Added to the retirement law in 1990, G.L. c. 32, s. 94B establishes a rebuttable presumption that, in the case of certain eligible public employees (generally these employees are firefighters) any condition or impairment of health caused by any condition of cancer affecting the skin, central nervous, lymphatic, digestive, hematological, urinary, skeletal, oral, prostate and respiratory tract resulting in total disability or death is service connected unless the contrary is shown by a preponderance of the evidence.
Section 94B provides that the presumption shall only apply if the disabling or fatal condition is a type of cancer which may in general result from exposure to heat, radiation or a known or suspected carcinogen as determined by the International Agency for Research on Cancer (IARC).
Is there evidence that the cancer is not service connected?
The Cancer Presumption Law attributes the development of a cancerous condition to the individual’s employment. However, it is the responsibility of the medical panel to determine whether other factors may have caused the condition. A review of non-service connected factors related to the member’s mental or physical health or the accidents or hazards undergone is important.
Deciding whether the condition is non-job related
Is the greater weight of the evidence such that it obligates a fact finder to come to the conclusion that for this particular applicant a uniquely predominant non-service connected influence on the member’s mental or physical condition and/or non-service connected accident or hazard caused the incapacity or fatal condition of this applicant?
In dealing with this question, you must focus on three areas:
- The condition of the applicant
- Other factors which could have caused the cancer and subsequent disability
- The presumption
It is the responsibility of the medical panel to define, characterize and when possible quantify (e.g., compare to the average risk or provide a relative risk) influences that are uniquely predominant in their impact on the development of this condition. Keep in mind that the mere existence of evidence that the cancer is not service connected does not alone cause the presumption to disappear completely. Sufficient evidence to overcome the presumption might include:
- A non-work related exposure to a known cancer initiator and/or promoter resulting in a cancer of a unique presentation/pathologic characteristic recognized as pathognomonic for that exposure, without significant confounding service exposure to the same carcinogen
- Clearly defined exposure outside of work with sufficient latency period, duration of exposure and convincing epidemiologic data as to a very strong linkage to the type of cancer in question and again no significant confounding service exposure to the same carcinogen.
If you find that, for this particular applicant, the greater weight of the evidence is such that it obligates a fact finder to come to the conclusion that a uniquely predominant non-service connected influence on the member’s mental or physical condition and/or non-service connected accident or hazard caused the incapacity or fatal condition of this applicant, then the presumption is overcome. If you make that determination, then your answer to Question 3 on the Certificate for Accidental Disability (Cancer) is NO. Otherwise, the answer to Question 3 on the Certificate for Accidental Disability (Cancer) is YES.