READ ABOUT: Firefighter Presumption – 39-A M.R.S. § 328-B

By Rudman Winchell Attorney

 By: Rudman Winchell Attorney Virginia Putnam

            In 2009, the Legislature passed a law which afforded a rebuttable presumption of work relatedness under the Workers Compensation Act to a firefighter who contracts cancer.  The legislation arose in response to similar laws in approximately half the other states including all New England states other than Rhode Island.  The law took away the burden of proof previously placed on the firefighter to prove that the cancer is contracted in the course of employment.  If the employee meets several requirements, the burden is now on the municipality to prove the cancer is not related to the firefighter’s employment.  Under the law the term “cancer” means kidney cancer, non-Hodgkin’s lymphoma, colon cancer, leukemia, brain cancer, bladder cancer, multiple myeloma, prostate cancer, testicular cancer or breast cancer.

            The law includes a number of requirements that must be met in order for the firefighter to have the rebuttable presumption.  First, during the time of employment, the firefighter must have undergone a standard, medically acceptable test for evidence of cancer and the test must be negative for that type of cancer. Next, the firefighter must have been employed as a firefighter for 5 years and regularly responded to firefighting or emergency calls.  Third, the firefighter must provide a written affidavit declaring that the diagnosed cancer is not prevalent among the firefighter’s immediate family including grandparents and siblings and that the firefighter had no substantial lifetime exposure to carcinogens that are associated with the diagnosed type of cancer other than exposure through firefighting.  If a firefighter is retired, the presumption only applies to a firefighter who is diagnosed with cancer within ten years of a firefighter’s last active employment as a firefighter or prior to reaching the age of 70. 

            As of this date, the Maine Workers Compensation Board has not published any decisions pertaining to the firefighter’s cancer presumption.

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