by Jeannene L. Lafarga –
Not all injured workers are treated equally. Certain employees who risk their lives and health for the public are entitled to presumptions of work-related injury with respect to enumerated medical conditions (Labor Code section 3212, et seq.).
Who qualifies?
Presumptions apply to most employees in active law enforcement and firefighting. Among them are police officers, sheriff, firefighters, CHP, District Attorney inspectors and investigators, peace officers and other law enforcement workers. However, if the employee’s principal duties are clerical or do not clearly fall within the scope of active law enforcement, the presumptions do not apply.
What medical conditions fall under the presumptions?
Heart trouble: Broadly defined by the courts, this includes aortic valve disease, arteriosclerotic occlusive disease, heart attack caused by valvular lesions due to rheumatic fever, atherosclerotic disease, cardiomyopathy, atrial fibrillation and coronary heart insufficiency. Hypertension and arrhythmia in and of themselves are not the equivalent of heart trouble.
Cancer: The employee must establish exposure to a known carcinogen, as defined by statute. Exposure must have occurred during the period of employment. The cancer must have developed or manifested itself during the statutory time period. Medical evidence must include date of development or manifestation of cancer.
Lower Back Impairment: Most active law enforcement members also enjoy a presumption for lower back impairment (Gun Belt Presumption) when required to wear a duty belt as a condition of employment.
Other covered conditions include:
- Hernia
- Pneumonia
- Tuberculosis
- Meningitis
- Exposure to Biochemical Substance
Does the employee’s length of employment matter?
There are some limits on application of the presumptions based on length of employment. For the heart trouble presumption, the member must serve at least five years in the covered capacity. The “Gun Belt Presumption” requires five years as a peace officer on regular, full time salary.
In most cases, however, the presumption extends following termination of service for a period of three calendar months for each full year of the requisite service, not to exceed 60 months (120 months for cancer).
Are the presumptions strict or rebuttable?
The presumptions are rebuttable. They may be controverted by other evidence. Where facts support the presumption, the burden of proof shifts to the party against whom the presumption operates to prove nonexistence of industrial relationship. This is usually done by substantial medical evidence.
Does apportionment apply in presumption cases?
No. Many of the conditions for which presumption of injury applies are subject to an “anti-attribution clause”. The condition that develops or manifests itself during the period the member was in service cannot be attributed to any disease existing prior to the development or manifestation (e.g. hernia, heart trouble, pneumonia, blood-borne infectious disease). Although some of the medical conditions do not specifically have an “anti-attribution clause,” Labor Code section 4663(e) codifies that apportionment under Labor Code section 4663 does not apply to any of these special presumptions.
Practice tips: It is important to remember that these presumptions are rebuttable. Just because a doctor finds that a presumption applies does not mean it is so. While the condition is a medical issue, whether it constitutes a presumed injury can be a factual and legal issue.
Although apportionment under Labor Code section 4663 does not apply where there is a presumption, one can still argue Labor Code section 4664 applies.
When it comes to defending a case involving these special employees, some public entities tread more lightly due to the politics involved. Also, some cases are very sensitive in nature and may require a less aggressive defense. Thus, while the Labor Code and case law are important in this arena, your client’s wishes (which are often based on factors other than the law), must always be fully explored before proceeding with your defense plan of action.
An attorney for 20 years, Jeannene L. Lafarga’s reputation as an aggressive, results oriented defense attorney is well known at the WCAB. Sought after by clients with difficult fact patterns, advanced legal issues and/or aggressive applicant attorneys, Ms. Lafarga worked in the workers’ compensation arena even before becoming an attorney in 1996. Have a thorny legal issue? Contact Ms. Lafarga at (909) 476-0552 or jlafarga@bradfordbarthel.com.
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