Is Your Family Prepared?
By Robert Sherwin
Lewis, Marenstein, Wicke, Sherwin & Lee
“It will never happen to me. I’m invincible. Even if I do get injured on the job, I’ll bounce back and return to full duty.” That’s what most peace officers truly believe. They rarely consider or think about work-related injuries and the effect those injuries have on their careers and their families. But what if the unthinkable happens? What if you suffer a catastrophic injury that results in your death? What if you are diagnosed with cancer that takes your life?
LA County Sheriff's Department, LAPD, and other law enforcement agencies lose a number of officers every year to work-related injuries and illnesses. That should make you sit back and think about the above scenario. You are not immune to events like those that took the lives of your fellow officers: sudden tragic events that end careers and turn families upside down. What do these families now do? How do they deal with the grief of losing a loved one, and the income and support that person provided?
This article will recap the benefits a surviving spouse or dependent may receive when a peace officer dies because of a work-related injury. The three primary benefits are pension, worker’s compensation, and personal injury. However, some ancillary benefits from other agencies may be available as well.
To claim workers’ compensation death benefits, an individual must establish they were dependent upon the peace officer at the time of his/her injury that resulted in death. Dependency is a question of fact that is determined by a workers’ compensation judge. The degree of dependency (partial versus total) will determine the amount to which the dependent will receive in workers’ compensation payments. The payments are biweekly and for a limited period of time. They are not indefinite.
Children of the deceased officer, under the age of 18 at the time of the injury, are “presumed” to be total dependents. If a child is over the age of 18 at the time of the injury, he/she may still be a total dependent, but must prove it factually (i.e., living at home; full time student, etc.). If the child is over 18 and working, he/she may qualify as a dependent, but the degree of dependency may be partial versus total. Total dependents receive a greater amount of death benefit compensation than partial dependents.
A surviving spouse may qualify as a total dependent if they earn less than $30,000 in the year preceding the death of the peace officer. If they earned more than $30,000, they may still qualify as a partial dependent.
A person not a spouse, but rather a domestic partner, may qualify as a dependent, but they must be registered with the state and possibly with the respective department as a domestic partner. Parents, siblings, or other “good faith” members of the household may also qualify as dependents if they can establish some degree of dependency on the deceased.
Survivors pension benefits may be payable to the surviving spouse and/or children. Employers have different pension systems with different procedures, standards of proof, and ultimate benefits that may be payable. A surviving dependent should consult with the pension department of the employer and/or with an attorney competent in disability pensions, who can properly advise how best to proceed with a survivor’s pension.
If the death of a peace officer was caused by the negligence or intentional acts of a third party, then a personal injury action or wrongful death action may be a viable source of recovery for surviving family members. Domestic partners must be registered with the State of California in to order to recover in a third-party civil action. Typical injuries that give rise to a civil action include on-duty traffic accidents, product liability or defects contributing to or causing death, and premise negligence cases. In traffic accident cases, the action is normally filed against the negligent driver’s insurance company. In the event the negligent driver is uninsured or under insured, an action may be pursued against the officer’s own private auto insurance uninsured motorist provision. Because there are so many uninsured and under insured motorists in California, it is highly recommended that each peace officer carries the maximum UM coverage on their own auto policy.
Aside from proving “dependency,” a claimant must also prove there was a work-related injury resulting in death. Clearly if there is an on duty physical event that results in death, there should be no dispute. Traffic accidents, physical trauma suffered while engaged in police work, and similar acts will normally not be challenged by the employer. But what about internal illnesses that result in death?
Many physical conditions are “presumed” industrial for peace officers if they establish certain facts that trigger the presumption. Heart trouble, cancer, pneumonia, blood borne pathogen diseases (HIV, hepatitis), MRSA, tuberculosis, and meningitis are all conditions that are presumed “industrial” for police officers. If an officer dies because of any of those conditions, then his/her death would also be presumed industrial. These presumptive injuries normally must occur during the time the officer is employed but some can apply even after the officer stops working. Heart trouble that develops within five years from the last day of work is still presumed industrial. Cancer is presumptive for up to ten years, depending on the number of years worked. Cancer resulting in death is the most common injury we see in post-retirement situations. Proving cancer is a complicated matter, despite the existence of a presumption affecting the burden of proof. It is highly suggested that a peace officer consult with a knowledgeable attorney when first diagnosed with cancer. Creating a plan of action to prove the cancer is job related is crucial to insuring surviving loved ones are protected if the officer doesn’t survive his/her illness.
Other physical conditions that are not presumptive might still give rise to an industrial injury and death and should be explored with a knowledgeable, competent attorney. These could include hypertension, stroke, and possibly autoimmune diseases.
Educate your spouse, partner, and children. Make sure they know what to do if the unthinkable occurs. It’s not a pleasant conversation, but it’s one you need to have. In the meantime, stay healthy and safe.
Cancer Presumption Strengthened
By Robert Sherwin
Lewis, Marenstein, Wicke, Sherwin & Lee
California Governor Newsom recently signed into law legislation which significantly strengthens the cancer presumption for peace officers. As most of you know, cancer is presumed industrial for peace officers provided they meet the necessary criteria set forth in the Labor Code. If a peace officer is diagnosed with cancer and the primary site of the cancer is identified, the cancer is presumed to be job related if the cancer develops or manifests itself during the time the peace officer is employed or up to ten (10) years from the last day of work.
The time in which the cancer presumption applies after retiring depends on the length of service of the peace officer. In order to get the full ten-year extension, an officer would need to have worked 40 years. Further, the peace officer must show that he/she was exposed to a known carcinogen while employed. Once those criteria are met, the cancer presumption applies.
“Well then,” you may be asking, “why is it so difficult to get my cancer claim accepted by my employer? Isn’t it automatic?” One would think it would be pretty easy. Remember, however, you’re dealing with a public agency and their aim is to delay and deny, so it often takes months for a claim to be accepted and for workers’ compensation benefits to be provided.
In the normal claims process the employer has up to 90 days from the date you file a claim to investigate the claim and decide if they will accept or deny your claim. During that 90-day period, the employer is required to conduct a reasonable investigation into your claim and try to schedule some type of medical exam to address the issues of causation. The reality is that in most cases, the employer does no investigation and simply sits on the claim until they are made to do something. This results in significant delays for the injured worker in obtaining necessary medical treatment and payment of temporary disability. Whether the claim is for cancer, cardiovascular problems, or orthopedic issues, the delays are unfortunate and prejudicial to the peace officer.
Senate Bill 1127, which was approved by the Governor on September 29, 2022, attempts to change some of those delays on presumptive injuries, including cancer. Now an employer must reject a claim within 75 days after a claim is filed. Failure to do so means the injury is presumed compensable. In other words, the change in the time to accept or deny creates a second presumption of injury. The change applies to most of the presumptive injuries enjoyed by first responders, including heart trouble, hernias, pneumonia, back trouble (for peace officers only), etc.
The legislation included a new section of the Labor Code that states when liability is unreasonably rejected for these claims, a penalty can be imposed against the employer, which can be up to five times the amount of the benefits unreasonably delayed due to the rejection of liability with a maximum penalty of $50,000.00. The caveat to this penalty is that the question of any rejection and the reasonableness of the cause shall be determined by the Workers’ Compensation Appeals Board in accordance with the facts. In other words, on a case-by-case basis. And this penalty could apply to injuries that occurred prior to the operative date of the new legislation.
The second important aspect of this legislation increases the amount of temporary disability compensation for those injuries involving the cancer presumption. Prior to the new legislation, a peace officer, like all injured workers, was limited to 104 weeks of temporary disability within five years from the date of injury. Those 104 weeks would include one year of full salary under Labor Code section 4850 and then one year of temporary disability paid at the maximum state rate of compensation. Often peace officers suffering from cancer find themselves temporarily disabled longer than two years and outside the five-year limit. The new bill provides for up to 240 weeks of temporary disability (again, one year of 4850 benefits) and is not limited to payment within five years from the injury date. Thus a peace officer suffering from cancer, who is able to return to work but then has to go off again on temporary disability, would receive compensation more than five years from the injury date. That is a significant change and benefit to peace officers who sustain presumptive cancer injury.
Hopefully, these changes in presumptive cancer claims will lessen the delays that officers frequently see in getting claims accepted and benefits provided. Know your rights and be vigilant in protecting them.