I have written countless articles on presumptive injuries in the past, yet I still meet with new clients who assume that an injury is “automatic” or “presumptive” and they don’t understand why the City is denying benefits. So let’s revisit the subject and give you the basics so you have a clear understanding of these injuries.
In most cases, an injured worker must prove that his/her injury arose out of and in the course of their employment. In cumulative trauma or occupational disease type injuries, that can be difficult and requires that the worker prove, by medical probability, that the injury is job related. A legal presumption is an evidentiary tool that can affect the burden of proof in any legal proceeding.
The legislature, long ago, recognized that firefighters have an inherently dangerous job that is both physically and emotionally stressful. Over the years, they have carved out certain physical conditions that are linked to physical and emotional stress and determined they should be “presumed” industrial. By terming those injuries presumptive, they have made it easier for firefighters to prove certain conditions or injuries are industrial. Once the firefighter meets the requisite criteria to establish the presumption applies, the burden of proof shifts to the employer to prove the injury is not industrial. In other words, the employer must “rebut” the presumption, often a daunting and impossible task.
Injuries or conditions that are considered presumptive are: heart trouble, pneumonia (not other respiratory conditions), hernias, blood borne pathogen diseases, tuberculosis, MRSA, meningitis, and cancer (including skin cancer). Injuries that are not presumptive are hypertension, gastrointestinal conditions, and orthopedic conditions caused by cumulative trauma (back, neck, knees, etc.).
Once you have identified a condition that is deemed presumptive, does that mean you “automatically” receive workers’ compensation benefits? Absolutely not. You must first establish that the presumption applies and only then does the burden of proof shift to the employer to rebut it.
“…The cancer presumption has been extended for up to ten years from the last day of work…”
So what are the criteria you must meet to have a presumptive injury? First, you must prove you are a firefighter or specific safety member as defined in the Labor Code section dealing with the specific presumptive type injury. Second, you must establish you suffer from the condition that is designated in the Labor Code section such as heart trouble. Note: heart trouble can mean many things, but is generally defined as any condition that is troublesome to the heart, including coronary artery disease and valvular disease (aortic valve, mitral valve, etc.). As noted earlier, hypertension alone is not considered heart trouble, but hypertension often causes enlargement of the muscles or ventricles surrounding the heart resulting in hypertensive heart disease. That is considered heart trouble and can easily be diagnosed with an echocardiogram.
Finally, you must prove that the condition manifested itself or developed during the time you were employed as a firefighter or up to a certain time after you retire. There are some presumptive injuries that require that you work at least five (5) years as a firefighter before it applies, while other presumptive injuries do not have this requirement.
Once you’ve met all of these criteria, the burden of proof then shifts to the City to rebut the presumption. They many not rebut the presumption by attributing your condition to a pre-existing disease such as a congenital abnormality. Often, doctors will state that a particular condition is a congenital one (you were born with it) and therefore it should not be considered industrial. That does not rebut the presumption because, while the condition may have developed prior to your commencement as a firefighter, the condition did not manifest itself until you came on the job.
The City may only rebut the presumption by proving the injury is a result of a “contemporaneous non-industrial event.” For example, if you were using illegal drugs which led to having a massive coronary incident that would arguably rebut the presumption. Again however, rebutting the presumption is a difficult task for the employer and yet many fight vigorously to defeat your claim.
The cancer presumption is a unique one in that the criteria for its application are somewhat different. You must establish all of the other normal presumption criteria, but also show that you were exposed to a known carcinogen as defined by the International Agency for Research on Cancer. You are not required to prove that your cancer was caused by a particular exposure. Rather, the presumption shifts the burden to the City to establish no connection and they must do this by producing studies or other evidence stating there is no link between the cancer and the exposure. Again . . . a difficult and imposing task.
Often, the City will attempt to rebut the cancer presumption by arguing the latency period for your specific cancer is insufficient. For example, you may contract cancer after you have only worked three years as a firefighter. Most doctors and oncologists believe that cancers have a latency period (the time from exposure to when the cancer develops) from 15-30 years. If your time frame is less than that, you should anticipate a fight on your hands from the City. I have won many latency arguments because the opinions on latency are not absolute, but merely opinions only. Further, with rare cancers, doctors don’t know the cause and/or the latency period and without an opinion on either, the presumption remains unrebutted.
Does a presumption apply to your injury if the condition is diagnosed and treated after you retire? Maybe! Most of the cancer presumptions apply up to five years from the last day of work. So, if four years and eleven months after your last day of work you were diagnosed with a presumptive type condition, the presumption would apply, provided you meet the other criteria. Once you do, the burden shifts over to your former employer.
The cancer presumption has been extended by the legislature for up to ten years from the last day of work, but in order to receive the full ten years, you would have to work 40 years as a firefighter. The cancer presumption is extended three months for each full year of service. So if you worked 30 years, the presumption would apply for up to 90 months (7.5 years) from your last day of work.
Do not let the extended time frame be a final factor in your decision to forgo or pursue a claim for a presumptive injury as often a thorough analysis of your case may reveal that your condition did develop or manifest itself within the enunciated time frame. I have successfully pursued many cases where the actual diagnosis and treatment commenced after the extended treatment which would lead you to believe the presumption doesn’t apply. However, in obtaining a detailed history from the injured firefighter, and reviewing medical records, it becomes clear that the condition was, in fact, developing or manifesting itself within the time frame for that particular presumption to apply. Cancer takes years to develop and often symptoms are present that don’t actually translate to the diagnosis until sometime later. The same holds true for many cardiovascular conditions.
The final thought to take from this discussion is to remember that while the presumptions make it easier for you to prove a workers’ compensation claim, they are, by no means, automatic. You will be examined by either an Agreed Medical Examiner or Qualified Medical Evaluator in connection with your claim and if the evidence isn’t presented correctly to that physician, your case could be denied, costing you or your family precious workers’ compensation benefits. Discuss your case with a knowledgeable attorney who can properly advise you on how to proceed and insure you are protected.
As always, stay safe and healthy.
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Presumptive Conditions
• heart trouble
• pneumonia (not other respiratory conditions)
• hernias
• blood borne pathogen diseases
• tuberculosis
• MRSA
• meningitis
• cancer (including skin cancer)
By Robert J. Sherwin
Lewis, Marenstein, Wicke, Sherwin & Lee