For decades, California law has recognized the risk of certain occupational illnesses and injuries that firefighters face. The state’s legislature has acknowledged these risks by deeming these conditions presumptively work-related, including: cancer, heart trouble, hernia, PTSD, and blood-borne infectious diseases.
When a condition is legally presumed to be caused by work, it is up to the employer to “rebut” the presumption and prove that the condition was not industrially caused. If the employer cannot rebut the presumption, the condition is automatically considered work-related and entitles the affected firefighter to workers’ compensation benefits.
Despite these legal protections, firefighters across the state have consistently encountered significant delays in the acceptance of their legally presumed work-related injuries. A firefighter diagnosed with cancer would often wait for 90 days before being told that his or her employer denied their claim. From there, they would wait potentially months longer to see a medical-legal evaluator whose reporting would often state the obvious: the firefighter was diagnosed with cancer, the firefighter had been exposed to a host of carcinogens over his or her career, and there existed no evidence of the cancer being caused by something other than work. Even then, the firefighter may wait additional months as his or her claim was litigated if their employer refused to accept the medical report. All the while, he or she might go without pay.
In truth, most presumptive injuries are very difficult to legally rebut. When it comes to heart trouble, even congenital defects at birth that a doctor deems the sole cause of a firefighter’s injury are insufficient to rebut the presumption – meaning the claim is nevertheless deemed work-related.
But despite the near legal certainty that the vast majority of firefighters’ presumptive claims will ultimately be found work-related, various employers, administrators and insurers have taken full advantage of the excessive delay that the workers’ compensation system permits to make the diagnosed firefighter wait months for benefits to which he or she is entitled – that is, until now.
After monumental efforts by the California Association of Professional Firefighters, and its locals, the alarm bells have finally been wrung regarding this issue. Utilizing significant lobbying efforts and providing real life examples of firefighters who have been negatively impacted by delays in their presumptive cases, the legislature has passed and the governor has signed Senate Bill 1127, which goes into effect January 1, 2023.
The bill is a landmark victory in protecting those diagnosed with presumptive injuries and illness. It reduces the normal 90 days in which an employer must accept or deny a claim down to 75 days. It lengthens the maximum period of temporary disability benefits for those diagnosed with cancer on or after January 1, 2023, from 104 weeks to 240 weeks. It significantly increases penalties against an employer who unreasonably delays or denies benefits for a presumptive injury: previously the penalty was 10-25% of the delayed benefit, capped at $10,000.00 maximum and is now five-times the delayed benefit, capped at $50,000.00. And, importantly, the bill funds the Department of Industrial Relations to begin collecting and tracking data regarding the time it takes between an injured worker filing a claim and when that claim is ultimately accepted or denied to, presumably, allow policy makers full data in reviewing whether any abuses of the system continue to occur.
Most of the bill’s provisions are forward-looking, going into effect after January 1, 2023. However, as it relates to the increased penalty for unreasonably denied or delayed benefits, SB 1127 entitles any firefighter, no matter his or her date of presumptive injury, to seek increased compensation for the delay. This means that those firefighters who encountered unreasonable delays in benefits related to presumptive claims any time in the past may potentially pursue maximum penalties under the new law.
It is worth noting that a determination of “unreasonable delay” of benefits is a finding that a workers’ compensation judge must make and usually requires the assistance of an attorney. Those who believe their claims were unreasonably delayed should speak with their existing workers’ compensation attorney, or reach out to an attorney experienced in litigating presumptive injuries. But, most importantly, the risk of this increased penalty will hopefully change the practice of employers and their administrators. The age-old practice of “deny first and ask questions later” runs the risk of significant financial exposure and as a result, finally, puts the firefighter’s health and welfare at the forefront.
On a personal note, we at Straussner Sherman Lonné Treger Helquist were honored to work with CPF and the Firefighter Cancer Support Network to provide stories of our clients who were significantly impacted by the delays in their claims’ acceptance. Those stories aided in the governor’s signature of SB 1127, and gave us an opportunity to give our clients a voice in helping to shape a better law for those firefighters who risk life and limb in service of our state.
By Benjamin Helquist – Senior Partner at Straussner, Sherman, Lonné, Treger, Helquist