Enhanced Cancer Coverage & LOD Disability Points

Effective January 1, 2019, General Municipal Law Section 205-cc was adopted to provide enhanced cancer disability benefits. The question we are attempting to address with this post is: Would an individual who receives a benefit under this new law also be eligible for LOSAP line-of-duty-disability points?

Firefly is not an expert on this law, nor the insurance policies that are purchased to provide coverage for the benefits required under the statute. Additionally, we cannot and do not provide any legal advice. Any questions about eligibility for these cancer benefits should be addressed to the insurance company providing coverage or the entity paying the premiums for the coverage. That said, a few observations about the coverage and eligibility for benefits:

1. The statute defines eligibility based on membership duration and a physical exam.
2. The statute does not mention line-of-duty disability or require a direct link from a line-of-duty activity to the cancer diagnosis. It only defines what individuals are eligible, what types of cancers are covered, and the benefits provided if an eligible individual is deemed to have been diagnosed with a covered cancer.
3. The statute provides that a lump-sum benefit is payable, with the amount based on the type of cancer.
4. A monthly benefit is paid if, as a result of the cancer diagnosis, the individual is deemed to be permanently disabled and unable to be an interior firefighter. However, this monthly benefit is reduced based on benefits that may be paid for such cancer diagnosis from certain other sources.
5. This benefit is provided separate of the Volunteer Firefighters’ Benefit Law (VFBL).

Some of the information above was pulled from the FASNY FAQ on the cancer coverage, which can be found at https://fasny.com/legislation/faq/

The LOSAP statute that provides for line-of-duty-disability points is General Municipal Law Section 217(c)(viii). It is actually a point system category, which technically makes it optional – though LOSAP sponsors universally include this category in their point system. The statute reads as follows:

(viii) In the event that any active volunteer firefighter is either totally and temporarily disabled, or partially and permanently disabled, as certified by the workers’ compensation board or other competent authority approved by the sponsor of the service award program, and the disability occurs during the course of service as a volunteer, while actively engaged in providing line of duty services, as defined in subdivision one of section five of the volunteer firefighters’ benefit law, the firefighter shall receive five points for each full month of such disability.

A few observations about this section of statute:

1. The disability has to occur while actively engaged in providing line of duty services as defined in the applicable section of the VFBL.
2. The individual must be deemed to be totally and temporarily disabled, or partially and permanently disabled.
3. The disability determination must be made by the workers’ compensation board or another competent authority approved by the LOSAP sponsor.

With the observations about each statute in view, we believe that a cancer diagnosis does not make the firefighter automatically eligible for LOSAP line-of-duty-disability points. The main reasons why are:

1. The cancer benefit is not a VFBL-provided benefit and does not result in a VFBL claim.
2. The cancer benefit is not directly linked to a line-of-duty activity.
3. The cancer benefit does not imply or state that the disability is total and temporary or partial and permanent as required to be eligible for the LOSAP points.

Therefore, a benefit paid under the cancer coverage would not, in our opinion, result in automatic crediting of 5 points per month for a LOSAP line-of-duty disability.

But could it? One consideration would have to be the type of benefit provided by the cancer policy. If it is the monthly benefit, the statute implicates is that it is a permanent benefit, but there is no language to suggest if it is a partial or total disability. If that is placed to the side, an additional factor is that the monthly cancer benefit is subordinate to other benefits (some exceptions apply) that could be provided for the same cancer. If line-of-duty disability points were also awarded for the same cancer, a determination would have to be made regarding the possible reduction of the cancer benefit to offset the LOSAP benefit provided. That would have to be reviewed with the sponsor’s attorney and the insurance carrier providing the cancer coverage.

If the benefit provided by the cancer policy is the lump-sum benefit, and if there is a VFBL benefit paid for the same cancer diagnosis, then the same process would be followed for any line-of-duty injury. But for the purposes of this article we are assuming that in the overwhelming number of cases, VFBL coverage and benefits would not be applicable. With that in mind, since a cancer benefit would not be a VFBL benefit, the workers’ compensation board will not be the entity that certifies the disability. Therefore, the sponsor would have to rely on an approved competent authority to make the determination if the individual suffered a disability that meets the necessary criteria to award the LOSAP points. That competent authority should be selected and formally approved by the sponsor, and preferably be accountable to the sponsor, not the individual. The doctor or entity that provides the annual firefighter physicals would be a logical competent authority that is accountable to the sponsor.

Ultimately, our guess is that in the overwhelming number of cases, an individual who receives a benefit under the a cancer policy should not expect to also receive LOSAP points for a line-of-duty disability. However, there could be exceptions where both would apply.

Firefly Admin Inc. is an actuary and third-party administrator of LOSAPs. This article is intended to be informational only. Firefly does not provide legal advice and this article is not intended to be legal advice. We urge all readers to review this article with their legal council and insurance agent.