Pezzano Mickey & Bornstein September 2019

SEPT 2019

(908) 293-7330 | www.pmblawfirm.com

Perspectives PMB

THE 21ST CENTURY FIRST RESPONDERS PROTECTION ACT

In the summer of 2019, the Thomas P. Canzanella 21st Century First Responders Protection Act became law in New Jersey. This impactful piece of legislation enhances safeguards for first responders, including those who volunteered during and after 9/11.

Therefore, it is appropriate to assure they are provided with a higher level of support commensurate with their sacrifice.

Changing the Burden of Proof for All Public SafetyWorkers

The Canzanella Act changes the burden of proof for public safety workers, including paid and volunteer firefighters, police officers, members of community emergency response teams, members of first aid or rescue squads, and medical personnel responding to catastrophic incidents. The Act provides that if a public safety worker demonstrates exposure to a serious communicable disease, biological warfare, an epidemic-related pathogen, carcinogen, vaccine, or biological toxin, all medical screening for disease shall be covered through workers’ compensation. If the worker is diagnosed with a disease in the future following such an exposure, there is now a rebuttable presumption that the injury, disability, or death caused by the disease is causally related to the employment and shall therefore be covered by workers’ compensation. The presumption of causal relationship may only be rebutted by “clear and convincing proof” that the exposure is not linked to the injury or death. Firefighters and Cancer The new law provides specific protections for firefighters in particular, due to their frequent smoke inhalation. Any disability or death of a firefighter caused by pulmonary disease or cancer is presumed to be compensable under the WCA if the firefighter has completed at least seven years of service. The firefighter may be required to undergo, at the expense of their employer, reasonable testing and monitoring to evaluate causal relationship. Right to Know About Exposure Unless the exposure was obvious, how would employees even know that they have come into contact with a dangerous substance? Employers are already required to maintain records

regarding the presence of known carcinogens and other dangerous substances under the New Jersey Right to Know (RTK) law. All employers covered by the RTK law must submit a list of all hazardous chemicals to either the Department of Health or Department of Environmental Protection. Those surveys are then sent out to local fire and police departments. The Canzanella Act also requires employers to maintain records regarding dangerous substances present at locations where public servants were deployed if they were personally exposed to carcinogens. Hope for Our Heroes Despite all of the advances we have made in modern medicine, science is often still unable to pinpoint the cause of many diseases. While employers should not be required to bear the burden of covering the cost of conditions which may be entirely unrelated to employment, our public safety workers need to know that they and their families will be protected should they fall in the line of duty. By establishing a rebuttable presumption of causal relationship following an exposure to dangerous substances, New Jersey law now enables our heroes to access workers’ compensation benefits swiftly. My dad, a former member of the NYPD and the reason why first responders will always hold a special place in my heart

The Difficulty of Proving an Occupational Disease

In the past, public safety workers responding to a terrorist attack or natural disaster would face the same burden of proof as any other employee under the New Jersey Workers’ Compensation Act (WCA) to obtain medical and disability benefits. The WCA provides that it is the injured worker’s burden to prove that an occupational disease arose from and in the course of employment, and the WCA limits compensation to those occupational diseases which are due “in a material degree” to conditions which are “characteristic of or peculiar to a particular … place of employment.” For example, if an employee exposed to carcinogenic chemicals at work also smoked cigarettes at some point in his life, he must prove that the cancer developed in a material degree due to the chemical exposure as opposed to smoking to qualify for workers’ compensation benefits. Given that many diseases take years to manifest after exposure, establishing causation is far from simple. The process of litigating the causation issue in occupational disease claims is long and arduous. Even when such claimants prevail in court, compensation is often awarded too late to help the injured worker battling a debilitating illness.

Why Claims by First Responders Should Be Treated Differently

First responders are required to take great personal risks in performing their duties to protect the public from the dangers of various types of emergencies, including natural disasters, terrorist attacks, and health epidemics.

Our first responders do not hesitate to protect us. We must not hesitate to protect them.

–Lisa Pezzano Mickey

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