I have written numerous articles over the years discussing injuries that are presumed industrial for firefighters. These presumptive injuries have come about as a result of the strong lobbying efforts in Sacramento by safety associations to get you covered for work related injuries on certain conditions that might otherwise be deemed not industrial. A presumptive injury means that if you meet certain criteria for the specific presumption, the law presumes the injury is industrial and the burden of proving it to be non-industrial now shifts to your employer. Proving an injury is industrial by use of a presumption is a lot easier than the normal method of proving something that doesn’t carry a presumption. In addition, for an employer to rebut a presumption or show it doesn’t exist, is a difficult and daunting task that rarely succeeds. In essence a presumption is an evidentiary tool that works to your benefit once it applies.
Injuries that are currently presumptive for firefighters include heart trouble, hernias, pneumonia, meningitis, blood borne pathogens, and cancer. To trigger the presumption, you must establish that you are a firefighter as specified in the statute, that you have been diagnosed with one of these conditions, and that your developed the condition or it manifested itself during the time you were employed. The cancer presumption entails further requirements which are normally easy to establish for firefighters.
As noted above, once you establish the basic criteria defined in the presumption statute that applies to you, the evidence burden shifts to your employer to try and rebut the presumption. Most of the time, the employer is unsuccessful in doing so.
Now that you know the basics of presumptive injuries, let’s address the question I often receive: can I file a workers’ compensation claim for one of these conditions after I’ve retired from the City? That is a question that really requires a two-step answer. The first deals with how long a presumptive injury applies. Does it end the day I walk out the door with my retirement papers or can I file it after I’m retired? The second part deals with how much time you have to actually file a workers’ compensation claim and avoid having your claim barred by the statute of limitations. These answers are separate and distinct and one has nothing to do with the other.
Most of the presumptive statutes state that a presumption for your specific injury will apply for up to five years from the last day you work. That means if you develop or manifest your condition within five years from your last day of work, your injury will be “presumed” industrial. For example, if you retired on 12/31/2018 but suffered a heart attack on July 1, 2020, you would still have a presumptive heart claim because your condition developed or manifested itself within five years from the last day you worked. The cancer presumption actually applies for up to ten years from the last day you work depending on the length of service as a firefighter. For every year of service you had, you accrue three months for the cancer presumption. So…if you worked 30 years and retired, you would have 90 months from the last day you worked for the presumption to apply (3 months x 30 = 90 months). 90 months divided by 12 equals 7 ½ years. That means if your cancer developed or manifested itself within 7 ½ years from the last day you worked, the presumption would apply to your injury. In order to get the full or maximum ten years allowed by the cancer presumption, you would have to have worked 40 years (40 x 3 equaling 120 months or 10 years). Remember the other presumptive injuries have a five year maximum from the last day you worked.
What if you are beyond the statutory limit for your specific presumptive injury? Can the presumption still apply. The answer is yes but it requires a thorough review of your medical records to prove it. For example, if you developed prostate cancer and you were diagnosed 8 years post retirement yet your length of service only entitled you to the presumption for 7 ½ years, you might still be entitled to the benefit of the presumption if you can show that your cancer either developed or manifested itself within the 7 ½ years. That can sometimes be done by using medical records which show your PSA level was elevated enough that a doctor concludes your cancer was developing within the 7 ½ year period. Similarly, often times, symptoms of cancer will appear but be undiagnosed for several months or years and that can demonstrate the cancer was developing or manifesting itself within the statutory time for the presumption to apply. The same concepts apply to the other presumptive injuries if your actual diagnosis occurs outside of the five year limit for those injuries.
Now let’s go back to the second part of the equation pertaining to how long do you have to file a claim for a presumptive injury. Remember, presumptions are only a step in the road to proving you have a job related injury. The presumption makes your burden of proof easier. You still have to file a timely claim and if you don’t, your employer is going to scream statute of limitations.
Normally, you are required to file a workers’ compensation claim with the Workers’ Compensation Appeals Board within one year of the date of a cumulative trauma injury. Most presumptive injuries are in fact cumulative trauma claims meaning the injury occurred as a result of the repetitive activities you engaged in throughout your career. This, however, is where it gets tricky because exactly what is the date of a cumulative trauma injury? Is it the last day you worked or is it when you were diagnosed with a condition and required treatment? Normally the date of a cumulative trauma claim is when you required treatment and/or became disabled and either knew or should have known that your condition was job related. Knowledge generally means a medical provider advised you that your condition could be related to your current or former employment. Often, a person will be diagnosed with a condition that might otherwise be a presumptive injury but they have no idea that it could be job related. When you are retired and you suffer some type of heart condition or cancer, your doctors will rarely ask you what you did for a living and tell you that this is a job related injury. Their focus is to treat you and get you well. If, however, your doctor says to you….”you know, this cancer could be related to all those exposures you had during your 30 year career as a firefighter”, then you now have knowledge that your condition may be job related. At that point, you need run to the most qualified and experienced attorney to get legal advice on whether your condition may be presumptive and should be filed within the workers’ compensation appeals.
Also remember that “knowledge” can come from different sources including medical trust funds (such as LAFRA) that handle your insurance. There are statutes that require a medical trust fund to contact you and instruct you to file a workers’ compensation claim if they are paying for treatment that might be covered by a presumption. A court could consider that sufficient knowledge that your condition may be work related and thus the statute of limitations (one year) to file a claim may be running from when you were contacted.
As you can see, how long a presumption may exist and how long you have to file a claim are two very different and complicated concepts. Don’t ever assume you know the correct answers. Play it safe and discuss the issues with a knowledgeable and reputable attorney. In the meantime and especially in these difficult times, please stay safe and healthy.
By Robert J. Sherwin – Lewis, Marenstein, Wicke, Sherwin & Lee
