Special Labor Code Sections: Presumptive Industrial Injuries

What are Presumptive Industrial Injuries?
Common Presumptive Injuries for California Peace Officers and Firefighters
Presumptions and Case Law
Labor Code Section 4850 - Salary Continuation
Eligible Employees
Presumptive Justice for Those Who Protect and Serve—Labor Code Sections 3212 to 3213
What the Presumptions Include
Apportionment
Pension/Disability Retirement Issues
Death Benefits
Injuries/illnesses related to Labor Code 3212
Presumptions and COVID-19
Temporary Disability and COVID-19
COVID-19 Causation Issues

What are Presumptive Industrial Injuries?

In California's Workers' Compensation system, there are specific laws covering injuries that are legally presumed to be caused by certain types of employment. A presumption is a legal concept that shifts the burden of proof in an injury claim from the employee to the employer. When an injury is covered by a presumption law, the employer has a large legal burden to prove the injury is not work related. In other words, for certain classes of employees, the injury is presumed to be caused by the work undertaken.

Common Presumptive Injuries for California Peace Officers and Firefighters

The most common presumptive injuries are heart trouble and cancer cases. Take cancer, for example. Oftentimes the disease can have multiple or unknown causes. But with certain occupations, such as firefighters and peace officers, where these employees are potentially  exposed to cancer-causing agents more than the rest of the work population, the law provides that a firefighter or peace officer diagnosed with cancer has the legal presumption that the cancer was caused by work-related exposures. The presumption in that situation is intended to ease the burden on the injured worker and make it easier for him or her to prove the cancer was contracted at work. A more recent example is the new legislation enacted creating a presumption for certain COVID-19 viral exposures.  

Presumptions and Case Law

There are legal presumptions for many different types of injures, and they may apply to several different types of employees. The presumption laws are controlled by the related case law so it is important to have the evidence properly presented to meet the current legal standard. Every case must be reviewed carefully to determine whether or not the law applies to the injured worker in his or her particular case.

Labor Code Section 4850 - Salary Continuation

Certain law enforcement officers and firefighters are generally entitled to full payment of salary, not to exceed one year, while on leave of absence for a work injury or when permanently disabled per Labor Code Section 4850. It is important to note that this entitlement is payable up to one full year of payments, and is not limited to the one calendar year immediately following the date of injury, as the benefits may be paid during discontinuous periods of entitlement which ultimately total one year of payments. This salary continuation benefit is paid in lieu of workers' compensation temporary disability benefits. Leave of absence pursuant to this Code section does not count against personal family medical leave benefits afforded workers per California state law.

Upon expiration of Labor Code Section 4850 payments, if still temporarily disabled, the injured worker is eligible to receive workers' compensation temporary disability benefits. There are certain time limits within which an injured worker can receive temporary disability benefits, and these time limits may vary depending on the worker's date of injury. In most cases the temporary disability benefits will not be paid beyond 104 weeks of payments.

Eligible Employees Include:

• City police officers
• City, county or district firefighters
• Sheriffs
• Inspectors, investigators, detectives, correctional officers, or personnel with district attorney's office involved in law enforcement
• County probation officers
• Certain employees of a probation office
• Peace officers under 830.31 of the Penal Code employed on a regular, fulltime basis of a county of the first class
• Lifeguards, if full-time by a county of the first class
• Airport police under subsection 830.33 of the Penal Code
• Harbor and Port police under subsection 830.33 of the Penal Code
• Los Angeles Unified School District school police

Certain Department of Justice employees, Port employees, Commission employees, Highway Patrol, University of California Police and University of California Firefighters, and other active law enforcement officers are also entitled to a similar leave benefit pursuant to specifically enacted subsections of Labor Code Sections 4800 to 4804.

Presumptive Justice for Those Who Protect and Serve—

Labor Code Sections 3212 to 3213 - Types of Injuries Presumed to be Caused by Work

California police officers and firefighters and other public safety officers are entitled to a "presumption" or advantage in proving certain types of work injuries as enumerated in Labor Code Sections 3212 through 3213. It should be noted that certain public safety officers may be excluded from certain presumptions depending on which Penal Code section covers their job.

These Presumptions Include:

• Labor Code Section 3212, 3212.3 to 3212.5 - Hernia, Heart Trouble and Pneumonia for various public safety workers.
• Labor Code Section 3212.1 - Cancer, including leukemia, if the member demonstrates that he or she is exposed to a known carcinogen, for peace officers and firefighters. Go to the International Agency for Research on Cancer website: http://monographs.iarc.fr/  for more information about cancer-causing carcinogens.
• Labor Code Section 3212.6 and 3212.10 - Tuberculosis, covers peace officers, prison guards, correctional officers and firefighters.
• Labor Code Section 3212.8 - Blood-borne infectious disease for peace officers as defined by Penal Code Section 830 et seq. and firefighters. Examples include HIV and hepatitis.
• Labor Code Section 3212.85 - Exposure to biochemical substances for peace officers as defined by Penal Code Section 830 et seq. and firefighters. Biochemical is defined as "any biological or chemical agent that may be used as a weapon of mass destruction."
• Labor Code Section 3212.9 - Meningitis for peace officers, probation officers, district attorney investigators and firefighters.
• Labor Code Section 3212.11 - Skin cancer for lifeguards.
• Labor Code Section 3212.12 - Lyme disease for peace officers and corp members.
• Labor Code Section 3213.2 - Lower back, "duty belt" defined. Most police officers with five years of employment that required the use of a duty belt.

Many of these presumptions extend up to 60 months from the last date of work. On January 1, 2011, The William Dallas Jones Cancer Presumption Act of 2010 went into effect, extending the existing statute of limitations from five years up to 10 years from the last date worked. The length of the statute of limitations is calculated by a period of three calendar months for each full year of the requisite service, up to 10 years from the last date worked.

Apportionment

It is important to note that the rules regarding apportionment were changed in 2004, pursuant to Senate Bill 899, amending Labor Code Section 4663. Apportionment is the splitting up of permanent disability based on the percentage of industrial versus non-industrial disability. However, in 2006, the Legislature amended and clarified Labor Code Section 4663 in presumption cases. Now, once a work injury is established in a presumption case per the Labor Code Sections cited above, there can be no apportionment to a preexisting disability or condition.

Pension/Disability Retirement Issues

Retirement, pension and disability issues often arise due to a work injury or illness. We believe that when these issues arise, they should be coordinated with the filing of a workers' compensation claim. There are many different retirement plans, each having different rules relating to workers' compensation benefits. It is important to consult a knowledgeable attorney to make sure that potential benefits are not lost.

Death Benefits

Pursuant to Labor Code Section 4700, death to an employee that occurred arising out of and in the course of employment entitles partial and total dependents of the decedent to a monetary workers' compensation death benefit. Labor Code Section 4709 confers a scholarship on children dependent upon certain types of peace officers if killed (or rendered totally disabled as a result of an accident or an injury caused by external violence or physical force) while on duty. Labor Code Section 4856 allows for continued provision of health benefits to surviving spouse and dependents of deceased firefighters or peace officers. If an officer or firefighter dies in the line of duty, the surviving spouse and minor children continue with health coverage that was in effect at the time of the death.

Injuries/Illnesses Related to Labor Code 3212

• Back injuries
• Hernia
• Heart Trouble
• Pneumonia
• Cancer
• Tuberculosis
• Blood-borne infectious disease
• Bio-hazard exposure
• Meningitis

Presumptions and COVID-19

California Executive Order N-62-20

California Governor Gavin Newsom issued an Executive Order on May 6, 2020 that creates a rebuttable presumption that COVID-19 exposure is work-related if the employee is required to work (outside of home) at the direction of the employer between March 19, 2020 and July 5, 2020. The worker must be tested as positive or diagnosed with COVID-19 within 14 days after physically working during that time period. If there is a diagnosis, it must be confirmed by further testing within 30 days of that positive test.

Temporary Disability and COVID-19

The employee must use paid sick leave available in response to COVID-19 first before being eligible for Temporary Disability (TD). The following are the requirements for receiving TD benefits:

• If a worker tested positive or was diagnosed on or after the May 6, 2020 Order, he or she must be certified for TD within the first 15 days after the initial diagnosis, and be recertified every 15 days for first 45 days.
• If a worker tested positive or diagnosed prior to the May 6, 2020 Order, he or she must obtain TD certification within 15 days after May 6, and be recertified every 15 days for first 45 days.

COVID-19 Causation Issues

Previous case law supported the fact that the burden of proof was on the employee to establish that he or she was subject to special or materially greater risk than that of the general public. Without this presumption, it could be difficult to pinpoint precisely when and where a worker contracted COVID-19.

Attorney Steve Scardino on Advanced Disability Pension Payments

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