Benefits and Burdens of Public Safety Claims

&

Innovative Settlement Solutions

Wednesday, September 11, 2013

11:00 am – 12:15 pm

Presenters

•Paula White Senior Managing Partner - Mullen & Filippi

•Lynn Cavalcanti Senior VP Operations - AIMS

•Alex Wong Attorney at Law – Jones, Clifford, Johnson & Johnson LLP

•Joe Kriskovich Administrative Services Director – City of Manteca

Goals of Session

• Explain the Defense of Public Safety Officer Injury Presumptions

• Explore the Impact on Retirement and Labor Code Section 4850 Benefits

Presumptive Injuries

Labor Code §3212 Through 3213.2

Initial Analysis:• What Presumption is being raised?

• Does the Public Safety Officer Qualify?

• Read Statutes (16 Presumptions)

Presumptions Commonly Pled

• Cancer• Heart, Including Hypertension• Low Back – Gun Belt

Presumption

Cancer PresumptionInitial Analysis:

• Who Does It Apply To?

• How Long Can It Continue After the Last Date Of Active Service?

• When Did Public Safety Officer Develop Illness?

Cancer Presumption ContinuedApplicant Must Demonstrate:

• Exposure to Carcinogens;• Development of Cancer; and,• Service as a Police Officer/Firefighter. No Minimum Threshold for

Dose or Length of Exposure. (Faust and Garcia)

To rebut, Defendant has to Demonstrate :• The Primary Site of the Cancer; and, • No Reasonable Link Between the Particular Type of Cancer and the

Carcinogens to which the Injured Worker was Exposed

• What is not Considered “No Reasonable Link?”• What is the Impact of Latency?

Cancer Presumption ContinuedImpact of Shifting the Burden:•Disprove Reasonable Link•Establish Primary Site of Cancer

Discovery Considerations (AME vs. QME):•Reasonably Associated with Public Safety Officer’s Position•Handling Adverse Medical Findings

Heart PresumptionInitial Analysis:•Who Does it Apply to?•Definition of Heart Trouble

Applicant Must Demonstrate:•Heart Trouble

To Rebut, Defendant Must Demonstrate:•Contemporaneous Non-Work Related Event •Can not be Rebutted by Preexisting Disease Process•Contributing Factor in Death – Anti-Attribution Clause Applies

Heart Presumption ContinuedDiscovery Considerations (AME vs. QME):•Mitigation of Permanent Disability Exposure•Application of Reverse Almarez/Guzman• Expert Opinion on DFEC

Gun Belt/Low Back PresumptionInitial Analysis:•Who Qualifies?•Length of Time Wearing Gun Belt

Discovery Considerations:•Long Term vs. Short Term Employee•Surveillance to Substantiate Level of Disability

Anti-Attribution Clauses•Labor Code §4663(e) – Applies to all Presumptions

•Evidence of Suffering from Condition will not Rebut Presumption

•Evidence of Congenital Defect or Family History will not Rebut Presumption

•Evidence of Contemporaneous, Non-Work Related Events may Rebut the Presumption

Resolution of Labor Code §4850 Benefits in Connection With an Industrial Disability Retirement

Provisions of Labor Code §4850:

•Full Salary, Tax Free, One Year•Subject to 104 Week Cap (Injuries on/after 1/1/08)•Not Subject to 104 Week Cap ( Injuries prior to 1/1/08)•Benefits Owed Even After P&S (MMI) •Advanced Disability Retirement Pension Owed Once Application is Filed

County Employees Retirement Act Differences:

•§4850 benefits continue after retirement•County Board of Supervisors Grants Disability Retirements

Discussion of Hypothetical 4850 Claim with Disability RetirementInjury Facts:•50 Year Old, Sworn Police Officer•30 Years of Service•Accepted Bi-Lateral Knee Injury – Requiring Total Knee Replacements•Currently Working Light Duty with No Lost Time•1st Surgery is Being Schedule w/Second to Follow•Off Work Estimates of 1 Year Post Surgeries

Employment Facts:•Salary is $120,000 Per Year•PERS 3% @ 50•Small Public Agency•Workers’ Compensation through Joint Powers Authority

Costs/Benefits For All Parties To Consider (Non-Medical)

Employer = $200,000 •1 Year 4850 Benefits ($120,000)•Continued Health Benefits 1 Year ($30,000)•Overtime Cost 1 Year ($50,000)

JPA = $52,546•Total Temporary Disability for Minimum 1 Year @ $1,010.50/Wk

Injured Worker = $120,000•1 Year Full Salary (Tax Free)•1 Year of Additional Service Credit (Additional 3% to Service Credit)•1 Year Health Benefits

Discussion of 4850 Buy Out & Disability RetirementBenefit to Employer = $60,000 •50% of 1 Year 4850 Benefits = ($120,000)•Savings of Health Benefits 1 Year ($30,000)•No Overtime Costs & Ability to Permanently Fill Opening

Cost to JPA = $60,000•50% of Total Temporary Disability for 1 Year @ $1,010.50/Wk

Benefit to Injured Worker = $180,000•1 Year Pension @ 90% x $120,000 = $108,000 (50% Tax Free)•50% Buy Out 4850 = $60,000•Loss Of Health Benefits Unless Offered Through Retirement

Questions……How does this Settlement Affect the JPA? •Who Pays What?

•JPA vs. Member•Who Has the Authority to Make This Type of Settlement?

•If the Settlement Benefits the Employer (Member) and Adversely Affects the JPA

•Who Decides?•Who Pays?•How is Risk Dispersed Among Other Pool Members?

Thank You For Your Attention & Participation!