Benefits and Burdens of Public Safety Claims & Innovative Settlement Solutions

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 Presumption • Initial 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 Continued • Applicant 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 Continued • Impact 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 Presumption • Initial 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 Continued • Discovery Considerations (AME vs. QME): • Mitigation of Permanent Disability Exposure • Application of Reverse Almarez/Guzman • Expert Opinion on DFEC

Gun Belt/Low Back Presumption • Initial 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 Retirement • Injury 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 Retirement • Benefit 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!

Benefits and Burdens of Public Safety Claims & Innovative Settlement Solutions