December 2007
Worker’s Compensation Presumptive Illnesses for Safety Members and Firefighters
I was asked to write this article on presumptive illnesses for safety members. Let me first explain what a presumptive illness is and how it can work to your benefit. Presumptive illnesses are heart trouble including heart disease and stroke; cancer and leukemia, hepatitis, hernia, meningitis, pneumonia and tuberculosis, low back impairments, blood borne infectious diseases and biochemical substance. Legal Presumptions act to give additional weight or significance to the above named specified conditions when brought before a judge at trial. A presumption requires the judge to find in favor of a party (in our case safety members) even if that party cannot otherwise prove their position. These conditions are presumed to arise out of and in the course of duty. This presumption may be disputed by the County by other evidence, but unless evidence is submitted that the illness was a result of something besides your position, the appeals board is bound to find in accordance with it.
Hernia/Pneumonia/Heart Trouble- *The compensation awarded for hernia, heart trouble (includes heart disease and strokes), and pneumonia is full hospital, surgical, medical treatment, disability indemnity, and death benefits. The presumption shall be extended to a member following termination of service or retirement for a period of three calendar months for each full year of the requisite service, but not to exceed 60 months in any circumstance, commencing with the last date actually worked in the specified capacity. For the heart trouble presumption the member must have worked for the department for five years in order to qualify.
Cancer/Leukemia – This section also applies to firefighting members. The term injury includes cancer/leukemia that develops or manifests itself during a period in which the member is in service of the department or unit, if the member demonstrates that he or she was exposed, while in the service to a carcinogen as defined by the international Agency for Research in Cancer. The same compensation as listed above applies and a claim can be made after termination of service or retirement in accordance with the information listed above. I discussed this issue with Mike Eagleson, Chief of Labor Relations, who was also a firefighter in previous employment and he stated that he and his co-workers had a book where they jotted down what they were exposed to and when. It may sound like too much work but I believe it is better to be safe than sorry.
Tuberculosis - This section also applies to firefighting members. The same compensation as listed above* applies and a claim can be made after termination of service or retirement in accordance with the information listed above.
Blood Borne Infectious Diseases - This section also applies to firefighting members. The same compensation as listed above* applies and a claim can be made after termination of service or retirement in accordance with the information listed above. Blood Borne Infectious disease is defined as a disease caused by exposure to pathogenic microorganisms that are present in human blood that can cause disease in humans, including those pathogenic microorganisms defined as blood borne pathogens by the Department of Industrial Relations (DIR). I searched the DIR website and was unable to find the list. However, I did send them an email to get back to me with this information and I will include it in a future article.
I was asked by a Sergeant if MRSA (Methicillin resistant staphylococcus aureus) was covered under this presumption. I called a nurse and she consulted with five different doctors and received five different opinions. I then called a well known Worker’s Compensation attorney and was told that it was not covered as a presumption. However, in my research I did find that prisoners are more likely to have this condition and all it would involve is skin to skin contact. You could still file a Workers Compensation claim but then you would have to prove that you came in contact with a prisoner/inmate who had the condition. For those of you working in the jails, if you find that a number of your co-workers have come down with this condition, it would make a more compelling argument that your work was responsible for the condition.
Biochemical Substance – This section also applies to firefighting members. Biochemical substance is defined as any biochemical or chemical agent that may be used as a weapon of mass destruction including but not limited to, any chemical warfare agent, weaponized biological agent, or nuclear or radiological agent. The same compensation as listed above* applies and a claim can be made after termination of service or retirement in accordance with the information listed above.
Meningitis - This section also applies to firefighting members. The same compensation as listed above* applies and a claim can be made after termination of service or retirement in accordance with the information listed above.
Lower Back Impairments – This section applies to our safety members only. There is a prerequisite that you be employed with the department for at least five years on a full time basis and have been required to wear a duty belt as a condition of employment. A duty belt is defined as a belt used for the purpose of holding a gun, handcuffs, baton, and other items related to law enforcement. The same compensation as listed above* applies and a claim can be made after termination of service or retirement in accordance with the information listed above.
Hernia - This section also applies to firefighting members. The same compensation as listed above* applies and a claim can be made after termination of service or retirement in accordance with the information listed above.
Hepatitis – This applies to safety members only. Many of you who have heard me at briefings at your station know that I am not a fan of the Worker’s Compensation System. I was a Worker’s Compensation Adjuster in my previous employment. The benefits provided to you under Worker’s Compensation are great for illnesses or conditions that are temporary because you are provided with pay and the medical treatment necessary while you recuperate. Temporary work restrictions are not the issue; they’re fine to assist you in getting back to your work. The real danger lies on permanent restrictions. If you have a permanent restriction that precludes you from doing your work I am certain based on my experience that you will be medically retired, and believe me you will not get rich on Worker’s Compensation. Most people who have been medically retired because of their permanent work restrictions have had to take other jobs which usually don’t pay what they are used to receiving. Therefore, you need to talk to your doctor when he/she is ready to declare you permanent and stationary. This means that you are not likely to get better. Also: what I am about to say next is an opinion as I am not an attorney. Please understand that since I have expertise in this area, SEBA has paid for me to go to classes to update my skills since the laws change every couple of years. They did this so I could better assist you in this area. SEBA does not cover your worker’s Compensation claims, but I am more than willing to talk to members about their individual claims to inform them of the process and options available to you. I believe, and this was reinforced by an attorney, at the last class I attended that if your employer has accepted your claim and is providing you with the required treatment, there is no reason to get an attorney. Right now Worker’s Compensation attorneys probably are upset with that statement. However, my job is to give you the best advice for your career. Plus if you hire an attorney you will have to pay his/her fees out of your settlement. I do recommend getting an attorney if your employer has rejected your claim and you are having trouble getting the necessary treatment.
Any member with a Worker’s Compensation issue may call me to discuss their individual claims. In the end it will be your decision, but at least you’ll be better informed in making your decision.
Please feel free to call your field representative if you have any concerns regarding this issue. However, in the absence of time, follow the order, then contact your field representative and we can assist you if there is a grievance to be filed.
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