ Compensation firefighters’ presumption is broken?

  • Journalists discuss individual WC cancer cases on TV, in print, and online
  • It takes more than a year—or even two years—before a decision is made whether to accept or deny a claim
  • Firefighters pass away before being awarded benefits
  • Cancer cases go before the state Supreme Court

On May 3, 2017, Colorado Governor John Hickenlooper signed into law an opportunity for fire operations to voluntarily opt in to an accident-type policy, which is triggered upon a diagnosis of one of the five statutorily-covered cancers, thus getting out of the state’s rebuttable workers’ compensation presumption of cancer for firefighters.

What happened that led to the new opt-in voluntary program?

In May 2007, Colorado passed a bill that placed a rebuttable workers’ compensation presumption on five cancers. Under this law, the burden of proof moved from the firefighter having to prove the cancer was job-related to the employer now having to prove, with a preponderance of evidence, that the cancer was not job-related.

What was it that proved problematic for Colorado’s 2007 legislation?

Prior to the passage of the presumption law, a plaintiff employee would have spent months preparing their case by gathering evidence. After the law was passed, employers would have to spend a similar amount of time and effort to conduct an investigation of their own. This involved an invasive, time-consuming inquiry into exposures such as:

  • Conditions in the claimant’s current and previous places of residence
  • Environmental conditions at the claimant’s current and past places of residence
  • Hobbies
  • Genetics and family history
  • Lifestyle (smoking, dietary preferences, etc.)
  • Prior medical history

This scrutiny can be considered intrusive, but is necessary to make a reasonable determination whether the claimant has been exposed to known carcinogens linked to the five types of cancers covered in the statute outside of the workplace.

In Colorado, the workers’ compensation statute says the claims adjuster has only twenty days to determine the compensability of a claim or they must file a Tentative Notice of Contest (TNOC), subject to further investigation. An investigation like this simply cannot be completed in 20 days due to the amount of records that need to be obtained and thoroughly reviewed; therefore a TNOC is automatically sent when these claims are received. Many employees react to these notices with both shock and confusion, assuming the letter represents a flat denial. They respond by immediately seeking legal representation.

Now, here we are nine years later with many cases involving an attorney and taking six months to several years for investigation, and a high percentage going to court. There were three cases that finally settled after two years at the state Supreme Court. The rulings were widely seen to be in favor of an employer’s right to rebut the presumption with evidence that the cancer was not job-related. Everyone agreed that there had to be a better way to resolve this difficult issue. Handling the majority of an estimated 180 cancer claims over a nine year period in a hearing room has not worked for anyone.

In 2011, as WC rates and loss experience continued to compound and cause premiums to soar, a collaborative effort had already begun with the Colorado State Fire Chiefs (CSFC) and the Colorado Professional Fire Fighters (CPFF) agreeing to open a dialogue. In their conversations, they began to look for other ways to cover disease than through workers’ compensation. In 2013 firefighters were looking at a new presumption bill for heart attacks to be introduced in the 2014 legislation. The CPFF already had their legislation drafted but were willing to talk to the CSFC.

In early 2013, a group of stakeholders asked the administrator of the Colorado Special Districts WC public entity pool, to facilitate. We sat down and started with what the stakeholders did not like about the way things worked in general, and then moved to address these issues with solutions. By focusing on avoiding the problems with the cancer presumption, we found an easy-to-administer accident-type policy format that served everyone’s needs. CPFF felt at the end of the process that if this worked they would consider amending the 2008 WC presumption of cancer statute in favor of an accident-type program. This then became the motivation for the Chiefs and the workers’ compensation pools to make the program work.

In an interesting twist with the heart program, when this proposed mandatory legislation was introduced with both the union and the management association in lock step at the capital, the City Municipal League objected on the grounds that this was an unfunded mandate. In response, the CPFF sought assistance from the State who determined that solving cardiac issues for firefighters was deemed an important safety issue and earmarked $900,000 to reimburse fire operations that met the coverage criteria within the legislation.

For the cardiac program, we started with an insurance industry off-the-shelf solution appropriately priced, but found that underwriters got cold feet. Every accident market approached was skeptical of their ability to deliver our custom product in the time needed. This meant we had to be creative and restructure Multiple Employer Trust laws to accommodate a facility. We built our own program which kept the funds in Colorado, a concern of the governor, and was owned and managed by the members. This solution produced twice the benefit at a reduced cost. Three years later, the program covers one- third of Colorado firefighters. It has paid 90 percent of the 21 submitted claims within 10 days of completed claim form. Rejected claims simply did not meet eligibility requirements.

With the cardiac program working so well, all involved parties became confident that this model could work to solve the presumption issue for cancer as well. Since no funding was available we had to analyze how this accident coverage might work on a voluntary basis where fire operations could obtain coverage under an accident policy and not be liable under the earlier presumption statute. This meant that if a department ever left the program, they would fall back under the 2007 presumption law. Additionally, any firefighter working for a participating department can still file a workers’ compensation claim for cancer but they would have to do it under the 2006 pre-presumption workers’ compensation statute where the burden of proof falls on the employee. We structured it so any benefit received in that scenario would be offset by benefits received under the accident program.

Both of these programs work because our only goal is to address the issues with the presumption rule and apply solutions from other programs that work well. We do not provide health care, retirement, disability, death or spouse/dependent coverage. We simply award a cash benefit based on a diagnosis and an indication of severity to reimburse the anticipated out-of-pocket expenses. Cash awards are paid out over a period of time with limited conditions or offsets. The firefighter is encouraged financially to return to work. The awards are intended to reimburse the firefighter up front for the value of benefits given up under WC and are, for the most part, not taxable.

Employer’s Gains on Cancer Presumption:
  • Elimination of unlimited liability of a firefighter to come back to the department to file a cancer claim once they leave employment
  • No extended period of investigation leaving firefighter without a source of income or question on who is paying the medical bills
  • Payouts capped at $250,000 at highest level
  • Self-insured entities eligible for lower self-insured retentions and 15% to 20% reduced rates
  • Firefighters are incentivized to return to duty
  • Significant percentage of litigation cost savings
  • Elimination of perceived wedge issue between management and labor
Firefighter’s Gains on Cancer Presumption
  • No invasive investigation
  • Payment based on type and stage of cancer
  • Payments start within 10 days of completed claim form
  • Twice as many claims accepted funding same cancer cost as in prior 10 years
  • No offsets other an if a WC claim is filed under 2006 statute
  • Line of duty status as a condition of this program
  • No longer have to sue employer for equitable payment
  • Payments with consideration gained from reduced litigation cost
  • Not taxable, except for rehabilitation payments

The newly created Cancer program was launched on July 1, 2017. 2000 firefighters through 45 departments were founding members. Roughly 25% of the eligible paid firefighters and 10% of the eligible volunteers have signed up for the new program at the date of the writing of this article. The Board of Directors for the public entity pool we administrate has reimbursed the cost of this coverage in full while another WC Pool is considering its options. Commercial carriers have also outlined considerable discounts for their participating members effective January 1, 2018.

Recent pro-employer rulings in the state Supreme Court may embolden some fire departments to stay the course with the existing statutory model, but that flies in the face of potential public outcry over not doing the right thing for their firefighters. First responders are held in the highest esteem by everyone, from children to the elderly. We feel that is motivation enough. Garry Briese, Executive Director for the Colorado State Fire Chiefs Association, calls this program a “historic first-in-the-nation.” Management and labor came together to collaborate on an issue that was intended to benefit firefighters that was fraught with problems. We are all excited to see what successes lay ahead.

Joseph DePaepe CPCU, CIC
Trust Administration
Colorado Firefighter Heart and Cancer Benefits Trust
[email protected] How do you know when the Workers’ Compensation firefighters’ presumption is broken? Journalists discuss individual WC cancer cases on TV, in print, and online It takes more than a year—or even two years—before a decision is made whether to accept or deny a claim Firefighters pass away before being awarded benefits Cancer cases go before […]

Cancer: “On-the-Job” Injuries and Workers’ Compensation

Discussion of provisions SB17-214 subsection 13 regarding treatment as on the job illness or injury

There is definitely confusion surrounding this issue so we will clarify our understanding. The issue seems to come up when the phrase “ON-THE-JOB INJURY OR ILLNESS” is taken only in reference to one sentence and outside the context of the whole legislation.

In its entirety Section 13 specifically states that “This Subsection (13) does not affect any determination as to whether the cancer is covered under the “Workers’ Compensation Act of Colorado Articles 40 to 47 of Title 8.” This, in and of itself, should be enough clarity. The complete wording is:

(13) FOR THE PURPOSE OF EMPLOYER POLICIES AND BENEFITS, A CANCER DIAGNOSIS IS TREATED AS AN ON-THE-JOB INJURY OR ILLNESS. THIS SUBSECTION (13) DOES NOT AFFECT ANY DETERMINATION AS TO WHETHER THE CANCER IS COVERED UNDER THE “WORKERS’ COMPENSATION ACT OF COLORADO”, ARTICLES 40 TO 47 OF TITLE 8.

The Colorado Division of Workers’ Compensation added the above highlighted wording specifically to protect this employer designation of “treated as an on-the-job” from being interpreted as work-related for the purposes of workers’ compensation. This is simply a “condition of payment” agreed to by the employer for the sake of argument as reflected in the title of this subsection. The only purpose of the phrase “ON-THE-JOB INJURY OR ILLNESS” in the statute is to ensure that firefighters do not lose the Line of Duty benefit from their employers that are currently held. This Line of Duty benefit is a short term disability treatment typically associated with such an incident, and it varies from one department to another and ranges from nothing to one year’s salary. This subsection does not change Colorado workers’ compensation statute unlike Section 2 below.

As stated, this portion of the legislation does take cancer for firefighters out of WC:

SECTION 2. In Colorado Revised Statutes, 8-41-209, add (4) as follows: 8-41-209. Coverage for occupational diseases contracted by firefighters. (4) AN EMPLOYER WHO PARTICIPATES IN THE VOLUNTARY FIREFIGHTER CANCER BENEFITS PROGRAM CREATED IN PART 4 OF ARTICLE 5 OF TITLE 29 IS NOT SUBJECT TO THIS SECTION UNLESS THE EMPLOYER ENDS PARTICIPATION IN THAT PROGRAM.

By joining the Trust, fire operations no longer have any liability under the 2007 presumption law. To reemphasize, cancer classified as an “ON-THE-JOB INJURY” in Subsection 13 has no bearing given cancer’s exclusion from WC by law. Disease, as a general rule, is not covered by WC except where it can be proven to be work related. If cancer were not excluded from WC, health carriers would have to cover it the same way they did in 2006, and be subject to bad faith claims as they have no basis for denial. The new legislation was built on the premise that employers agreed to certain concessions in exchange for firefighters giving up their rights under the 2007 WC presumption statute:

  • There would be no investigation to determine the cause of the cancer because neither the employer nor the firefighter is conducting an investigation.
  • Employers agree to treat cancer as “in the line of duty,” even though it is debatable. This “Condition of Payment” as stated in the statute is part of the agreement, and does not change the previous WC statute nor does it constitute the burden of proof required under that statute.

A review of one health benefits carrier’s policy exclusions states:

Workers’ Compensation of Employer’s Liability. Financial responsibility for Services for any illness, injury, or condition, to the extent a payment or any other benefits, including any amount received as a settlement (collectively referred to as “Financial Benefits”) is provided under any workers’ compensation or employer’s liability law. We will provide Services even if it is unclear whether you are entitled to a Financial Benefit, but we may recover Charges for any such Services from the following sources

  1. Any source providing a Financial Benefit or from whom a Financial Benefit is due.
  2. You, to the extent that a Financial Benefit is provided or payable or would have been required if you had diligently sought to establish your rights to a Financial Benefit under any workers’ compensation or employer’s liability law.

Under the new legislation, firefighters are spared an invasive inquiry into their personal medical, family, and lifestyle histories to determine the source of the disease. Additionally, firefighters need to be aware that this is not workers’ compensation, but rather coverage that pays out-of-pocket expenses due to a covered cancer diagnosis.

We hope you find this discussion helpful. Please let me know where further clarification can be made. We would like to have this discussion distributed to all interested parties as we understand several of the self-insured share the same concerns.

For a printable version of this discussion, click here.

Discussion of provisions SB17-214 subsection 13 regarding treatment as on the job illness or injury There is definitely confusion surrounding this issue so we will clarify our understanding. The issue seems to come up when the phrase “ON-THE-JOB INJURY OR ILLNESS” is taken only in reference to one sentence and outside the context of the […]

Revised Combined Heart and Cancer Trust Agreement

Since the passing of the Voluntary Cancer Award Program bill earlier this May, the CFH Trust is proud to present the new Revised Combined Heart and Cancer Trust Agreement, which includes the Resolution as well as a checklist for your convenience. Please note that this is prerequisite paperwork to join the heart and/or cancer program, and must be adopted by the Member Governing Body.

Trust Agreement (IGA)

If you have any questions, please contact Mr. Lei Shi toll free at 1-844-769-6650 or directly at 503-943-6649 or email him at [email protected].

Since the passing of the Voluntary Cancer Award Program bill earlier this May, the CFH Trust is proud to present the new Revised Combined Heart and Cancer Trust Agreement, which includes the Resolution as well as a checklist for your convenience. Please note that this is prerequisite paperwork to join the heart and/or cancer program, […]

Governor Hickenlooper Signs Voluntary Cancer Award Program Bill

On May 3, Governor Hickenlooper signed Senate Bill 17-214 during a ceremony in his office. The bill, which had passed the House and Senate unanimously, was the result of more than two years of meetings, discussions, and legislative crafting by a multitude of partners. This new statute will enable the CFH Trust to create a first of its kind program to deliver rapid cancer benefits to firefighters suffering from one of five covered types of cancer: brain, digestive, genitourinary, hematological, and skin.

This program will allow participating fire departments to opt in to the Trust’s new Cancer Program and releases them from the 2007 presumptive cancer statute. This will allow fire departments to reign in workers’ compensation costs while delivering more timely payments to firefighters. In every regard, this is a win for firefighters and fire departments alike. We would like to take this opportunity to thank all contributors for their tireless work and spirit of cooperation in this historic accomplishment.

Going Forward

This news raises a lot of questions regarding how the Trust’s program will operate, and how workers’ compensation providers will respond. Here are a few fast facts to consider for now:

  • The program’s target start date is July 1, 2017, which mirrors the existing Heart Program’s coverage term.
  • Each program will work independently with no requirement to join both.
  • The Trust’s official name will be changed to the Colorado Firefighter Heart and Cancer Benefits Trust (CFHC Trust).
  • While it is not yet known what other workers’ compensation providers will do, the Colorado Special Districts Property and Liability Pool (CSD Pool) will be offsetting 100% of the cost of this coverage for members of its Workers’ Compensation program. For more information regarding this, contact the CSD Pool.
  • Visit this page for additional updates as they become available.
  • Please visit the FAQ for further information
On May 3, Governor Hickenlooper signed Senate Bill 17-214 during a ceremony in his office. The bill, which had passed the House and Senate unanimously, was the result of more than two years of meetings, discussions, and legislative crafting by a multitude of partners. This new statute will enable the CFH Trust to create a […]