Presumptive Conditions

 

Many California safety members and their families are protected from the hardships that can result from job-related injuries and illness — and even the work-related death of a safety member — by legislation that provides for what are called "presumptions". These presumptions mandate that certain particular medical problems sustained by safety members may be found to be job-related. Conditions covered by these presumptions include hernias, heart conditions, pneumonia, cancer, blood-borne infectious diseases, exposures to biochemical substances, meningitis. and, for certain classified employees in each case, lime disease and back conditions.

While all the above conditions may be presumed to be job-related, it should be noted that these presumptions are rebuttable. That means that if an employer can demonstrate the proper fact pattern, the presumption that an injury or illness is job-related may no longer apply, and medical care under Workers’ Compensation may be denied.

Also, upon the first reading of the statutes establishing these presumptions, they appear to be limited by time parameters based upon the length of employment of the safety member and the date when he/she ceases that employment. According to the Labor Code:

In the vast majority of cases, as most safety members are aware, the development of various medical conditions does not occur with one particular exposure, but with sustained exposures throughout the period of employment. Also, the latency period between the exposures and the actual manifestation of a particular illness may well be beyond the 60-month limit. That has led to the misconception that because the manifestation of the illness — or the death of the safety worker from that illness — occurs outside the 60-month window, the safety worker or his/her family may be denied a full cup of justice. However, that is not necessarily true. Each individual case must be reviewed on its own merits, with emphasis on exposures and manifestations.

For example, we recently completed a safety member’s death benefits case where the death actually occurred well outside the five-year window. However, based upon the facts presented, which were consistent with particular case law, the court ruled that the widow was still eligible for the death benefit of $250,000.

An interesting note also about this case (and many others) is that had the widow not sought legal counsel and merely followed the employer’s recommendation, she would have received a death benefit settlement of only $125,000. However, because of concerns raised by a fellow worker, this family came to our office, and their case was settled not for the $125,000 inappropriately offered by the employer, but for $250,000, as noted above. That means the family received an additional $125,000 of much-needed money as a result of taking the initiative to obtain legal counsel. Although death benefits are on the rise, the increase has not occurred fast enough to accommodate the tremendous needs of most injured workers’ families.

While death benefits are a very important aspect of work-related injury/illness presumption, perhaps more relevant to most safety members is the provision of medical care for presumptive injuries. Again, by proper development of the record, the safety member, once his/her condition is shown to be job-related, is able to receive medical care under the California Workers’ Compensation system for the presumptive body parts.

Obtaining medical care may require overcoming some hurdles, but the resulting benefit can be expansive. For example, care can include 24-hour in-home care for the member. Also, care can be extended to other systems that impact the job-related body part(s). For example, if a safety member has a heart condition and also is or becomes diabetic, and the only way to control the heart condition is to control the diabetes, the diabetes then falls within the scope of Workers’ Compensation.

As you may have read in many articles, Workers’ Compensation benefits other than death benefits have been minimized in the last several years. The creative counsel will look for other ancillary medical problems that emanate from your job-related medical condition or the medications you take for it, whether those problems are in the realm of pulmonary, renal, continence, potency or other conditions. Counsel will then ensure that you have medical coverage, not just for the job-related condition, but also for any condition caused or made worse by the job-related injury or illness or the medication you take for it.

I would strongly warn the worker and his/her family to realize that the employer is in an adversarial position when it comes to Workers’ Compensation benefits. Their role is to minimize, mitigate or deny benefits, no matter how long you have been employed or what your political connectivity is to the employer. Therefore, regardless of the position you hold with your employer, and regardless of the social interaction you may have with Human Resources, the Board of Supervisors, the City Council or the Mayor, it is important to recognize that their role is different when it comes to providing full coverage under Workers’ Compensation.

Your goal as the worker or family member is to ensure that you receive coverage and/or monies because of a job-related condition, and the only way this can be achieved is by building a proper foundation of factual material supporting the reality of the exposures, and establishing that the latency and manifestation period for a particular condition are supported by current case law which allows for the extension of benefits and coverage beyond the five-year limit defined in the Labor Code.

If you unfortunately develop a medical condition which potentially is connected to your work — and you are not within the five-year limit set forth by the Labor Code — it is important that you seek counsel so the foundation on which your case ultimately will be determined is full and complete. If you seek medical opinions without having the proper legal knowledge, the doctors you select, as well as the doctors to whom you are sent, while sharing social niceties with you, may not be placed in the best position to help you if you do not have or understand the proper history of exposures and symptomatology to share with them. The result? You and/or your family members may not receive your full cup of justice — i.e., the medical care and money you rightfully deserve under the Workers’ Compensation system.