Presumptive Disability Law in Maine

Presumptive Health Initiative

CODE PART:
Maine Revised Statutes
Title 39-A: WORKERS’ COMPENSATION
Chapter 7: PROCEDURES

Maine Legislative Website

DESCRIPTION:
Sec. 328.
Cardiovascular injury or disease and pulmonary disease suffered by a firefighter or resulting in a firefighter’s death

Cardiovascular injury or disease and pulmonary disease suffered by a firefighter or resulting in a firefighter’s death are governed by this section.

  1. Firefighter defined. For the purposes of this section, “firefighter” means an active member of a municipal fire department or of a volunteer firefighters association if that person is a member of a municipal fire department or volunteer firefighters association and if that person aids in the extinguishment of fires, regardless of whether or not that person has administrative duties or other duties as a member of the municipal fire department or volunteer firefighters association.
  2. Presumption. There is a rebuttable presumption that a firefighter received the injury or contracted the disease arising out of and in the course of employment, that sufficient notice of the injury or disease has been given and that the injury or disease was not occasioned by the willful intention of the firefighter to cause self-injury or injury to another if the firefighter has been an active member of a municipal fire department or a volunteer firefighters association, as defined in Title 30-A, section 3151, for at least 2 years prior to a cardiovascular injury or the onset of a cardiovascular disease or pulmonary disease and if:
    1. The disease has developed or the injury has occurred within 6 months of having participated in fire fighting, or training or drill that actually involves fire fighting; or
    2. The firefighter had developed the disease or had suffered the injury that resulted in death within 6 months of having participated in fire fighting, or training or drill that actually involved fire fighting.

Sec. 328-A.
Communicable disease contracted by emergency rescue or public safety worker

  1. Definitions. As used in this section, unless the context otherwise indicates, the following terms have the following meanings.
    1. “Body fluids” means blood and body fluids containing visible blood and other potentially infectious materials, as defined in a regulation of the Occupational Safety and Health Administration, 29 Code of Federal Regulations, 1910.1030 (2001). For purposes of potential transmission of meningococcal meningitis or tuberculosis, “body fluids” includes respiratory, salivary and sinus fluids, including droplets, sputum and saliva, mucus and other fluids through which infectious airborne organisms can be transmitted between persons.
    2. “Corrections officer” has the same meaning as in Title 25, section 2801-A, subsection 2.
    3. “Emergency medical services person” means a person licensed as an emergency medical services person under Title 32, chapter 2-B who is employed by, or provides voluntary service to, an ambulance service as defined in Title 32, section 83 or a nontransporting emergency medical service as defined in Title 32, section 83.
    4. “Emergency rescue or public safety worker” means a person who:
      1. Is a firefighter, emergency medical services person, law enforcement officer or corrections officer; and
      2. In the course of employment, runs a high risk of occupational exposure to hepatitis, meningococcal meningitis or tuberculosis.
    5. “Employer” includes an entity for which a person provides volunteer services.
    6. “Firefighter” means an active member of a municipal fire department or a volunteer fire association as defined in Title 30-A, section 3151.
    7. “Hepatitis” means hepatitis A, hepatitis B, hepatitis C or any other strain of hepatitis generally recognized by the medical community.
    8. “High risk of occupational exposure” means a risk that is incurred because a person subject to the provisions of this section, in performing the basic duties associated with that person’s employment:
      1. Provides emergency medical treatment in a nonhealth-care setting where there is a potential for the transfer of body fluids between persons;
      2. At the site of an accident, fire or other rescue or public safety operation, or in an emergency rescue or public safety vehicle, handles body fluids in or out of containers or works with or otherwise handles needles or other sharp instruments exposed to body fluids;
      3. Engages in the pursuit, apprehension and arrest of persons suspected of violating the law and, in performing such duties, risks exposure to body fluids; or
      4. Is responsible for the custody and physical restraint, when necessary, of prisoners or inmates within a prison, jail or other criminal detention facility or while on work detail outside the facility or while being transported and, in performing such a duty, risks exposure to body fluids.
    9. “Law enforcement officer” has the same meaning as in Title 25, section 2801-A, subsection 5.
    10. “Occupational exposure,” in the case of hepatitis, meningococcal meningitis or tuberculosis, means an exposure that occurs during the performance of job duties that may place a worker at risk of infection.
  2. Presumption. There is a rebuttable presumption that an emergency rescue or public safety worker who contracts hepatitis, meningococcal meningitis or tuberculosis has a disease arising out of and in the course of employment, that sufficient notice of the disease has been given and that the disease was not occasioned by the willful intention of the emergency rescue or public safety worker to cause self-injury or injury to another if the emergency rescue or public safety worker complies with the requirements of subsections 3 to 5.
  3. Written verification. In order to qualify for the presumption set forth in subsection 2, an emergency rescue or public safety worker must sign a written affidavit declaring that, to the best of the person’s knowledge and belief:
    1. In the case of a medical condition caused by hepatitis, the person has not:
      1. Been exposed, through transfer of body fluids, to any person known to have sickness or medical conditions derived from hepatitis outside the scope of the person’s employment as an emergency rescue or public safety worker;
      2. Had a transfusion of blood or blood components, other than a transfusion arising out of an accident or injury happening in connection with the person’s employment as an emergency rescue or public safety worker, or received any blood products for the treatment of a coagulation disorder;
      3. Engaged in unsafe sexual practices or other high-risk behavior, as identified by the Centers for Disease Control and Prevention or the Surgeon General of the United States, or had sexual relations with a person known by the emergency rescue or public safety worker to have engaged in such unsafe sexual practices or other high-risk behavior; or
      4. Used intravenous drugs not prescribed by a physician.
    2. In the case of meningococcal meningitis, in the 10 days immediately preceding diagnosis the person was not exposed outside the scope of the person’s employment as an emergency rescue or public safety worker to any person known to have meningococcal meningitis or known to be an asymptomatic carrier of the disease.
    3. In the case of tuberculosis, the person has not been exposed, outside the scope of the person’s employment as an emergency rescue or public safety worker, to any person known by the emergency rescue or public safety worker to have tuberculosis.
      A person who has tested negative for hepatitis or tuberculosis at the time of employment or during employment as an emergency rescue or public safety worker may satisfy the affidavit requirement in paragraph A, subparagraph (2) or paragraph C by making the required declaration with respect to the period of time since the person’s last negative test for hepatitis or tuberculosis, respectively.
  4. Required medical tests; preemployment physical. In order to be entitled to the presumption set forth in subsection 2:
    1. An emergency rescue or public safety worker, at the time of or during employment as an emergency rescue or public safety worker and prior to diagnosis, must have undergone standard, medically acceptable tests for evidence of the disease for which the presumption is sought or evidence of the medical conditions derived from the disease, which tests failed to indicate the presence of infection. This paragraph does not apply in the case of meningococcal meningitis and does not apply to an emergency rescue or public safety worker employed or serving in that capacity on the effective date of this section; and
    2. On or after the effective date of this section, the emergency rescue or public safety worker has undergone a preemployment physical examination that tested for and failed to reveal any evidence of hepatitis or tuberculosis if the person’s employer requires such preemployment physical examination and tests.
  5. Immunization. Whenever any standard, medically recognized vaccine or other form of immunization or other prophylaxis exists for the prevention of a communicable disease for which a presumption is granted under this section, if medically indicated in the given circumstances pursuant to immunization policies established by the Advisory Committee on Immunization Practices for the Centers for Disease Control and Prevention, an emergency rescue or public safety worker may be required by the worker’s employer to undergo the immunization or other prophylaxis unless the worker’s physician determines in writing that the immunization or other prophylaxis would pose a significant risk to the worker’s health. Absent such written declaration, failure or refusal by an emergency rescue or public safety worker to undergo such immunization or other prophylaxis disqualifies the worker from the benefits of the presumption.
  6. Record of exposures. To the extent required by any state or federal law or regulation:
    1. An employer shall maintain a record of any known or reasonably suspected exposure of an emergency rescue or public safety worker in its employ to the diseases described in this section and shall immediately notify the employee of that exposure; and
    2. An emergency rescue or public safety worker shall file an incident or accident report with the worker’s employer of each instance of known or suspected occupational exposure to hepatitis, meningococcal meningitis or tuberculosis.
  7. Liability if services performed for more than one employer. If an emergency rescue or public safety worker was employed by more than one employer, the employer in whose employ the person was last injuriously exposed to the risk of the disease contracted and the insurer on the risk at the time of that last exposure, if any, are the only entities liable for the disease.
  8. Effect of presumption on life and disability insurance coverage. The presumption set forth in subsection 2 does not apply in determining eligibility for life or disability benefits unless otherwise provided in the insurance contract.
  9. Effect of presumption on disability retirement. The presumption set forth in subsection 2 is effective for purposes of determining whether a disability is work-related for purposes of determining eligibility for disability retirement in the Maine Public Employees Retirement System. This presumption does not affect any eligibility requirement other than the requirement that the disability be work-related.

Sec. 328-B.
Cancer suffered by a firefighter

Cancer suffered by a firefighter is governed by this section.

  1. Definitions. As used in this section, unless the context otherwise indicates, the following terms have the following meanings.
    1. “Cancer” means kidney cancer, non-Hodgkin’s lymphoma, colon cancer, leukemia, brain cancer, bladder cancer, multiple myeloma, prostate cancer, testicular cancer, breast cancer or gynecologic cancer.
    2. “Employed” means to be employed as an active duty firefighter by the Office of the State Fire Marshal or by the forest protection unit within the Department of Agriculture, Conservation and Forestry, Bureau of Forestry or to be an active member of a volunteer fire association with no compensation other than injury and death benefits.
    3. “Firefighter” means a member of a municipal fire department or volunteer fire association whose duties include the extinguishment of fires, an investigator or sergeant in the Office of the State Fire Marshal or an employee in the forest protection unit within the Department of Agriculture, Conservation and Forestry, Bureau of Forestry whose duties include the extinguishment or investigation of fires.
  2. Presumption. If a firefighter who contracts cancer has met the requirements of subsection 3, 6 and 7 there is a rebuttable presumption that the firefighter contracted the disease arising out of and in the course of employment as a firefighter, that sufficient notice of the disease has been given and that the disease was not occasioned by the willful intention of the firefighter to cause the disease.
  3. Medical tests. In order to be entitled to the presumption in subsection 2, during the time of employment as a firefighter the firefighter must have undergone a standard, medically acceptable test for evidence of the cancer for which the presumption is sought or evidence of the medical conditions derived from the disease, which test failed to indicate the presence or condition of cancer. This subsection does not apply to a firefighter who is employed on the effective date of this section.
  4. Liability if services performed for more than one employer. If a firefighter who contracts cancer and qualifies for the presumption under subsection 2 was employed by more than one employer, the employer of the firefighter and the insurer of that employer at the time of the last exposure to the risk of the cancer are the only persons liable under this Part.
  5. Retired firefighter. This section applies to a firefighter who is diagnosed with cancer within 10 years of the firefighter’s last active employment as a firefighter or prior to attaining 70 years of age, whichever occurs first.
  6. Length of service. In order to qualify for the presumption under subsection 2, the firefighter must have been employed as a firefighter for 5 years and, except for an investigator or sergeant in the Office of the State Fire Marshal or an employee in the forest protection unit within the Department of Agriculture, Conservation and Forestry, Bureau of Forestry, regularly responded to firefighting or emergency calls.
  7. Written verification. In order to qualify for the presumption under subsection 2, a firefighter must sign a written affidavit declaring, to the best of the firefighter’s knowledge and belief, that the firefighter’s diagnosed cancer is not prevalent among the firefighter’s blood-related parents, grandparents or siblings and that the firefighter has no substantial lifetime exposures to carcinogens that are associated with the firefighter’s diagnosed cancer other than exposure through firefighting.
  8. Safety equipment for investigators and sergeants in the Office of the State Fire Marshal. In order to qualify for the presumption under subsection 2, an investigator or sergeant in the Office of the State Fire Marshal must represent that the investigator or sergeant used protective equipment in compliance with the policies of the Office of the State Fire Marshal in effect during the course of the investigator’s or sergeant’s employment.

Sec. 201. Entitlement to compensation and services generally

Sec. 201, sub-section 3-A. Mental injury caused by mental stress. Mental injury resulting from work-related stress does not arise out of and in the course of employment unless:

  1. It is demonstrated by clear and convincing evidence that:
    1. The work stress was extraordinary and unusual in comparison to pressures and tensions experienced by the average employee; and
    2. The work stress, and not some other source of stress, was the predominant cause of the mental injury.

    The amount of work stress must be measured by objective standards and actual events rather than any misperceptions by the employee; or

  2. The employee is a law enforcement officer, firefighter, corrections officer or emergency medical services worker and is diagnosed by an allopathic physician or an osteopathic physician licensed under Title 32, chapter 48 or chapter 36, respectively, with a specialization in psychiatry or a psychologist licensed under Title 32, chapter 56 as having post-traumatic stress disorder, in which case the post-traumatic stress disorder is presumed to have arisen out of and in the course of the worker’s employment. This presumption may be rebutted by clear and convincing evidence to the contrary. For purposes of this paragraph, “law enforcement officer,” “firefighter,” “corrections officer” and “emergency medical services worker” have the same meaning as in section 328-A, subsection 1.A mental injury is not considered to arise out of and in the course of employment if it results from any disciplinary action, work evaluation, job transfer, layoff, demotion, termination or any similar action, taken in good faith by the employer.