Supreme Court mulls occupational presumption in firefighters statute.

Byline: Barry Bridges

Does Rhode Island's "firefighters' cancer statute" create an occupational presumption that entitles a firefighter to an accidental disability pension without proof that his cancer arose out of his employment? The question is at the center of a case recently argued before the state Supreme Court.

The appellant, the Municipal Employees' Retirement System of Rhode Island, was dissatisfied with the holding of the Workers' Compensation Appellate Division that Cranston firefighter Kevin Lang had the benefit of such a presumption in qualifying for a pension.

On Oct. 2, the parties in Lang v. Municipal Employees' Retirement System of Rhode Island presented their opposing views on interpreting the statutes at play, as well as the weight to be given to a 2009 Supreme Court holding pertaining to a cancer-stricken East Providence firefighter.

The attorney for Lang's estate, James E. Kelleher of Warwick, told Lawyers Weekly that upsetting the holding of the Appellate Division would have unfortunate consequences, especially considering the overwhelming evidence that firefighters contract cancer at rates far in excess of the general population.

"I argued that it's impossible for a doctor to declare what has caused cancer with any degree of medical certainty, so a requirement to prove causation will result in no pension ever being granted under the statute, or certainly very, very few," Kelleher said. "That's why the General Assembly took that piece out of the equation and created a presumption by declaring that these conditions 'arise out of' employment."

But MERS attorney Michael P. Robinson in his appellate brief argued that there is no indication that the Legislature intended to create such a presumption through the firefighters' statute. The Pawtucket lawyer did not respond to a request for comments by press time.

Cancer diagnosis

Lang worked as a firefighter with the Cranston Fire Department for many years before he was diagnosed with metastatic colon cancer in September 2012. He was placed on "injured on duty" status by the city and proceeded to apply for an accidental disability pension from MERS.

Consistent with its statutory duties, MERS sent Lang to be evaluated by three independent medical examiners, none of whom could causally relate the cancer to Lang's occupation as a firefighter. The Retirement Board ultimately issued a final decision denying the application on that basis.

However, the tide turned upon Lang's appeal to...