“It will never happen to me. I’m invincible. Even if I do get injured on the job, I’ll bounce back and return to full duty.” That’s what most firefighters truly believe. They rarely consider or think about work related injuries and the effect those injuries have on their careers and their families. But what if . . . the unthinkable happens? jWhat if you suffer a catastrophic injury that results in your death?
In the first six months of 2014, LAPD lost four officers, three to on duty traffic accidents and one to a heart attack on duty. That should make you sit back and think about the above scenario more carefully. Firefighters are not immune to events similar to those that took the lives of LAPD’s finest – sudden tragic events that end careers and turn families upside down. What do these families now do? How do they deal with the grief of losing a loved one, and the income and support that person provided?
This article will recap what benefits a surviving spouse or dependent may receive when an LA City firefighter dies as a result of a work related injury. The benefits are primarily pension, workers’ compensation, and personal injury, but some ancillary benefits from other agencies may be available as well.
To claim workers’ compensation death benefits, an individual must establish they were dependent upon the firefighter at the time of his/her injury that resulted in death. Dependency is a question of fact that is determined by a workers’ compensation judge. The degree of dependency (partial versus total) will determine the amount which the dependent will receive. The payments are bi weekly and for a limited period of time.
Children of the deceased firefighter, under the age of 18 at the time of the injury are “presumed” to be total dependents. If a child is over the age of 18, he/she may still be a total dependent but must prove it factually (ie: living at home; full time student, etc.). If the child is over 18 and working, he/she may qualify as a dependent but the degree of dependency may be partial versus total. Total dependents receive a greater amount of death benefit compensation than partial dependents.
A surviving spouse may qualify as a total dependent if they earn less than $30,000 in the year preceding the death of the firefighter. If they earned more than $30,000, they may still qualify as a partial dependent.
A person not a spouse but rather a domestic partner, may qualify as a dependent, but must be registered with the department as a domestic partner. Parents, siblings, or other “good faith” members of the household may also qualify as dependents if they can establish some degree of dependency on the deceased.
Surviving spouses/domestic partners and/or children are also entitled to reimbursement for burial expenses up $10,000.00.
Survivors’ pension benefits may be payable to the surviving children if they are under the age of eighteen at the time of death. After age eighteen, a surviving child is no longer entitled to receive pension benefits. A surviving spouse or registered domestic partner is also entitled to pension benefits regardless of whether they worked or not. However, if a spouse or domestic partner elects to receive pension benefits, there is an offset against those benefits for any workers compensation death benefits that have or would be paid. There is no such offset for children who receive both. It is highly recommended that a surviving spouse or domestic partner speak with a knowledgeable attorney regarding the pros and cons of filing for workers’ compensation death benefits and a pension as an erroneous decision can affect the amount of workers’ compensation benefits payable to any surviving children
If the death of a firefighter was caused by the negligence or intentional acts of a third party, then a personal injury action or wrongful death action may be a viable source of recovery for surviving family members. Domestic partners must be registered with the State of California in to order to recover in a third party civil action. Typical injuries that give rise to a civil action include on duty traffic accidents, product liability or defects contributing to or causing death, and premise negligence cases. In traffic accident cases, the action is normally filed against the negligent driver’s insurance company and in the event the negligent driver is uninsured or under insured, an action may be pursued against the firefighter’s own private auto insurance uninsured motorist provision. Because there are so many uninsured and under insured motorists in California, it is highly recommended that each firefighter carry the maximum UM coverage on their own auto policy.
Aside from proving “dependency,” a claimant must also prove there was a work related injury resulting in death. Clearly if there is an on duty physical event that results in death, there should be no dispute. Traffic accidents, physical trauma suffered while fighting a fire or responding to a scene and similar acts will normally not be challenged by the employer. But what about internal illnesses that result in death?
Many physical conditions are “presumed” industrial for firefighters if they establish certain facts that trigger the presumption. Heart trouble, cancer, pneumonia, blood borne pathogen diseases (HIV, hepatitis), MRSA, tuberculosis, and meningitis are all conditions that are presumed “industrial” for firefighters. If a firefighter dies as a result of any of those conditions, then his/her death would also be presumed industrial. These presumptive injuries normally must occur during the time the firefighter is employed but some can apply even after the firefighter stops working. Heart trouble that develops within five years from the last day of work is still presumed industrial and cancer is presumptive for up to ten years depending on the number of years actually worked.
Other physical conditions which are not presumptive might still give rise to an industrial injury and death and should be explored with a CSFA attorney. These could include hypertension, stroke and possibly autoimmune diseases.
Educate your spouse, partner and children. Make sure they know what to do if the unthinkable occurs. It’s not a pleasant conversation, but one you need to have. In the meantime, stay healthy and safe.
By Robert Sherwin of Lewis, Marenstein, Wicke, Sherwin & Lee