1833-S AMH CONW BEZN 089

SHB 1833 - H AMD 291

By Representative Conway

ADOPTED 3/13/2007

   Strike everything after the enacting clause and insert the following:

   "NEW SECTION. Sec. 1. The legislature finds and declares:

   (1) By reason of their employment, firefighters are required to work in the midst of, and are subject to, smoke, fumes, infectious diseases, and toxic and hazardous substances;

   (2) Firefighters enter uncontrolled environments to save lives, provide emergency medical services, and reduce property damage and are frequently not aware of the potential toxic and carcinogenic substances, and infectious diseases that they may be exposed to;

   (3) Harmful effects caused by firefighters' exposure to hazardous substances, whether cancer, infectious disease, heart or respiratory disease, may develop very slowly, manifesting themselves years after exposure;

   (4) Firefighters frequently and at unpredictable intervals perform job duties under strenuous physical conditions unique to their employment when engaged in firefighting activities; and

   (5) Cardiovascular disease is exacerbated by firefighting duties and firefighting increases the incidence of cardiovascular disease and heart injuries in firefighters.

   Sec. 2. RCW 51.32.185 and 2002 c 337 s 2 are each amended to read as follows:

   (1) In the case of firefighters as defined in RCW 41.26.030(4) (a), (b), and (c) who are covered under Title 51 RCW and firefighters, including supervisors, employed on a full-time, fully compensated basis as a firefighter of a private sector employer's fire department that includes over fifty such firefighters, there shall exist a prima facie presumption that: (a) Respiratory disease; (b) ((heart problems that are experienced within seventy-two hours of exposure to smoke, fumes, or toxic substances)) any heart problems, experienced within seventy-two hours of exposure to smoke, fumes, or toxic substances, or experienced within twenty-four hours of strenuous physical exertion due to firefighting activities; (c) cancer; and (d) infectious diseases are occupational diseases under RCW 51.08.140. This presumption of occupational disease may be rebutted by a preponderance of the evidence. Such evidence may include, but is not limited to, use of tobacco products, physical fitness and weight, lifestyle, hereditary factors, and exposure from other employment or nonemployment activities.

   (2) The presumptions established in subsection (1) of this section shall be extended to an applicable member following termination of service for a period of three calendar months for each year of requisite service, but may not extend more than sixty months following the last date of employment.

   (3) The presumption established in subsection (1)(c) of this section shall only apply to any active or former firefighter who has cancer that develops or manifests itself after the firefighter has served at least ten years and who was given a qualifying medical examination upon becoming a firefighter that showed no evidence of cancer. The presumption within subsection (1)(c) of this section shall only apply to prostate cancer diagnosed prior to the age of fifty, primary brain cancer, malignant melanoma, leukemia, non-Hodgkin's lymphoma, bladder cancer, ureter cancer, colorectal cancer, multiple myeloma, testicular cancer, and kidney cancer.

   (4) The presumption established in subsection (1)(d) of this section shall be extended to any firefighter who has contracted any of the following infectious diseases: Human immunodeficiency virus/acquired immunodeficiency syndrome, all strains of hepatitis, meningococcal meningitis, or mycobacterium tuberculosis.

   (5) Beginning July 1, 2003, this section does not apply to a firefighter who develops a heart or lung condition and who is a regular user of tobacco products or who has a history of tobacco use. The department, using existing medical research, shall define in rule the extent of tobacco use that shall exclude a firefighter from the provisions of this section.

   (6) For purposes of this section, "firefighting activities" means fire suppression, fire prevention, emergency medical services, rescue operations, hazardous materials response, aircraft rescue, and training and other assigned duties related to emergency response.

   (7)(a) When a determination involving the presumption established in this section is appealed to the board of industrial insurance appeals and the final decision allows the claim for benefits, the board of industrial insurance appeals shall order that all reasonable costs of the appeal, including attorney fees and witness fees, be paid to the firefighter or his or her beneficiary by the opposing party.

   (b) When a determination involving the presumption established in this section is appealed to any court and the final decision allows the claim for benefits, the court shall order that all reasonable costs of the appeal, including attorney fees and witness fees, be paid to the firefighter or his or her beneficiary by the opposing party.

   (c) When reasonable costs of the appeal must be paid by the department under this section in a state fund case, the costs shall be paid from the accident fund and charged to the costs of the claim.

   (8) (a) If an employer requests reconsideration of a department order allowing benefits under this section and the firefighter's medical provider has made a determination that the firefighter is terminally ill, temporary total disability compensation or medical aid benefits granted to the firefighter by the order under reconsideration must continue while the reconsideration is pending, subject to the requirements of RCW 51.32.240(4).

   (b) If an employer appeals to the board of industrial insurance appeals a department order allowing benefits under this section and the firefighter's medical provider has made a determination that the firefighter is terminally ill, temporary total disability compensation or medical aid benefits granted to the firefighter by the order under appeal must continue while the appeal is pending, subject to the requirements of RCW 51.32.240(4).

   Sec. 3. RCW 51.52.120 and 2003 c 53 s 285 are each amended to read as follows:

   (1) It shall be unlawful for an attorney engaged in the representation of any worker or beneficiary to charge for services in the department any fee in excess of a reasonable fee, of not more than thirty percent of the increase in the award secured by the attorney's services. Such reasonable fee shall be fixed by the director or the director's designee for services performed by an attorney for such worker or beneficiary, if written application therefor is made by the attorney, worker, or beneficiary within one year from the date the final decision and order of the department is communicated to the party making the application.

   (2) If, on appeal to the board, the order, decision, or award of the department is reversed or modified and additional relief is granted to a worker or beneficiary, or in cases where a party other than the worker or beneficiary is the appealing party and the worker's or beneficiary's right to relief is sustained by the board, the board shall fix a reasonable fee for the services of his or her attorney in proceedings before the board if written application therefor is made by the attorney, worker, or beneficiary within one year from the date the final decision and order of the board is communicated to the party making the application. In fixing the amount of such attorney's fee, the board shall take into consideration the fee allowed, if any, by the director, for services before the department, and the board may review the fee fixed by the director. Any attorney's fee set by the department or the board may be reviewed by the superior court upon application of such attorney, worker, or beneficiary. The department or self-insured employer, as the case may be, shall be served a copy of the application and shall be entitled to appear and take part in the proceedings. Where the board, pursuant to this section, fixes the attorney's fee, it shall be unlawful for an attorney to charge or receive any fee for services before the board in excess of that fee fixed by the board.

   (3) In an appeal to the board involving the presumption established under RCW 51.32.185, the attorney's fee shall be payable as set forth under RCW 51.32.185.

   (4) Any person who violates this section is guilty of a misdemeanor.

   Sec. 4. RCW 51.52.130 and 1993 c 122 s 1 are each amended to read as follows:

   (1) If, on appeal to the superior or appellate court from the decision and order of the board, said decision and order is reversed or modified and additional relief is granted to a worker or beneficiary, or in cases where a party other than the worker or beneficiary is the appealing party and the worker's or beneficiary's right to relief is sustained, a reasonable fee for the services of the worker's or beneficiary's attorney shall be fixed by the court. In fixing the fee the court shall take into consideration the fee or fees, if any, fixed by the director and the board for such attorney's services before the department and the board. If the court finds that the fee fixed by the director or by the board is inadequate for services performed before the department or board, or if the director or the board has fixed no fee for such services, then the court shall fix a fee for the attorney's services before the department, or the board, as the case may be, in addition to the fee fixed for the services in the court. If in a worker or beneficiary appeal the decision and order of the board is reversed or modified and if the accident fund or medical aid fund is affected by the litigation, or if in an appeal by the department or employer the worker or beneficiary's right to relief is sustained, or in an appeal by a worker involving a state fund employer with twenty-five employees or less, in which the department does not appear and defend, and the board order in favor of the employer is sustained, the attorney's fee fixed by the court, for services before the court only, and the fees of medical and other witnesses and the costs shall be payable out of the administrative fund of the department. In the case of self-insured employers, the attorney fees fixed by the court, for services before the court only, and the fees of medical and other witnesses and the costs shall be payable directly by the self-insured employer.

   (2) In an appeal to the superior or appellate court involving the presumption established under RCW 51.32.185, the attorney's fee shall be payable as set forth under RCW 51.32.185."

   Correct the title.

EFFECT: (1) Narrows the intent section.

(2) Modifies the presumption for heart conditions, heart impairments, and injury to the heart causing death to state specifically that the presumption of occupational disease applies to "heart problems" that are experienced within 72 hours of exposure to smoke, fumes, or toxic substances, or within 24 hours (instead of 72 hours) of exposure to strenuous physical exertion. Clarifies that the strenuous physical exertion must be due to firefighting activities and defines firefighting activities.

(3) Narrows the cancers added to the list of cancers granted the presumption of occupational disease by eliminating stomach cancer, clarifying colorectal cancer (instead of intestinal), and limiting prostate cancer to prostate cancer diagnosed prior to the age of fifty.

(4) Restores the burden for rebutting a presumption of occupational disease for firefighters to preponderance of the evidence (instead of clear, cogent, and convincing evidence).

(5) Clarifies that, when the reasonable costs of litigation are ordered to be paid, they must be paid by the opposing party. Clarifies that, in a state fund case, if the Department must pay the reasonable costs of litigation, the fees will be paid from the accident fund and charged to the costs of the claim.

(6) Requires payment of time loss and medical aid benefits when an employer protests or appeals an order related to the presumption of occupational disease and the order grants benefits for a firefighter determined to be terminally ill by his or her medical provider.