WSR 03-06-074

PROPOSED RULES

DEPARTMENT OF

LABOR AND INDUSTRIES

[ Filed March 4, 2003, 9:07 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 02-14-148.

Title of Rule: Presumptive coverage and tobacco use for fire fighters, WAC 296-14-310, 296-14-315, 296-14-320, 296-14-325, and 296-14-330.

Purpose: This rule will define the extent of tobacco use that shall exclude a fire fighter from receiving presumptive coverage for a heart or lung condition under the Industrial Insurance Act.

Other Identifying Information: As a result of chapter 337, Laws of 2002 (2SHB 2663) from the 2002 legislative session the legislature directed the department to implement this rule.

Statutory Authority for Adoption: RCW 51.04.020, 51.32.185.

Statute Being Implemented: RCW 51.32.185.

Summary: The purpose of adopting this rule is to determine when a fire fighter would be excluded from a presumption on heart and lung conditions due to current or past tobacco use. For current smokers, the presumption doesn't apply. For former smokers, this rule defines the minimum time period that a fire fighter has to refrain from smoking in order for the presumption to apply to a heart or lung condition.

Name of Agency Personnel Responsible for Drafting: Jami Lifka, 7273 Linderson Way S.W., Tumwater, WA, (360) 902-4941; Implementation: Gary Franklin, MD, Office of the Medical Director, (360) 902-5020; and Enforcement: Robert Malooly, Assistant Director for Insurance Services, (360) 902-4209.

Name of Proponent: Department of Labor and Industries, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: The purpose of adopting this rule is to determine when a fire fighter would be excluded from a presumption on heart and lung conditions due to current or past tobacco use. For current smokers, the presumption wouldn't apply. It is anticipated that some former smokers may not get the presumption of an allowable workers' compensation claim due to their history of smoking. Their claims would then be adjudicated through the normal route. In other words, for those fire fighters that don't receive the presumption because of smoking history, they will have the burden of proving their condition is an occupational disease.

Proposal does not change existing rules.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The statute implemented by this rule, RCW 51.32.185, says that the presumption applies to fire fighters under RCW 41.26.030(4) (public fire fighters), and fire fighters who work for private companies that employ more than fifty fire fighters. Small businesses (private fire fighting companies employing less that fifty fire fighters) are exempt. As a result, the statute and rule as written have no impact on small businesses.

RCW 34.05.328 applies to this rule adoption. This rule is a significant rule of the Department of Labor and Industries as described in RCW 34.05.328.

Hearing Location: Department of Labor and Industries, 7273 Linderson Way S.W., Tumwater, WA 98501, on April 15, 2003, at 1:00 p.m.

Assistance for Persons with Disabilities: Contact by phone (360) 902-4941, fax (360) 902-6315, TDD 1-800-833-6388.

Submit Written Comments to: Jami Lifka, Department of Labor and Industries, P.O. Box 44321, Olympia, WA 98504-4321, e-mail Lifk235@lni.wa.gov, fax (360) 902-6315, by April 22, 2003, 5:00 p.m. PST.

Date of Intended Adoption: May 28, 2003.

March 4, 2003

Paul Trause

Director

OTS-6162.1


NEW SECTION
WAC 296-14-310   When does a presumption of occupational disease for fire fighters apply?   RCW 51.32.185 specifies a presumption that certain medical conditions are occupational diseases for fire fighters. Those conditions are heart problems experienced within seventy-two hours of exposure to smoke, fumes, or toxic substances; respiratory disease; specific cancers as defined by RCW 51.32.185; and infectious diseases as defined by RCW 51.32.185.

For claims filed on or after July 1, 2003, the presumption may not apply to heart or lung conditions if a fire fighter is a user of tobacco products.

When the presumption does not apply, the claim is not automatically denied. However, the burden is on the worker to prove that the condition is an occupational disease.

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NEW SECTION
WAC 296-14-315   Definitions.   (1) Tobacco products: For purposes of this rule, tobacco products are limited to those that are smoked, including cigarettes, pipes and cigars.

(2) User of tobacco products: For the purposes of this rule, a user of tobacco products is a "smoker."

(3) Current smoker: A current smoker is a regular user of tobacco products, has smoked tobacco products at least one hundred times in his/her lifetime, and as of the date of manifestation did smoke tobacco products at least some days.

(4) Former smoker: A former smoker has a history of tobacco use, has smoked tobacco products at least one hundred times in his/her lifetime, but as of the date of manifestation did not smoke tobacco products.

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NEW SECTION
WAC 296-14-320   Does the presumption apply to current smokers with heart or lung conditions?   No. The presumption never applies to current smokers with heart or lung conditions.

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NEW SECTION
WAC 296-14-325   When does the presumption apply to former smokers with heart or lung conditions?   (1) Heart problems: The presumption for heart problems will apply if a fire fighter is a former smoker and last smoked two years or more prior to the cardiac event.

(2) Lung conditions: The presumption for lung conditions will apply:

(a) For asthma if the fire fighter is a former smoker who last smoked five years or more prior to the date of manifestation of the disease; or

(b) For COPD/emphysema/chronic bronchitis if the fire fighter is a former smoker who last smoked fifteen years or more prior to the date of manifestation of the disease; or

(c) For lung cancer if the fire fighter is a former smoker who last smoked fifteen years or more prior to the date of manifestation of the disease.

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NEW SECTION
WAC 296-14-330   What tobacco use shall exclude a fire fighter from a presumption of coverage?   The following table summarizes the situations listed in WAC 296-14-310 through 296-14-325 under which a presumption of coverage shall or shall not apply for fire fighters due to tobacco use.


Medical condition Presumptions shall not apply Presumption shall apply
Heart problems experienced within seventy-two hours of exposure to smoke, fumes, or toxic substance Current smoker Fire fighters that never smoked tobacco
Former smoker who last smoked less than two years prior to the cardiac event Former smoker who last smoked two years or more prior to the cardiac event
Asthma Current smoker Fire fighters that never smoked tobacco
Former smoker who last smoked less than five years before date of manifestation of the disease Former smoker who last smoked five years or more before date of manifestation of the disease
COPD/emphysema/chronic bronchitis Current smoker Fire fighters that never smoked tobacco
Former smoker who last smoked less than fifteen years before date of manifestation of the disease Former smoker who last smoked fifteen years or more before date of manifestation of the disease
Lung cancer Current smoker Fire fighters that never smoked
Former smoker who last smoked less than fifteen years before date of manifestation of the disease Former smoker who last smoked fifteen years or more before date of manifestation of the disease

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