A few firefighters go through their entire career without ever having a work related injury. They work 25 or 30 years, retire and move on to the next stage living a happy and healthy post-career life. I truly wish that for every young firefighter who comes onto the job. Yet, I know that will probably not be the case. Many firefighters suffer at least one injury on the job that results in time off from work, extensive medical care, including surgery and sometimes resulting in permanent disability from the injury. Even though they return to their usual and customary duties, they never fully recover and continue to suffer from the lingering effects of the injury.
Some firefighters incur several injuries throughout their career many of which are simply reported to their captain without any request for treatment. The firefighter hopes the injury will resolve so they continue working in their regular assignment without any loss of regular and overtime pay. Then there are those who seem to have no luck whatsoever and suffer injury after injury, resulting in protracted time off from work and repeated surgeries.
Finally, there is the firefighter who doesn’t pursue any type of workers’ compensation action for injuries suffered throughout his/her career but as they near the end of the line, their body is physically exhausted and they now need to seek medical care.
Where do you fit within these scenarios? How should you protect yourself throughout your career so that you are taken care of when an injury occurs? Should you report each and every injury or incident that occurs or should you wait until you are ready to retire to file one claim to cover the ailments that were caused by the job?
This article will try to answer these questions and offer simple advice on what steps you should take to ensure you are properly protected. I have represented firefighters for more than 30 years and I have seen each scenario described. I’ve also met with firefighters who are thoroughly prepared with documentation when they come in to see me and also firefighters who don’t have one piece of paper about any injury sustained on the job. Hopefully you aren’t the latter and here is how to avoid being that person.
An on the job injury can be one of two types. There is the specific injury which occurs from a specific activity such as pulling hose, lifting a ladder or a person/patient in need of assistance, on duty traffic accidents, a slip and fall at a structure or hillside fire and other similar activities.
There is also what is referred to as a continuous or cumulative trauma injury which means you suffer an injury as a result of the repetitive nature of your job and the effect it takes on a body part. Examples include back trouble due to wearing heavy turnout gear and breathing apparatus, repetitive lifting, bending, and carrying heavy objects. The same activities over a period of time can cause injury to your neck, knees, shoulders, hands and just about any part of the body that is physically stressed. Further, a cumulative trauma claim can be to your internal system including injury to your cardiovascular system, hypertension, gastrointestinal system, hearing loss, skin and other types of cancer. Some of these cumulative trauma injuries are “presumed” industrial for firefighters because the legislature has recognized you perform an arduous and emotionally stressful job. Cancer is presumed industrial if you establish you were exposed to a known carcinogen. Anyone who was ever exposed to diesel exhaust automatically meets that criteria.
So how do you take care to ensure you can prove these claims when it is time to do so? Do you “file” a claim for injury with each specific incident that occurs on the job? When do you file a continuous trauma type claim with your employer?
Firefighters normally maintain a journal of their daily activity and enter items in the journal which are not routine aspects of the job. Use this journal to document your career and it will benefit you in the long run. Every time you are at a scene where you feel you may have suffered an injury, you should log it in your journal. If necessary, advise your captain or other supervisor of the incident. If you don’t think you need treatment then by all means, don’t ask for or seek it. By noting the injury, you have done what you are required to do. The Labor Code requires all injured workers to report an injury to their employer within 30 days from the occurrence. An employer may deny liability for an injury that is not reported in that time frame. By noting the incident in your journal and advising your captain, you are complying with this requirement.
If the injury does result in treatment, time lost from work, and any resulting permanent impairment, then you should finalize that claim by entering into a Stipulation With Request For Award with your employer. That Stipulation must be submitted to the Workers’ Compensation Appeals Board and approved by a judge. Many firefighters are led to believe that they automatically have “life time medical care” for an injury because the claims examiner told them so. Adjusters are notorious for telling firefighters, “Don’t worry, you are covered for medical care on this injury. All you need to do is call us if you need treatment.” Wrong! If you don’t have an Award for future medical care from a workers’ compensation judge, you don’t have lifetime medical care. If you ask for care on that injury down the road, it can be denied based on the statute of limitations.
While you don’t necessarily need legal representation on every injury, you would be wise to consult with an attorney on any injury that requires protracted treatment and results in permanent disability. I do not recommend entering into a settlement on a case (Stipulations With Request For Award) without first consulting with a competent attorney, as that settlement may be inadequate and may affect other injuries down the road.
Continuous or cumulative trauma injuries can occur well before you are ready to retire. You may notice orthopedic problems that begin without any particular precipitating event and as those conditions worsen, it affects your ability to perform the job. When that occurs, it’s time to speak with an attorney. Do not file such a claim on your own as you will probably put down the wrong date of injury and you may volunteer incorrect information that affects the claim. I have met with countless firefighters who file a continuous trauma claim on their own and in their paperwork they indicate that their claim started with a particular injury that occurred years earlier. That injury is probably barred by the statute of limitations but now they have either told their employer or a doctor that this “old” injury was the “start of their problems.” You are a defense attorney’s dream client because that attorney will now argue that all or the majority of your problems are a result of an injury barred by a time statute.
There is also the issue of whether you should file one continuous trauma claim for multiple body parts (ie, back, neck knees, etc.) or file separate claims for each body part. Filing one claim means you have one year of temporary disability (4850 benefits) if you have to go off work while filing separate claims can result in a year of 4850 time for each condition. However, filing separate claims will also result in significantly lower permanent disability compensation rather than one claim where the body parts are added together. As you can see, the manner in which a continuous trauma claim is prepared and filed is a complex one with many issues to consider. Consulting with an attorney before filing such a claim is imperative to insure it is done properly and with your best interest in mind.
It is also wise to file a continuous trauma claim with your employer prior to your retirement. Do not wait until you walk out the door and then decide to meet with an attorney. While you may still be within your legal rights to pursue such a claim, there are again legal issues to consider in filing prior to retirement. In addition, your continuous trauma injury may entitle to you a disability retirement and waiting until after you retire on a service retirement to discuss the workers’ compensation claim may jeopardize any right to pursue a disability retirement.
Keeping a good record throughout your career is what an attorney wants to see when they meet with you. When you are injured on the job, keep all of the following in a folder and keep it organized: the claim form or report of injury submitted to your employer; all correspondence you receive from your employer and/or their workers’ compensation administrator pertaining to that injury; any medical reports pertaining to your injury; and of course any settlement documents if you settle the case on your own. If you meet with an attorney later on about a new injury to the same body part or even other body parts, that attorney will want to review any settlement documents for any previous injury. If your injury did not result in any settlement, make certain you maintain and all paperwork for that injury even if it seems insignificant to you. Let an expert determine what is significant and what is not.
Finally, keep that journal. You normally are given that journal when you retire and it can be invaluable to you later if you develop a condition that may have resulted from an incident years earlier. That sometimes occurs with contagious or blood borne diseases such as hepatitis resulting from a needle stick which you may have journalized and now proves hazardous to your health! The journal also supports the number of times you have noted back or other orthopedic troubles and of course it documents hazardous exposures at fire scenes which becomes your proof in case you suffer some type of cancer.
Workers’ compensation is a complex system with rules and regulations that boggle the mind. You can help yourself and your attorney by keeping good records throughout your career. Hopefully you may be one of those firefighters that ride off into the sunset happy, healthy and ready to enjoy your retirement. I hope I never meet you as a client and you never need my services as an attorney. For those I will meet, let’s make sure we are ready to combat all the arguments your employer will throw at us in trying to defeat your claim. As always, stay safe.
By Robert J. Sherwin, Esq. of Lewis, Marenstein, Wicke, Sherwin & Lee