Presumptive Injuries For Public Safety Members
Sworn safety members have been granted legal presumptions in proving certain injuries, and it is imperative that an injured worker be represented by an attorney knowledgeable about the legal nuances applicable to presumptions.
A presumption is a legal concept that shifts the burden of proof to the opponent. In workers’ compensation, if an employee is entitled to a presumption for an injury, the burden of proof will then shift to the employer to rebut the presumption. This is difficult, if not impossible, to do. Further, if an injury is covered by a presumption, then apportioning any permanent disability to nonindustrial causes or other injuries is precluded, and the safety member receives the full amount of compensation for any resulting permanent disability.
Presumptive injuries are encompassed within Labor Code Section 3212 and 3213 and include conditions such as heart trouble, pneumonia, hernias (including hiatal hernias that cause gastrointestinal symptoms), cancer, tuberculosis, back trouble (peace officers only), MRSA and diseases caused by bloodborne pathogens.
Not all sworn safety members are covered by these presumptions. Only those safety members specifically enunciated in each labor code section are entitled to the presumption. Further, some presumptions only apply to peace officers and not firefighters (e.g., back trouble).
Presumptions may also apply even after the safety member retires from his/her department. Most of the presumptions can apply up to five years from the last day of work as long as there is evidence that the condition developed or manifested itself within five years of earlier. For example, if a safety member were to retire on January 1, 2018, and then develop heart trouble by December 31, 2013, that heart trouble would be presumed industrial. The cancer presumption is an exception and may apply up to 10 years from the last day of work, depending on the years of service of the safety member.
Safety members often believe that certain injuries or conditions are presumptive which they are not. Hypertension, hearing loss, orthopedic conditions (including injuries to the neck, shoulders, knees and hips), gastrointestinal injury (except for hiatal hernia) and back trouble (except for police officers who have worn a duty belt) are all conditions that are not presumptive and must be proved by a preponderance of the evidence with medical reporting.
Clearly, presumptive injuries are a significant advantage for certain safety members. Having legal representation by an attorney experienced and knowledgeable in this area is crucial.
On The Forefront Of Presumptive Injury Law
Lewis, Marenstein, Wicke, Sherwin & Lee, LLP, has been at the forefront in writing legislation on presumptive injuries and working with safety associations to pass such legislation in the California State Legislature. The firm has appeared before the California Court of Appeal and the California Supreme Court on countless occasions to argue on behalf of injured safety members and safety associations as a friend of the court to upload these valued presumptions.
In Jackson v. State of California, Robert Sherwin successfully argued before the California Court of Appeal that legislation (also written by the firm) prevented any apportionment of permanent disability on presumptive injuries. The published decision is a seminal decision that has saved safety members millions of dollars in final workers’ compensation awards dealing with presumptive injuries.