Heart, Cancer, Blood-Borne Infectious Disease, and Biochemical Presumptions

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1 November 2018 Heart, Cancer, Blood-Borne Infectious Disease, and Biochemical Presumptions Presenter Frank Boyd Senior Staff Counsel LACERA

2 PROVING INJURY IN RETIREMENT CASES NON-PRESUMPTION & PRESUMPTION CASES

3 SERVICE CONNECTION IN NON-PRESUMPTION CASES After proving permanent incapacity, service connection will be established only if the member s incapacity arose out of and in the course of the member s employment, and such employment substantially contributed to the incapacity. Gov. Code section Substantial contribution: There must be a "real and measurable" connection between the employment and the incapacity. Bowen v. Board of Retirement (1986) 42 Cal.3d

4 BURDEN OF PROOF IN NON- PRESUMPTION CASES NON-PRESUMPTION CASES Causation is established by a medical opinion from a physician. Physician describes the mechanism by which the job was a causal factor in the incapacity. The Board weighs the evidence then determines whether members have met their burden of proof. 4

5 BURDEN OF PROOF IN PRESUMPTION CASES PRESUMPTION CASES In a presumption case, the applicant is relieved of the burden of proving that the injury or illness arose out of and in the course of employment, and that the employment substantially contributed to the incapacity. Once certain prerequisite facts are established, the connection between the incapacity and employment is presumed to exist. 5

6 WHAT IS A PRESUMPTION? DEFINITION: It is an assumption of fact the law requires to be drawn from one or more other facts already established in the action. Evidence Code section

7 TYPES 1. Rebuttable Presumption: Establishes the existence of a fact unless evidence is introduced which would support a finding that the presumed fact does not exist. Evidence Code sections 604 and Conclusive Presumption: A finding of fact that the law requires to be made once prerequisite facts are established, even if there is evidence that would establish that the presumed fact is not true. Evidence Code section 630 et seq. 7

8 HEART PRESUMPTION Government Code section

9 HEART PRESUMPTION Government Code section : (a) If a safety member, a fireman member, or a member in active law enforcement who has completed five years or more of service under a pension system established pursuant to Chapter 4 (commencing with Section 31900) or under a pension system established pursuant to Chapter 5 (commencing with Section 32200) or both under this retirement system or under the State Employees Retirement System or under a retirement system established under this chapter in another county, and develops heart trouble, that heart trouble developing or manifesting itself in those cases shall be presumed to arise out of and in the course of employment. That heart trouble developing or manifesting itself in those cases shall in no case be attributed to any disease existing prior to such development or manifestation. (b) The presumption described in subdivision (a) is rebuttable by other evidence. Unless so rebutted, the board is bound to find in accordance with the presumption. (c) As used in this section, "fireman member" includes a member engaged in active fire suppression who is not classified as a safety member. (d) As used in this section, "member in active law enforcement" includes a member engaged in active law enforcement who is not classified as a safety member. 9

10 HEART G.C REQUIREMENTS 1. Safety membership, active fire suppression, or active law enforcement 2. Five years of service 3. Heart trouble 4. Disease must manifest itself as required 10

11 HEART PREREQUISITES 1. SAFETY MEMBERSHIP; OR Active Fire Suppression "Fireman" includes "active fire suppression" even if not a safety member. No CERL case law. Have to look to workers comp. cases for guidance. Extinguishing flames and rescuing victims not required. Proof of physically arduous duties not required. Frequently engaged in active fire suppression not required. OR... 11

12 HEART PREREQUISITES Active Law Enforcement Member in "active law enforcement" even if not a safety member. Ames v. Board of Retirement: Primary duty is to maintain security Contact with prisoners on a regular basis Exposure to hazards from prisoner conduct; and Risk of injury from the necessity of being able to cope with potential dangers inherent in the handling of prisoners. Ames v. Board of Retirement (1983) 147 Cal.App.3d 906,

13 5 years HEART PREREQUISITES 2. YEARS OF SERVICE REQUIRED Under specified system or systems 13

14 HEART PREREQUISITES 3. DEVELOPS HEART TROUBLE Has the heart been placed in a TROUBLED CONDITION? Heart trouble: "... encompass[es] any affliction to, or additional exertion of, the heart caused directly by that organ or the system to which it belongs, or to it through interaction with other afflicted areas of the body..." Muznik v. Workmen's Comp. Appeals Bd. (1975) 51 Cal.App.3d 622,

15 HEART PREREQUISITES 3. DEVELOPS HEART TROUBLE (cont.) If the heart is not placed in a troubled condition, there is no presumption. There is no presumption that the member is incapacitated. The presumption establishes that the heart trouble is work-related provided the member meets the prerequisites. 4. DISEASE MUST MANIFEST ITSELF AS REQUIRED. 15

16 HEART PRESUMPTION CAN THE HEART PRESUMPTION BE REBUTTED? Almost impossible Preexisting conditions cannot be used to rebut presumption. Exceptions: 1. Nonindustrial exertion may rebut. 2. Concurrent employment may rebut. 16

17 PELLERIN CASE It was previously thought that the presumption could not be rebutted. Pellerin found that the presumption could be rebutted. Pellerin v. Kern County Employees Retirement Association (2006) 145 Cal.App.4 th

18 HEART PRESUMPTION IS THERE AN EXTENSION AFTER THE MEMBER RETIRES? NO. Unlike the other presumptions, the "heart trouble" presumption is not extended for up to 60 months beyond termination of service as are the presumptions for cancer, most bloodborne infectious disease and illnesses from biochemical substance exposure. 18

19 QUESTIONS? 19

20 CANCER PRESUMPTION Government Code section

21 CANCER PRESUMPTION Government Code section : (a) If a safety member, a firefighter, or a member in active law enforcement who has completed five years or more of service under a pension system established pursuant to Chapter 4 (commencing with Section 31900) or under a pension system established pursuant to Chapter 5 (commencing with Section 32200) or both under this retirement system or under the Public Employees Retirement System or under a retirement system established under this chapter in another county, develops cancer, the cancer, so developing or manifesting itself in those cases shall be presumed to arise out of and in the course of employment. The cancer so developing or manifesting itself in those cases shall in no case be attributed to any disease existing prior to that development or manifestation. (b) Notwithstanding the existence of nonindustrial predisposing or contributing factors, any safety member, firefighter member, or member active in law enforcement described in subdivision (a) permanently incapacitated for the performance of duty as a result of cancer shall receive a service-connected disability retirement if the member demonstrates that he or she was exposed to a known carcinogen as a result of performance of job duties. "Known carcinogen" for purposes of this section means those carcinogenic agents recognized by the International Agency for Research on Cancer, or the Director of the Department of Industrial Relations. 21

22 CANCER PRESUMPTION (c) The presumption is disputable and may be controverted by evidence, that the carcinogen to which the member has demonstrated exposure is not reasonably linked to the disabling cancer, provided that the primary site of the cancer has been established. Unless so controverted, the board is bound to find in accordance with the presumption. This presumption shall be extended to a member following termination of service for a period of three calendar months for each full year of the requisite service, but not to exceed 60 months in any circumstance, commencing with the last date actually worked in the specified capacity. (d) "Firefighter," for purposes of this section, includes a member engaged in active fire suppression who is not classified as a safety member. (e) "Member in active law enforcement," for purposes of this section, includes a member engaged in active law enforcement who is not classified as a safety member. (Emphasis added.) 22

23 Requirements: CANCER G.C Cancer causes incapacity 2. Safety member, firefighter or active law enforcement 3. Five years of service 4. Develops cancer while in service. Time extension (up to five years after last day worked) 5. Exposure to known carcinogen on job 23

24 CANCER PREREQUISITES 1. MEMBER MUST BE PERMANENTLY INCAPACITATED BY CANCER. The presumption only addresses causation, it does not establish incapacity. 24

25 CANCER PREREQUISITES 2. SAFETY MEMBERSHIP; OR Firefighter "Firefighter" includes "active fire suppression" even if not a safety member. No CERL case law. Have to look to workers comp. cases for guidance; Extinguishing flames and rescuing victims not required; Proof of physically arduous duties not required; Frequently engaged in active fire suppression not required. OR... 25

26 CANCER PREREQUISITES Active Law Enforcement Member in "active law enforcement" even if not a safety member. Ames v. Board of Retirement: Primary duty is to maintain security Contact with prisoners on a regular basis Exposure to hazards from prisoner conduct; and Risk of injury from the necessity of being able to cope with potential dangers inherent in the handling of prisoners. Ames v. Board of Retirement (1983) 147 Cal.App.3d 906,

27 CANCER PREREQUISITES 3. YEARS OF SERVICE REQUIRED 5 years Under specified system or systems 27

28 CANCER PREREQUISITES 4. DEVELOPS CANCER Cancer must develop or manifest itself in the applicant. Extension: "... This presumption shall be extended to a member following termination of services for a period of three calendar months for each full year of the requisite service, but not to exceed 60 months in any circumstances, commencing with the last day actually worked in the specified capacity." Time for application The application shall be made while the member is in service, within four months after his or her discontinuance of service, within four months after the expiration of any period during which a presumption is extended beyond his or her discontinuance of service, or while, from the date of discontinuance of service to the time of the application, he or she is continuously physically or mentally incapacitated to perform his or her duties. (Emphasis added.) 28

29 CANCER PREREQUISITES 5. EXPOSURE TO A KNOWN CARCINOGEN ON THE JOB The applicant must demonstrate that he or she was exposed to a "known carcinogen" as a result of performance of job duties. Known Carcinogen: "those carcinogenic agents recognized by the International Agency for Research on Cancer, or the Director of the Department of Industrial Relations." 29

30 REBUTTING THE CANCER PRESUMPTION The Presumption cannot be attributed to any disease existing prior to that development or manifestation. But... The presumption may be rebutted if: 1. The primary site of the cancer has been established; and a) The carcinogen to which the member was exposed is not reasonably linked to the disabling cancer; or b) The period between the exposure and the manifestation is not within the cancer s latency period as established by medical evidence. Sameyah v LACERA (2010) 190 Cal.App.4 th

31 QUESTIONS? 31

32 BLOOD-BORNE INFECTIOUS DISEASE PRESUMPTION Government Code section

33 BLOOD-BORNE PRESUMPTION Government Code section : (a) If a safety member, a firefighter, a county probation officer, or a member in active law enforcement develops a blood-borne infectious disease or amethicillinresistant Staphylococcus aureus skin infection, the disease or skin infection so developing or manifesting itself in those cases shall be presumed to arise out of, and in the course of, employment. The blood-borne infectious disease or methicillin-resistant Staphylococcus aureus skin infection so developing or manifesting itself in those cases shall in no case be attributed to any disease or skin infection existing prior to that development or manifestation. (b) Any safety member, firefighter, county probation officer, or member active in law enforcement described in subdivision (a) permanently incapacitated for the performance of duty as a result of a blood-borne infectious disease or methicillinresistant Staphylococcus aureus skin infection shall receive a service-connected disability retirement. (c)(1) The presumption described in subdivision (a) is rebuttable by other evidence. Unless so rebutted, the board is bound to find in accordance with the presumption. 33

34 BLOOD-BORNE PRESUMPTION (2) The blood-borne infectious disease presumption shall be extended to a member following termination of service for a period of three calendar months for each full year of the requisite service, but not to exceed 60 months in any circumstance, commencing with the last date actually worked in the specified capacity. (3) Notwithstanding paragraph (2), the methicillin-resistant Staphylococcus aureus skin infection presumption shall be extended to a member following termination of service for a period of 90 days commencing with the last day actually worked in the specified capacity. (d) "Blood-borne infectious disease," for purposes of this section, means a disease caused by exposure to pathogenic microorganisms that are present in human blood that can cause disease in humans, including, but not limited to, those pathogenic microorganisms defined as blood-borne pathogens by the Department of Industrial Relations. 34

35 BLOOD-BORNE PRESUMPTION (e) "Member in active law enforcement," for purposes of this section, means members employed by a sheriff s office, by a police or fire department of a city, county, city and county, district, or by another public or municipal corporation or political subdivision or who are described in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of the Penal Code or who are employed by any county forestry or firefighting department or unit, except any of those members whose principal duties are clerical or otherwise do not clearly fall within the scope of active law enforcement services or active firefighting services, such as stenographers, telephone operators, and other office workers, and includes a member engaged in active law enforcement who is not classified as a safety member. 35

36 BLOOD-BORNE PRESUMPTION Requirements: 1. Designated occupation a.) Safety members b.) Firefighters c.) County Probation Officer d.) Members in active law enforcement 2. Develops blood-borne infectious disease 36

37 BLOOD-BORNE PRESUMPTION Requirements: 3. Permanent incapacity for duty due to blood-borne infectious disease 4. Time for application 5. What does the presumption establish? 6. The presumption is rebuttable 37

38 BLOOD-BORNE PRESUMPTION 1. Designated Occupation Safety Member Firefighter County Probation Officer "Members in Active Law Enforcement" means members engaged in "active law enforcement" who are not classified as safety members and are: --employed by a sheriff s office --employed by a police or fire department of city, county, city and county, district, or by another public or municipal corporation or political subdivision 38

39 BLOOD-BORNE PRESUMPTION "Members in Active Law Enforcement" (cont.) --employed by any county forestry or firefighting department or unit, except those whose principal duties are clerical or not within the scope of active law enforcement services or active firefighting services --Members defined as "peace officers" in Chapter 4.5 of Title 3 of Part 2 of the Penal Code Note: Contrary to other statutes, the Legislature included members engaged in active firefighting who are not classified as safety members in the definition of "members in active law enforcement." 39

40 BLOOD-BORNE PRESUMPTION Active Law Enforcement Member in "active law enforcement" even if not a safety member. Ames v. Board of Retirement: Primary duty is to maintain security Contact with prisoners on a regular basis Exposure to hazards from prisoner conduct; and Risk of injury from the necessity of being able to cope with potential dangers inherent in the handling of prisoners. Ames v. Board of Retirement (1983) 147 Cal.App.3d 906,

41 BLOOD-BORNE PRESUMPTION 2. Develops blood-borne infectious disease or Methicillin Resistant Staphylococcus Aureus (MRSA) Blood-borne infectious disease must develop or manifest itself in the applicant. 41

42 BLOOD-BORNE PRESUMPTION Blood-borne infectious disease: " a disease caused by exposure to pathogenic microorganisms that are present in human blood that can cause disease in humans, including, but not limited to, those pathogenic microorganisms defined as blood-borne pathogens by the Department of Industrial Relations." Department of Industrial Relations Blood-borne Pathogens: "'Bloodborne Pathogens'" means pathogenic microorganisms that are present in human blood and can cause disease in humans." These pathogens include, but are not limited to: Hepatitis B virus (HBV) Hepatitis C virus (HCV) Human immunodeficiency virus (HIV) 42

43 BLOOD-BORNE PRESUMPTION 3. Member must be permanently incapacitated as a result of a bloodborne infectious disease or methicillinresistant Staphylococcus aureus skin infection The presumption only addresses causation, it does not establish incapacity. 43

44 BLOOD-BORNE PRESUMPTION 4. Time for application The application shall be made while the member is in service, within four months after his or her discontinuance of service, within four months after the expiration of any period during which a presumption is extended beyond his or her discontinuance of service, or while, from the date of discontinuance of service to the time of the application, he or she is continuously physically or mentally incapacitated to perform his or her duties. (Emphasis added.) Gov. Code section

45 BLOOD-BORNE PRESUMPTION Time for application (cont.) Extension: "... This presumption shall be extended to a member following termination of services for a period of three calendar months for each full year of the requisite service, but not to exceed 60 months in any circumstances, commencing with the last day actually worked in the specified capacity." 45

46 BLOOD-BORNE PRESUMPTION Time for application (cont.) MRSA Extension (90 days) The MRSA presumption is extended to a member following termination of service for a period of 90 days commencing with the last day actually worked in the specified capacity. It is not extended for up to 60 months like other bloodborne infectious diseases. 46

47 BLOOD-BORNE PRESUMPTION 5. What does the presumption establish? The disease shall be: presumed to arise out of and in the course of employment and the permanently incapacitated member receives a serviceconnected disability retirement pension. 47

48 BLOOD-BORNE PRESUMPTION 6. The presumption is rebuttable... but the illness cannot be attributed to any illness existing prior to the development or manifestation. 48

49 QUESTIONS? 49

50 BIOCHEMICAL PRESUMPTION Government Code section

51 BIOCHEMICAL PRESUMPTION Government Code section : (a) If a peace officer member, as defined in Sections to 830.5, inclusive, of the Penal Code, or firefighter member, with service under a pension system established pursuant to Chapter 4 (commencing with Section 31900) or under a pension system established pursuant to Chapter 5 (commencing with Section 32200), or both, or under this retirement system, under the Public Employees Retirement System, or under a retirement system established under this chapter in another county, becomes ill or dies due to exposure to a biochemical substance, the illness that develops or manifests itself in those cases shall be presumed to arise out of, and in the course of, employment. The illness that develops or manifests itself in those cases shall in no case be attributed to any illness existing prior to that development or manifestation. (b) Any peace officer member or firefighter member, as described in subdivision (a), who becomes permanently incapacitated as a result of exposure to a biochemical substance shall receive a serviceconnected disability retirement. 51

52 BIOCHEMICAL PRESUMPTION Government Code section (cont.): (c) The presumption described in subdivision (a), is rebuttable by other evidence. Unless rebutted, the board is bound to find in accordance with the presumption. This presumption shall be extended to a member following termination of service for a period of three calendar months for each full year of the requisite service, but not to exceed 60 months in any circumstance, commencing with the last date actually worked in the specified capacity. (d) For purposes of this section, a peace officer member or firefighter member, as described in subdivision (a), does not include a member whose principal duties are clerical or otherwise do not clearly fall within the scope of active law enforcement services or active firefighting services, such as stenographers, telephone operators, and other office workers. (e) Biochemical substance means any biological or chemical agent that may be used as a weapon of mass destruction, including, but not limited to, any chemical warfare agent, weaponized biological agent, or nuclear or radiological agent, as these terms are defined in Section of the Penal Code. 52

53 Requirements: BIOCHEMICAL SUBSTANCE PRESUMPTION 1. Designated occupation a) Peace officer as defined in Penal Code to b) Firefighter member 2. Active law enforcement or firefighting 3. Membership in an identified pension system 4. Exposure to biochemical substance 53

54 BIOCHEMICAL SUBSTANCE PRESUMPTION Requirements (cont.): 5. Illness or death caused by exposure 6. Permanent incapacity due to exposure 7. Time for application 8. What does the presumption establish? 9. The presumption is rebuttable 54

55 BIOCHEMICAL PRESUMPTION 1. DESIGNATED OCCUPATION Peace Officer member (as defined in Penal Code to 830.5) Firefighter member Must be active law enforcement services or active firefighting services 55

56 BIOCHEMICAL PRESUMPTION 1. DESIGNATED OCCUPATION (cont.) Firefighter member 2. ACTIVE LAW ENFORCEMENT SERVICES OR ACTIVE FIREFIGHTING SERVICES A member whose principal duties are clerical or otherwise do not clearly fall within the scope of active law enforcement services or active firefighting services is not included in the term peace officer member or firefighter member. 56

57 BIOCHEMICAL PRESUMPTION Active Law Enforcement Member in "active law enforcement" even if not a safety member Ames v. Board of Retirement: Primary duty is to maintain security Contact with prisoners on a regular basis Exposure to hazards from prisoner conduct; and Risk of injury from the necessity of being able to cope with potential dangers inherent in the handling of prisoners. Ames v. Board of Retirement (1983) 147 Cal.App.3d 906,

58 Firefighter BIOCHEMICAL PRESUMPTION "Firefighter" includes "active fire suppression" even if not a safety member. No CERL case law. Have to look to workers compensation cases for guidance. Extinguishing flames and rescuing victims not required. Proof of physically arduous duties not required. Frequently engaged in active fire suppression not required. 3. MEMBERSHIP IN AN IDENTIFIED PENSION SYSTEM, INCLUDING CERL OF

59 BIOCHEMICAL PRESUMPTION 4. EXPOSURE TO BIOCHEMICAL SUBSTANCE Biochemical substance defined Government Code section , subdivision (e), defines "biochemical substance" as "any biological or chemical agent that may be used as a weapon of mass destruction, including but not limited to, any chemical warfare agent, weaponized biological agent, or nuclear or radiological agent, as these terms are defined in Section of the Penal Code." 59

60 BIOCHEMICAL PRESUMPTION Biochemical substance defined (cont.) Penal Code section 11417, subdivision (a), provides: [C]hemical warfare agents, weaponized biological or biologic warfare agents, restricted biological agents, nuclear agents, radiological agents, or the intentional release of industrial agents as a weapon, or an aircraft, vessel, or vehicle, as described in Section of the Vehicle Code, which is used as a destructive weapon. Nerve agents, including Tabun (GA), Sarin (GB), Soman (GD), GF, and VX. Choking agents, including Phosgene (CG) and Diphosgene (DP). Blood agents, including Hydrogen Cyanide (AC), Cyanogen Chloride (CK), and Arsine (SA). 60

61 BIOCHEMICAL PRESUMPTION Biochemical substance defined (cont.) Blister agents, including mustards. Weaponized pathogens, such as bacteria, viruses, rickettsia, yeasts, fungi, or genetically engineered pathogens, toxins, vectors, and endogenous biological regulators (EBRs). Nuclear or Radiological agents. The statute does not expressly provide that the applicant must have had the exposure to the biochemical substance that causes the illness or death while on the job in order to trigger the presumption. Rebuttal proof that the illness was contracted off the job may be proper rebuttal evidence. 61

62 BIOCHEMICAL PRESUMPTION 5. ILLNESS OR DEATH CAUSED BY EXPOSURE The member must have an actual illness, not a potential illness. The illness or death must be due to exposure to a biochemical substance. There must be a cause and effect relationship between the biochemical exposure and the illness or death. 62

63 BIOCHEMICAL PRESUMPTION 6. MEMBER MUST BE PERMANENTLY INCAPACITATED AS A RESULT OF EXPOSURE TO A BIOCHEMICAL SUBSTANCE. The presumption only addresses causation, it does not establish incapacity. 63

64 BIOCHEMICAL PRESUMPTION 7. TIME FOR APPLICATION The application shall be made while the member is in service, within four months after his or her discontinuance of service, within four months after the expiration of any period during which a presumption is extended beyond his or her discontinuance of service, or while, from the date of discontinuance of service to the time of the application, he or she is continuously physically or mentally incapacitated to perform his or her duties. (Emphasis added.) Gov. Code section

65 BIOCHEMICAL PRESUMPTION Time for application (cont.) Extension: '... This presumption shall be extended to a member following termination of services for a period of three calendar months for each full year of the requisite service, but not to exceed 60 months in any circumstances, commencing with the last day actually worked in the specified capacity.' 65

66 BIOCHEMICAL PRESUMPTION 8. WHAT DOES THE PRESUMPTION ESTABLISH? The disease shall be: presumed to arise out of and in the course of employment; and The permanently incapacitated member receives a service-connected disability retirement pension. 66

67 BIOCHEMICAL PRESUMPTION 9. The presumption is rebuttable... but the illness cannot be attributed to any illness existing prior to the development or manifestation. 67

68 QUESTIONS? 68