Presumptive Disability Law in Nebraska

Presumptive Health Initiative

CODE PART:
Nebraska Revised Statutes – http://nebraskalegislature.gov/laws/browse-statutes.php
Chapter 35 Fire Companies and Fire Fighters
Section 35-1001 Death or disability as a result of cancer; prima facie evidence.
Chapter 18 Cities and Villages; Laws Applicable to All
Section 18-1723. Firefighter; police officer; presumption of death or disability; rebuttable.
Section 48 Labor
Section 48-101.01 Mental injuries and mental illness; first responder; compensation; when.
Firefighter Cancer Benefits Act

Nebraska Legislative Website

DESCRIPTION:
35-1001. Death or disability as a result of cancer; death or disability as a result of certain diseases;
prima facie evidence.

For a firefighter or firefighter-paramedic who is a member of a paid fire department of a municipality or a rural or suburban fire protection district in this state, including a municipality having a home rule charter or a municipal authority created pursuant to a home rule charter that has its own paid fire department, and who suffers death or disability as a result of cancer, including, but not limited to, cancer affecting the skin or the central nervous, lymphatic, digestive, hematological, urinary, skeletal, oral, or prostate systems, evidence which demonstrates that (a) such firefighter or firefighter-paramedic successfully passed a physical examination upon entry into such service or subsequent to such entry, which examination failed to reveal any evidence of cancer, (b) such firefighter or firefighter-paramedic was exposed to a known carcinogen, as defined on July 19, 1996, by the International Agency for Research on Cancer, while in the service of the fire department, and (c) such carcinogen is reported by the agency to be a suspected or known cause of the type of cancer the firefighter or firefighter-paramedic has, shall be prima facie evidence that such death or disability resulted from injuries, accident, or other cause while in the line of duty for the purposes of sections 16-1020 to 16-1042, a firefighter’s pension plan established pursuant to a home rule charter, and a firefighter’s pension or disability plan established by a rural or suburban fire protection district.
For a firefighter or firefighter-paramedic who is a member of a paid fire department of a municipality or a rural or suburban fire protection district in this state, including a municipality having a home rule charter or a municipal authority created pursuant to a home rule charter that has its own paid fire department, and who suffers death or disability as a result of a blood-borne infectious disease, tuberculosis, meningococcal meningitis, or methicillin-resistant Staphylococcus aureus, evidence which demonstrates that (a) such firefighter or firefighter-paramedic successfully passed a physical examination upon entry into such service or subsequent to such entry, which examination failed to reveal any evidence of such blood-borne infectious disease, tuberculosis, meningococcal meningitis, or methicillin-resistant Staphylococcus aureus, and (b) such firefighter or firefighter-paramedic has engaged in the service of the fire department within ten years before the onset of the disease, shall be prima facie evidence that such death or disability resulted from injuries, accident, or other cause while in the line of duty for the purposes of sections 16-1020 to 16-1042, a firefighter’s pension plan established pursuant to a home rule charter, and a firefighter’s pension or disability plan established by a rural or suburban fire protection district.
The prima facie evidence presumed under this section shall extend to death or disability as a result of cancer as described in this section, a blood-borne infectious disease, tuberculosis, meningococcal meningitis, or methicillin-resistant Staphylococcus aureus after the firefighter or firefighter-paramedic separates from his or her service to the fire department if the death or disability occurs within three months after such separation.
For purposes of this section, blood-borne infectious disease means human immunodeficiency virus, acquired immunodeficiency syndrome, and all strains of hepatitis.

18-1723. Firefighter; police officer; presumption of death or disability; rebuttable.

Whenever any firefighter who has served a total of five years as a member of a paid fire department of any city in this state or any police officer of any city or village, including any city having a home rule charter, shall suffer death or disability as a result of hypertension or heart or respiratory defect or disease, there shall be a rebuttable presumption that such death or disability resulted from accident or other cause while in the line of duty for all purposes of Chapter 15, article 10, sections 16-1001 to 16-1042, and any firefighter’s or police officer’s pension plan established pursuant to any home rule charter, the Legislature specifically finding the subject of this section to be a matter of general statewide concern. The rebuttable presumption shall apply to death or disability as a result of hypertension or heart or respiratory defect or disease after the firefighter or police officer separates from his or her applicable employment if the death or disability occurs within three months after such separation. Such rebuttable presumption shall apply in any action or proceeding arising out of death or disability incurred prior to December 25, 1969, and which has not been processed to final administrative or judicial conclusion prior to such date.

48-101.01 Mental injuries and mental illness; first responder; compensation; when.

Personal injury includes mental injuries and mental illness unaccompanied by physical injury for an employee who is a first responder if such first responder:
1. Establishes, by a preponderance of the evidence, that the employee’s employment conditions causing the mental injury or mental illness were extraordinary and unusual in comparison to the normal conditions of the particular employment; and
2. Establishes, by a preponderance of the evidence, the medical causation between the mental injury or mental illness and the employment conditions by medical evidence.
For purposes of this section, mental injuries and mental illness arising out of and in the course of employment unaccompanied by physical injury are not considered compensable if they result from any event or series of events which are incidental to normal employer and employee relations, including, but not limited to, personnel actions by the employer such as disciplinary actions, work evaluations, transfers, promotions, demotions, salary reviews, or terminations.
For purposes of this section, first responder means a sheriff, a deputy sheriff, a police officer, an officer of the Nebraska State Patrol, a volunteer or paid firefighter, or a volunteer or paid individual licensed under a licensure classification in subdivision (1) of section 38-1217 who provides immediate medical care in order to prevent loss of life or aggravation of physiological or psychological illness or injury.

Firefighter Cancer Benefits Act

Section 1. Sections 1 to 9 of this act shall be known and may be cited as the Firefighter Cancer Benefits Act.

Sec. 2. For purposes of the Firefighter Cancer Benefits Act:

(1) Cancer means:

(a) A disease (i) caused by an uncontrolled division of abnormal cells in a part of the body or a malignant growth or tumor resulting from the division of abnormal cells and (ii) affecting the prostate, breast, or lung or the lymphatic, hematological, digestive, urinary, neurological, or reproductive system; or

(b) Melanoma; and

(2) Firefighter means:

(a) A firefighter or firefighter-paramedic who is a member of a paid fire department of a municipality or a rural or suburban fire protection district in this state, including a municipality having a home rule charter or a municipal authority created pursuant to a home rule charter that has its own paid fire department;

(b) A firefighter or firefighter-paramedic who is a member of a paid fire department of an airport authority; or

Sec. 3. Before any firefighter is entitled to benefits under the Firefighter Cancer Benefits Act, such firefighter shall

(1) have successfully passed a physical examination which failed to reveal any evidence of cancer,

(2) have served at least twenty-four consecutive months as a firefighter at any fire station within the State of Nebraska,

(3) have been actively engaged in fire suppression at an actual fire or fire training event, and (4) wear all

available personal protective equipment when fighting any fire, including a self-contained breathing apparatus when fighting structure fires. After serving at least twenty-four consecutive months as a firefighter, the firefighter shall be deemed to be in compliance with subdivision (2) of this section even with a break in service, so long as such break does not exceed six months.

Sec. 4. (1) Beginning on and after the operative date of this section, any rural or suburban fire protection district, airport authority, city, village, or nonprofit corporation may provide and maintain enhanced cancer

benefits. If such benefits are provided, they shall include, at a minimum, the following:

(a) A lump-sum benefit of twenty-five thousand dollars for each diagnosis payable to a firefighter upon acceptable proof to the insurance carrier or other payor of a diagnosis by a board-certified physician in the medical specialty appropriate for the type of cancer diagnosed that there are one or more malignant tumors characterized by the uncontrollable and abnormal growth and spread of malignant cells with invasion of normal tissue, and that either:

(i) There is metastasis and:

(A) Surgery, radiotherapy, or chemotherapy is medically necessary; or

(B) There is a tumor of the prostate, provided that it is treated with radical prostatectomy or external beam therapy; or

(ii) Such firefighter has terminal cancer, his or her life expectancy is twenty-four months or less from the date of diagnosis, and he or she will not benefit from, or has exhausted, curative therapy;

(b) A lump-sum benefit of six thousand two hundred fifty dollars for each diagnosis payable to a firefighter upon acceptable proof to the insurance carrier or other payor of a diagnosis by a board-certified physician in the medical specialty appropriate for the type of cancer involved that either:

(i) There is carcinoma in situ such that surgery, radiotherapy, or chemotherapy has been determined to be medically necessary;

(ii) There are malignant tumors which are treated by endoscopic procedures alone; or

(iii) There are malignant melanomas; and

(c)(i) A monthly benefit of one thousand five hundred dollars payable to a firefighter, of which the first payment shall be made six months after total disability and submission of acceptable proof of such disability to the insurance carrier or other payor that such disability is caused by cancer and that such cancer precludes the firefighter from serving as a firefighter. Such benefit shall continue for up to thirty-six consecutive monthly payments.

(ii) Such monthly benefit shall be subordinate to any other benefit actually paid to the firefighter solely for such disability from any other source, not including private insurance purchased solely by the firefighter, and shall be limited to the difference between the amount of such other pay benefit and the amount specified in this section.

(iii) Any firefighter receiving such monthly benefit may be required to have his or her condition reevaluated. In the event any such reevaluation reveals that such person has regained the ability to perform duties as a firefighter, then his or her monthly benefits shall cease the last day of the month of the reevaluation.

(iv) In the event that there is a subsequent reoccurrence of a disability caused by cancer which precludes the firefighter from serving as a firefighter, he or she shall be entitled to receive any remaining monthly benefits.

(2) A firefighter shall also be entitled to an additional payment of enhanced cancer death benefits in the amount of fifty thousand dollars payable to his or her beneficiary or, if no beneficiary is named, to such firefighter’s estate upon acceptable proof by a board-certified physician that such firefighter’s death resulted from complications associated with cancer.

(3) A firefighter shall be ineligible for benefits under the Firefighter Cancer Benefits Act if he or she is already provided paid firefighter cancer benefits pursuant to section 35-1001.

Sec. 5. The combined total of all benefits received by any firefighter pursuant to subdivisions (1)(a) and (b) of section 4 of this act during his or her lifetime shall not exceed fifty thousand dollars.

Sec. 6. A firefighter shall remain eligible for benefits pursuant to subsections (1) and (2) of section 4 of this act for thirty-six months after the formal cessation of the firefighter’s status as a firefighter. If a

firefighter has a physical examination during the thirty-six months of eligibility that reveals evidence of cancer, the firefighter shall be eligible for benefits under subsections (1) and (2) of section 4 of this act even if such benefits are paid after the thirty-six-month eligibility period ends. The rural or suburban fire protection district, airport authority, city, village, or nonprofit corporation for which such firefighter served shall be responsible for payment of all premiums or other costs associated with benefits that may be

provided under subsections (1) and (2) of section 4 of this act throughout the duration of the firefighter’s coverage.

Sec. 7. A rural or suburban fire protection district, airport authority, city, village, or nonprofit corporation, if it provides benefits pursuant to subsections (1) and (2) of section 4 of this act, shall maintain proof of insurance coverage that meets the requirements of the Firefighter Cancer Benefits Act or shall maintain satisfactory proof of the ability to pay such compensation to ensure adequate coverage for all firefighters. Sufficient documentation of satisfactory proof of the ability to pay such compensation to ensure adequate coverage for all firefighters shall be required and shall comply with rules and regulations adopted and promulgated by the State Fire Marshal. Such coverage shall remain in effect until thirty-six months after the rural or suburban fire protection district, airport authority, city, village, or nonprofit corporation no longer has any firefighters who could qualify for benefits under the act.

Sec. 8. (1) Any rural or suburban fire protection district, airport authority, city, village, or nonprofit corporation that has had a firefighter file a claim for or receive cancer benefits under the Firefighter Cancer Benefits Act shall report such claims filed, claims paid, and types of claims to the State Fire Marshal. On or before December 1, 2023, and on or before December 1 of each year thereafter, the State Fire Marshal shall submit electronically an annual report to the Legislature and Governor stating the number of firefighters who have filed claims pursuant to the act and the number of firefighters who have received benefits under the act.

(2) If the firefighters in a fire department are being provided cancer benefits under the Firefighter Cancer Benefits Act, the fire chief of such fire department, or his or her designee, shall submit an annual report to the governing body of the rural or suburban fire protection district, airport authority, city, or village served by such fire department listing the total number of fire suppression incidents occurring during the most recently completed calendar year. Such report shall be submitted on or before February 15, 2023, and on or before February 15 of each year thereafter.

Sec. 9. The State Fire Marshal may adopt and promulgate rules and regulations necessary to carry out the Firefighter Cancer Benefits Act.