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October 21, 2014

Re:      S-264, Public Safety Workers’ Compensation

Dear Mayor:

The League of Municipalities, along with the Municipal Excess Liability Fund and the New Jersey First Aid Council, oppose S-264, which has been scheduled for a vote in the State Senate this Thursday, October 23. Please contact your State Senator, urging opposition to this costly proposal.

S-264 concerns workers’ compensation for public safety workers. Specifically, this bill would create a rebuttable presumption that if, in the course of employment, a public safety worker is exposed to a carcinogen or pathogen, that any subsequent injury, disability, chronic or corollary illness or death is compensable under workers' compensation.

Clearly, we need to balance our responsibility to our public safety workers, who suffer injury or illness in the course of their service, with our responsibility to the taxpaying public.  We believe that current workers’ comp provisions strike a proper balance. The provisions of this bill will, we feel, tip the scales and increase costs that will need to be passed on to taxpayers. 

Throughout the almost a decade of deliberations on this bill, the League of Municipalities and the Municipal Excess Liability (MEL) have consistently communicated our willingness to discuss with the supporters alternatives that will better balance the needs of both the first responders and the taxpayers.  Specifically, we have suggested the creation of a benefit outside of workers’ compensation for first responders.    

S-264 in its current form is the most expensive bill of its type in the country and needlessly subsidizes the Federal Government at the expense of the New Jersey tax payers.  While similar legislation adopted in Pennsylvania three years ago is significantly narrower than S-264, municipalities already report workers’ compensation premium increases of between 70% and 500% if they have fire departments.  Stand-alone fire departments are often unable to secure coverage in the voluntary market and have entered the assigned risk pool. 

Under S-264, New Jersey local taxpayers will substantially subsidize the Federal Government through the Social Security Medicare Program because Medicare will require municipalities to reimburse it for medical payments incurred by retirees collecting workers’ compensation under this Act. Other states avoid this problem by creating their presumption outside of the workers’ compensation law.  Of the 31 states with cancer presumption laws, only 17 are in workers’ compensation.  Most of the remaining 14 states either created a special program or adopted the presumption in their pension law. 

Most (14) of the 17 states with cancer presumptions in their workers’ compensation laws substantially limit their exposure to the social security medical offset with a statute of limitations on the presumption.   In two of these states (Arizona and Vermont), the presumption ends at age 65.  Most of the rest have a 5 year statute of limitations from the date of retirement.  In Minnesota, the presumption ends as soon as the fire fighter retires.   Four states (Alaska, Indiana, Texas and Washington) also exclude smokers from the presumption

S-264 as written will make it almost impossible to contest claims.  Under current law in New Jersey, the standard to rebut the presumption of compensability is “preponderance of the evidence.”  In S-264, the standard is raised to the impossible “clear and convincing”.  Only one state, Oregon uses that standard.  However, Oregon excludes volunteers from the presumption and requires career firefighters to report any claims within 7 years of retirement.  The other states use the more reasonable “preponderance of the evidence” standard currently used in New Jersey. 

Further, S-264 presumes that all cancers are due to on the job exposures.  The current scientific evidence does not support that broad presumption in S-264.   The most comprehensive study was published a year ago by the prestigious National Institute for Occupational Safety and Health (NIOSH).  This study focused on 30,000 career firefighters in three major cities who were for the most part exposed before the widespread use of air breathing apparatus.  The study concluded that these firefighters had a significantly higher rate of mesothelioma and an elevated rate of respiratory, digestive, and urinary cancers.  The study does not support the presumption in S-264 that all cancers are related nor does not support a presumption for volunteers. 

In conclusion, our recommendation is to create a study commission to examine the issue, review the NIOSH study and consider the experience of other states.  Further, this issue should be addressed outside of workers’ compensation. 

For these reasons, the League of Municipalities, the Municipal Excess Liability Joint Insurance Fund and the New Jersey First Aid Council oppose this bill. Please urge your State Senator to vote “No” on S-264.

Very truly yours,

William G. Dressel, Jr.
Executive Director

 

 

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