Presumptive Disability Law in New Jersey

CODE PART:

NEW JERSEY PERMANENT STATUTES
TITLE 34 LABOR AND WORKMEN’S COMPENSATION
Chapter 15. Workmen’s Compensation
Article 2. Elective Compensation
34:15-7.3. Worker’s compensation for injury, death occurring while responding to law enforcement, public safety, medical emergency
Article 3. Definitions and General Provisions
34:15-36 – Definitions
34:15-31.8 Injury, illness, death of firefighter caused by cancer eligible for compensation.
34:15-43.2. Volunteer fire department members; respiratory diseases; presumption of occupational disease
*Lindquist v. City of Jersey City Fire Department
34:15-43.3. Time of development or first manifestation of respiratory disease
34:15-43.4. Maximum benefits for volunteers

New Jersey Legislative Website

DESCRIPTION:

34:15-7.3. Worker’s compensation for injury, death occurring while responding to law enforcement, public safety, medical emergency
a. For any cardiovascular or cerebrovascular injury or death which occurs to an individual covered by subsection b. of this section while that individual is engaged in a response to an emergency, there shall be a rebuttable presumption that the injury or death is compensable under R.S. 34:15-1 et seq., if that injury or death occurs while the individual is responding, under orders from competent authority, to a law enforcement, public safety or medical emergency as defined in subsection c. of this section.

b. This section shall apply to:
(1) Any permanent or temporary member of a paid or part-paid fire or police department and force;
(2) Any member of a volunteer fire company;
(3) Any member of a volunteer first aid or rescue squad; and
(4) Any special, reserve, or auxiliary policeman doing volunteer duty.
c. As used in this section, “law enforcement, public safety or medical emergency” means any combination of circumstances requiring immediate action to prevent the loss of human life, the destruction of property, or the violation of the criminal laws of this State or its political subdivisions, and includes, but is not limited to, the suppression of a fire, a firemanic drill, the apprehension of a criminal, or medical and rescue service.

34:15-36 – Definitions

“Hazardous chemicals or materials used in, or related to, chemical warfare” means chemicals and materials which may be used in chemical warfare, including, but not limited to, nerve agents, chemical asphyxiates, choking agents, blister agents, incapacitating agents, explosives, and includes other toxic, carcinogenic or otherwise hazardous industrial chemicals and materials to which public safety workers and members of the public may be exposed in connection with possible terrorist attacks against military, governmental, industrial, infrastructural, and other vulnerable facilities.
“Known carcinogen” means a substance which is known, or generally accepted by the scientific community to cause cancer in humans, as identified1 by the State Department of Health or by the International Agency for Research on Cancer.
“Pathogens or biological toxins used in, or related to, biological warfare or epidemics” means serious communicable diseases, pathogens not necessarily transmitted by sick or infected individuals, such as anthrax, and biological toxins, such as ricin, whether or not in weaponized form.
“Public safety worker” includes a member, employee, or officer of a paid, partially-paid, or volunteer fire or police department, force, company or district, including the State Police, a Community Emergency Response Team approved by the New Jersey Office of Emergency Management, or a correctional facility, or a basic or advanced medical technician of a first aid or rescue squad, or any other nurse, basic or advanced medical technician responding to a catastrophic incident and directly involved and in contact with the public during such an incident, either as a volunteer, member of a Community Emergency Response Team or employed or directed by a health care facility.
“Serious communicable disease” means any disease which is characterized by the interruption, cessation or disorder of body functions, systems or organs which may result, if not treated, in disability, chronic illness or death, and is transmittable by association with, or proximity to, sick, infected or colonized individuals, including airborne transmission, or is transmittable by contact with their bodily fluids, secretions or excretions. “Serious communicable disease” includes, but is not limited to, meningitis, tuberculosis, viral hepatitis, human immunodeficiency virus infections, acquired immunodeficiency syndrome, cholera, hemorrhagic fever, plague, smallpox, or other disease identified as a serious communicable disease by the Department of Health, and also includes diseases caused by antibiotic resistant organisms.

34:15-31.8 Injury, illness, death of firefighter caused by cancer eligible for compensation.
7. Any injury, illness or death of a firefighter which may be caused by cancer , including leukemia, shall be presumed to be an occupational disease compensable under the provisions of R.S.34:15-1 et seq., if the firefighter has completed not less than seven years of service as a firefighter , regardless of whether the firefighter is in active service or is no longer in active service of a paid, part-paid, or volunteer fire department at the time of the injury, illness or death, provided that the firefighter is not more than 75 years of age or has not been out of active service for more than 20 years. This prima facie presumption may be rebutted by a preponderance of the evidence that the occupational disease did not arise out of and in the course of the employment. The employer may require the firefighter to undergo, at the expense of the employer, reasonable testing, evaluation and monitoring of health conditions of the firefighter which is relevant to determining whether the occupational disease arose out of and in the course of the employment, but the presumption of compensability shall not be adversely affected by any failure of the employer to require such testing, evaluation or monitoring. In order to receive this occupational cancer disability benefit, the type of cancer involved shall be a type which may be caused by exposure to heat, radiation, or a known or suspected carcinogen as defined by the International Agency for Research on Cancer . A firefighter with less than seven years of service as a firefighter who experiences injury, illness or death which may be caused by exposure to a known carcinogen, cancer -causing radiation or a radioactive substance, including cancer and damage to reproductive organs, shall be subject to the provisions of section 6 of this act.

*34:15-43.2. Volunteer fire department members; respiratory diseases; presumption of occupational disease
Any condition or impairment of health of any member of a volunteer fire department caused by any disease of the respiratory system shall be held and presumed to be an occupational disease unless the contrary be made to appear in rebuttal by satisfactory proof; providing
(a) Such disease develops or first manifests itself during a period while such member is an active member of such department; and
(b) Said member, upon entering said volunteer fire service, has or shall have undergone a medical examination, which examination failed or fails to disclose the presence of such disease or diseases; and
(c) Such disease develops or first manifests itself within 90 days from the event medically determined to be the cause thereof.
Any present member who did not undergo a medical examination upon entering said volunteer fire service, may undergo such examination within 180 days after the effective date of this act and in the event such examination does not disclose the presence of such disease or diseases, he shall thereafter be entitled to the benefits of this act.
L.1964, c. 291, s. 1. Amended by L.1965, c. 65, s. 1.

*NJ Supreme Court, Lindquist v. City of Jersey City Fire Department, 175 N.J. 244 (2003), Decided February 11, 2003
“The firefighters’ presumption provision of the Act provides that any condition or impairment of health of any member of a volunteer fire department caused by disease of the respiratory system shall be presumed to be an occupational disease unless rebutted by satisfactory proof. The Court can find no plausible reason why the Legislature would have intended to treat differently voluntary and paid firefighters who sustain the same pulmonary conditions after fighting the same fires. Therefore, the rebuttable statutory presumption of compensability also applies to paid firefighters. Numerous states provide a similar presumption. (Pp. 25-29)”

34:15-43.3. Time of development or first manifestation of respiratory disease
For the purposes herein expressed, the time of development or first manifestation of such disease or diseases shall only be determined by and run from the date of first notice of the existence of such disease or diseases to such member by a physician, or the date of death as a result of such disease or diseases.
L.1964, c. 291, s. 2.

34:15-43.4. Maximum benefits for volunteers
A person participating under the supervision of the Palisades Interstate Park Commission, in a volunteer program in that part of the Palisades Interstate Park located in New Jersey, who is deemed to be an employee of this State under R.S. 32:14-4 for the purpose of receiving workers’ compensation coverage, is eligible for compensation for injury or death, or both, under chapter 15 of Title 34 of the Revised Statutes, based upon a weekly salary or compensation conclusively presumed to be received by this person in an amount sufficient to entitle him, or, in the event of his death, his dependents, to receive the maximum compensation available under chapter 15 of Title 34 of the Revised Statutes.

34:15-31.8 Injury, illness, death of firefighter caused by cancer eligible for compensation.
7. Any injury, illness or death of a firefighter which may be caused by cancer , including leukemia, shall be presumed to be an occupational disease compensable under the provisions of R.S.34:15-1 et seq., if the firefighter has completed not less than seven years of service as a firefighter, regardless of whether the firefighter is in active service or is no longer in active service of a paid, part-paid, or volunteer fire department at the time of the injury, illness or death, provided that the firefighter is not more than 75 years of age or has not been out of active service for more than 20 years. This prima facie presumption may be rebutted by a preponderance of the evidence that the occupational disease did not arise out of and in the course of the employment. The employer may require the firefighter to undergo, at the expense of the employer, reasonable testing, evaluation and monitoring of health conditions of the firefighter which is relevant to determining whether the occupational disease arose out of and in the course of the employment, but the presumption of compensability shall not be adversely affected by any failure of the employer to require such testing, evaluation or monitoring. In order to receive this occupational cancer disability benefit, the type of cancer involved shall be a type which may be caused by exposure to heat, radiation, or a known or suspected carcinogen as defined by the International Agency for Research on Cancer . A firefighter with less than seven years of service as a firefighter who experiences injury, illness or death which may be caused by exposure to a known carcinogen, cancer -causing radiation or a radioactive substance, including cancer and damage to reproductive organs, shall be subject to the provisions of section 6 of this act.

II. Any injury, illness or death of any public safety worker, resulting from the administration to the worker of a vaccine including, but not limited to, smallpox vaccine, to prepare for, or respond to, any actual, threatened, or potential bioterrorism or epidemic, as part of an inoculation program in connection with the worker’s employment or in connection with any governmental program or recommendation for the inoculation of workers in the worker’s occupation, geographical area, or other category that includes the worker, or resulting from the transmission of disease from another employee or member of the public inoculated under the program, is presumed to arise out of and in the course of the employment and all care or treatment of the worker, including testing, diagnosis, surveillance and monitoring of the worker’s condition, and all time during which the worker is unable to work while receiving the care or treatment, is compensable under the provisions of R.S.34:15-1 et seq. This section shall not be regarded as authorizing any requirement that employees participate in an inoculation program or as diminishing any requirement of law that an inoculation program be voluntary. This prima facie presumption may be rebutted by a preponderance of the evidence showing that the administration of the vaccine is not linked to the injury, illness or death. The employer may require the worker to undergo, at the expense of the employer, reasonable testing, evaluation and monitoring of health conditions of the worker which is relevant to determining whether the administration of the vaccine is linked to the occurrence, but the presumption of compensability shall not be adversely affected by any failure of the employer to require such testing, evaluation or monitoring.

III. Any injury, illness or death of a public safety worker which may be caused by exposure to a known carcinogen, cancer-causing radiation or a radioactive substance, including cancer and damage to reproductive organs, shall be presumed to be compensable under the provisions of R.S.34:15-1 et seq., if the worker demonstrates that he was exposed, due to fire, explosion, spill or other means, to a known carcinogen, cancer-causing radiation or radioactive substances in the course of the worker’s employment as a public safety worker and demonstrates that the injury, illness or death has manifested during his or her employment as a public safety worker. This prima facie presumption may be rebutted by a preponderance of the evidence that the exposure is not linked to the injury, illness or death. The employer of the public safety worker may require the worker to undergo, at the expense of the employer, reasonable testing, evaluation and monitoring of health conditions of the worker which is relevant to determining whether the exposure is linked to the occurrence, but the presumption of compensability shall not be adversely affected by any failure of the employer to require such testing, evaluation or monitoring. The employer shall maintain records regarding any instance in which any public safety worker in its employ was deployed to a facility or location where the presence of one or more substances which are known carcinogens is indicated in documents provided to local fire or police departments pursuant to the requirements of section 7 of P.L.1983, c.315 (C.34:5A-7) and where fire, explosions, spills or other events
occurred which could result in exposure to those carcinogens. The records shall include the identity of each deployed public safety worker and each worker shall be provided notice of the records.

IV. Any injury, illness or death of a firefighter which may be caused by cancer, including leukemia, shall be presumed to be an occupational disease compensable under the provisions of R.S.34:15-1 et seq., if the firefighter has completed not less than seven years of service as a firefighter, regardless of whether the firefighter is in active service or is no longer in active service of a paid, part-paid, or volunteer fire department at the time of the injury, illness or death, provided that the firefighter is not more than 75 years of age or has not been out of active service for more than 20 years. This prima facie presumption may be rebutted by a preponderance of the evidence that the occupational disease did not arise out of and in the course of the employment. The employer may require the firefighter to undergo, at the expense of the employer, reasonable testing, evaluation and monitoring of health conditions of the firefighter which is relevant to determining whether the occupational disease arose out of and in the course of the employment, but the presumption of compensability shall not be adversely affected by any failure of the employer to require such testing, evaluation or monitoring. In order to receive this occupational cancer disability benefit, the type of cancer involved shall be a type which may be caused by exposure to heat, radiation, or a known or suspected carcinogen as defined by the International Agency for Research on Cancer. A firefighter with less than seven years of service as a firefighter who experiences injury, illness or death which may be caused by exposure to a known carcinogen, cancer-causing radiation or a radioactive substance, including cancer and damage to reproductive organs, shall be subject to the provisions of section 6 of this act.

V. This act is intended to affirm certain rights of public safety workers and other employees under the circumstances specified in this act with respect to compensation provided pursuant to R.S.34:15-1 et seq. and shall not be construed as reducing, limiting or curtailing any rights of any other worker or employee to compensation pursuant to R.S.34:15-1 et seq. or of any worker with respect to any claim for compensation pursuant to R.S.34:15-1 et seq., including a claim initiated prior to the effective date of this act.

VI. On the first day of the 18th month following the date of enactment of P.L. , c. (C. ) (pending before the Legislature as this bill) and annually on the anniversary of the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill), the Commissioner of the Department of Labor and Workforce Development shall, pursuant to section 2 of P.L.1991, c.164 (C.52:14-19.1) and in a manner consistent with section 1 of P.L.1966, c.164 (C.34:15-128), submit to the Legislature, a report containing available information regarding:
a. The number of claim petitions with respect to which a determination was rendered by the Division of Workers’ Compensation during the previous calendar year that an injury or illness enumerated within Sections 4 through 7 of P.L. , c. (C. ) (pending before the Legislature as this bill) is compensable; and
b. The total amount of workers’ compensation benefits awarded by the Division of Workers’ Compensation for the claim petitions counted under subsection a. of this section, including
medical benefits, temporary total disability benefits, permanent partial benefits, and permanent total benefits.

VII. This act shall take effect immediately.