Two areas of concern are as follows:
1)Defense of Public Safety Officer injury presumptions
2)Impact of retirement and Labor Code Section 4850 benefits.
Our goal is to provide an effective plan of action in mitigating the exposure for the aforementioned concerns.
- PRESUMPTIVE INJURIES FOR PUBLIC SAFETY OFFICERS LABOR CODE §3212 through 3213.2
- First analysis when handed a PSO claim form
- Does the PSO qualify for the presumption?
- Does the body part or condition qualify?
- Read the applicable Statutes – there are 16 presumptions.
- Presumptions commonly pled
- Cancer
- Heart, including hypertension
- Low back – gun belt presumption
- Identifying those presumptions that are defendable/rebuttable
- Cancer
a.Generally applies to most police, deputy sheriffs and firefighters. The presumption can continue for up to 10 years after the last date of active duty (3 months for every 1 year of service, e.g., 30 years of service = 90 months = 7.5 years).
However, presumption may be applicable if cancer is diagnosed more than 10 years from last date of service, but developed or manifested within the presumption period.
b.Applicant must demonstrate:
(1) Exposure to carcinogens;
(2) Development of cancer; and,
(3) Service as a police officer/firefighter. No minimum threshold for dose or length of exposure. (Faust and Garcia)
c.To rebut the presumption, defendant has to demonstrate:
(1) The primary site of the cancer; and,
(2)No reasonable link between the particular type of cancer and the carcinogens to which the injured worker was exposed.
(3)What is not considered “no reasonable link?”
(4)What is the impact of latency?
- Impact of shifting the burden
(1)Applicant has to disprove a reasonable link; and
(2)Establish the primary site of the cancer.
- Discovery considerations – to AME or not to AME
(1)Is the cancer one that is reasonably associated with applicant’s position, if so, an AME may be warranted.
(2)Is the cancer one that would not reasonably be associated with applicant’s positions (i.e. acute lympocytic leukemia in a 32 years old police officer), you may want to consider a panel.
(3)Adverse medical finding, consider retaining outside expert assistance to attack those findings.
- Heart
a.Generally applies to most police, deputy sheriffs and firefighters. Many must have worked for at least 5 years. The presumption can continue for up to 5 years after the last date of active duty.
b.By definition, “heart trouble” has been held to include “hypertension” that, in fact affects the employee’s heart, causing “heart trouble.”
Muznik v. WCAB (1975) 40 CCC 578.
However, hypertension alone is not considered heart trouble.
Hamilton v. WCAB (1979) 44 CCC 520
c.Applicant must demonstrate heart trouble
d.To rebut the presumption, defendant must demonstrate
(1)“contemporaneous non-work related event” similar to strenuous exertion in a non-industrial setting to be the sole cause of injury. (see Parish v. WCAB (1989), 210 CA3d 92; see also CCSF v. WCAB (Estrada) (1997), 62 CCC 1271).
(2)The presumption cannot be rebutted by a preexisting disease process.
(3)Further, if a presumptive heart injury plays any contributing role to a death claim (even a non- industrial death), the anti-attribution clause requires a finding of industrial death (see CCSF v. WCAB (Smith) (2011), 76 CCC 256).
e.Discovery considerations – to AME or not to AME
(1)AME will assist in mitigating the exposure on permanent disability.
(2)AME will be open to a reverse Almarez/Guzman.
(3)Expert opinion on DFEC to reduce exposure.
3.Low back
a.Police officer for city, county or city and county; Deputy sheriff, Peace officer employed by CHP, UC. Must be employed for at least 5 years, required to wear a duty belt.
b.Applicant must demonstrate condition to his low back
c.To rebut, defendant must demonstrate – good luck!
d. Discovery considerations – to AME or not AME
(1)Long term PSO, AME may be warranted to mitigate the exposure on permanent disability;
(2)Surveillance is a great tool to demonstrate the PSO is far more active than what is presented to the evaluator.
4.Anti-Attribution Clauses:
a.Note, Labor Code §4663(e) applies that the anti- attribution provisions to all of the presumptions.
(1)The result is that evidence that the employee was suffering from the condition prior to employment does not rebut the presumption.
(2) Evidence of congenital defect or family history of the condition does not rebut the presumption
b.In appropriate cases, evidence of contemporaneous, non- work related events causative of the condition can rebut the presumption.
II.RESOLUTION OF LABOR CODE §4850 BENEFITS IN CONNECTION WITH AN INDUSTRIAL DISABILITY RETIRMENT
A.Labor Code §4850 provides
1.Full Salary, tax free, for one year.
2.Subject to 104-week TD cap within 5 years from date of injury for all injuries on or after 1/1/08. (Knittel)
3.Not subject to 104-week TD cap for injuries before 1/1/08. After 4850 exhausts, Applicant is entitled to another 2 years of TTD for injuries before 1/1/08. CCSF v. WCAB (Bryant)(2007), 72 CCC 1013.
4.Benefits owed even after P&S if career ending injury up until date Applicant’s disability retirement is granted. County of San Bernardino v. WCAB (Reed), (2005) 66 CCC 739.
5.Advanced Disability Pension Payments owed if Applicant files Application for PERS Industrial Disability Retirement or 1937 Act Service Connected Disability Retirement. LC §4850.3 and LC §4850.4. (Check the Memorandum of Understanding)
B.Mitigating exposure on Labor Code §4850 benefits
1.Buy out of the remaining benefit.
2.Interplay with providing an Industrial Disability Retirement.
C.Impact of County of 1937 Act
1.§4850 benefits continue after retirement under the County Employees Retirement Act of 1937. County of Orange v. WCAB (Moore), 75 CCC 1422 (W/D – 2010).
2.CountyBoard has the authority to grant industrial retirements.
III.HYPOTHETICAL IN RESOLVING THE 4850 BENEFIT WITH A PROVISION OF AN INDSUTRIAL DISABILITY RETIREMENT
A.Facts - IW is age 50, is a sworn police officer, has 30 years of service, and has an accepted bilateral knee injury that will require total knee replacements. IW is currently on light duty and has not yet missed any time from work. 1st knee surgery is scheduled in the immediate future, with the subsequent TKR set in 5 months. Total estimated time off: at least 1 year. Applicant earns $120,000/year plus benefits.
Employer is a small public agency, has a 3@50 PERS contract, is understaffed, and is a member of a JPA.
B.Impact to the employer and the JPA - Under this scenario, the IW is about to become TTD for at least a year due to the upcoming surgeries. Because he/she is age 50, there is no cost to the employer for a PERS Industrial Disability Retirement (IDR). However, since the JPA only pays for the TD rate during the year of LC 4850, the cost of the year of 4850 is split between the JPA and the Employer.
Although the IW is not yet MMI, and won't be for at least a year, there is strong medical evidence to suggest it is highly unlikely that the IW will be able to return to full and unrestricted duty.
A mutually beneficial package exists where the employer grants an IDR, the IW agrees to an IDR, and the employer/JPA provide a lump sum payment to the IW equivalent to 50% of the anticipated year of LC 4850 benefits.
Under this scenario, the employer saves over $100,000 and the IW receives a benefit of close to $60,000.
However, some questions exist over how the costs/benefits are divided between the JPA and the employer. Further, it requires coordination between the two entities.
C.Analysis of anticipated costs (nonmedical) and benefits to all parties for proceeding with surgery and keeping the IW on the books
1.Costs to Employer (approx. $200,000 less reimbursement from JPA):
a.1 year of LC 4850 pay = $120,000
b.Employee benefits for that year = $2,500/month = $30,000
c.Overtime and staffing costs to cover injured worker: $50,000
2.Costs to JPA ($52,546)
a.1 year at the TD rate ($1,010.50/wk) = $52,546
3.Benefits to IW: ($120,000)
a.1 year of LC 4850 benefits = $120,000
b.1 year of service credit (an additional 3% to his/her pension)
c.1 year of benefits (health, dental, etc)
D.Analysis of proceeding with surgery, but grant IDR now and provide a 50% LC 4850 buyout:
1.Costs to Employer ($60,000)
a.50% buyout of LC 4850 = $60,000
b.Savings of 1 year of benefits, ability to fill position with a new hire
2.Costs to JPA (between $26,273 - $60,000)
a.Somewhere between 50% of TD owed to 50% of LC 4850 owed
3.Benefits to IW ($180,000)
a.1 year of pension = 90% of $120,000 = $108,000 (of which $60K would be tax free)
b.LC 4850 buyout = $60,000
c.Loss of employee benefits.
d.Retiree benefits.
E.Questions
1.If parties were able to agree to a LC 4850 buyout, how is that cost divided between the JPA and the Employer?
2.If this compromise benefits the Employer and the Employee, but not the JPA, is there a conflict? How determine the best outcome?
3.How are costs passed on to the entire JPA? Is there a way to divide costs that specifically benefit a single employer?
LISTING OF PRESUMPTIONS
I. LC §3212 – §3213 – Presumptive injuries for peace officers
3212 Hernia, Heart trouble, pneumonia
3212.1 Cancer
3212.2 Heart- Department of Corrections/Youth Authority
3212.3 Heart/Pneumonia - CHP
3212.4 Heart/hernia/pneumonia – UC Fire Dept
3212.5 Peace officers – heart/pneumonia
3212.6 Peace officers, prison guards, correctional officers, firefighters - TB
3212.7 Department of Justice – heart trouble, hernia, pneumonia, TB
3212.8 Peace officers – blood borne infections disease
3212.85 Injury includes exposure to biochemical substances
3212.9 Peace officers - probation officers, DA investigators, firefighters – meningitis
3212.10 Peace officers – heart, pneumonia, TB, meningitis
3212.11 Skin cancer for lifeguards
3212.12 Lyme disease for certain peace officers
3213 UC Police – heart/pneumonia
3213.2 Low Back – certain law enforcement officers
- The Presumptions (Summary)
LC §3212: Hernia, Pneumonia and Heart
Hernia: Sheriff, CHP, DA Inspectors, Police/Fire Inspectors, Firefighters.
Pneumonia and Heart: Firefighters
Hernia: County or City and CountyPeace Officers
Extension of 3 months for every year of service, capped at 60 months.
LC §3212.1: Cancer
Firefighters of a city, county, city and county, district, or other municipal corporation or political subdivision, see also UC and CSU, Dept of Forestry, etc.
Peace officers as defined in Section 830.1, 830.2(a), and 830.37(a) and (b).
Applies to cancers including leukemia that develop or manifest itself during a period in which the member is in service, and is extended following termination of services for 3 months for every year worked not to exceed 120 months after last date actually worked.
LC §3212.2: Heart
Dep’t of Corrections officers with custodial duties and Department of Youth Authority having group supervisory duties, and security officers employed at the Atascadero State Hospital.
Extension of 3 months for every year of service, capped at 60 months.
LC §3212.3: Heart and Pneumonia
CHP
Extension of 3 months for every year of service, capped at 60 months.
LC §3212.4: Heart, Hernia, Pneumonia
UC Fire Department.
Extension of 3 months for every year of service, capped at 60 months.
LC §3212.5: Heart Trouble, Pneumonia
City or municipality Police officers, CHP, Deputy Sheriff, DA Iinspector or Investigator. Heart trouble or pneumonia so developing or manifesting itself after 5 years of service. Anti-attribution clause.
Extension of 3 months for every year of service, capped at 60 months.
LC §3212.6 Tuberculosis
Peace officers, Prison Guards, Correctional Officers, Firefighters.
Extension of 3 months for every year of service, capped at 60 months.
LC §3212.7 Heart Trouble, Hernia, Pneumonia, Tuberculosis
Department of Justice, state safety class
Extension of 3 months for every year of service, capped at 60 months.
LC §3212.8 Blood borne infections disease, MRSA
Sheriff, police, fire of cities, counties, cities and counties, districts, or other public or municipal corporations or political subdivisions, or individuals described in Chapter 4.5 of Title 3 of Part 2 of the Penal Code.
All blood-borne infections diseases or MRSA. Extension of blood borne presumption for 3 months for every year of service capped at 60 months, MRSA is extended for 90 days after last day actually worked.
LC §3212.85 Biochemical Substances
Peace officers described in Penal Code 830.1-830.5, firefighters. Illness or death due to exposure to a biochemical substance (any biological or chemical agent that may be used months for every year of service, capped at 60 months.
LC §3212.9 Meningitis
Police officers of a city, county, city and county, sheriff’s office, CHP, county probation officer, or DA investigator or inspector.
Extension of 3 months for every year of service, capped at 60 months.
LC §3212.10 Heart trouble, pneumonia, tuberculosis, meningitis
For peace officers for the Department of Corrections with custodial or supervisory duties of inmates or paroles, or a peace officer with Dep’t of Youth Authority with custodial/supervisory duties, or peace officer as defined in Penal Code Section 830.5.
Extension of 3 months for every year of service, capped at 60 months.
LC §3212.11 Skin Cancer for lifeguards
LC §3212.12 Lyme disease for various peace officers
LC §3213 Heart trouble and pneumonia
UC Police
LC §3213.2 Low back presumption
Police officer for city, county or city and county; Deputy sheriff, Peace officer employed by CHP, UC. Must be employed for at least 5 years, required to wear a duty belt.
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