Certain public safety personnel, such as permanent paid fire department members or permanent members of a police department, can be presumed to have suffered certain conditions in the line of duty. You had to have successfully passed a physical examination when you entered service that did not reveal the condition.
Added to the retirement law in 1962, G.L. c. 32, s. 94A establishes a rebuttable presumption that, in the case of certain eligible public employees, any condition or impairment of health caused by any disease of the lungs or respiratory tract is service connected unless the contrary is shown by competent medical evidence.
In your analysis of this case please consider:
Is there evidence that the lung disease is not service connected?
Questions on the Certificate for Accidental Disability (Lung) deal with this important issue. The Lung Law Presumption attributes any disease of the lungs or respiratory tract to the individual’s employment unless the contrary is shown by competent evidence.
As indicated on the form, these non-service connected factors may be uniquely predominant influences on the mental or physical health, or may be accidents or hazards undergone that are not job-related.
Deciding whether a condition was non-job related
Is there evidence that, although not irrebuttable, so predominates as to obligate a fact finder to come to the conclusion that for this particular applicant the lung disease is caused by non-job related factors that are the basis for your answers to the Questions on the Certificate?
In dealing with this question, you must focus on three areas:
- The condition of the applicant
- Other factors which could have caused the disability
- The presumption
It is the responsibility of the medical panel to define, characterize and when possible quantify (e.g., compare to the average risk or provide a relative risk) influences that are uniquely predominant in their impact on the development of this condition. Keep in mind that the mere existence of evidence that the lung disease is not service connected does not alone cause the presumption to disappear completely. Sufficient evidence to overcome the presumption might include:
- A confirmed inherited defect that results in an early or unusual presentation, e.g., alpha one antitrypsin deficiency and early COPD (Chronic Obstructive Pulmonary Disease) without significant confounding service exposures
- Non-work related pathology via infection, e.g., pneumocystis carinii in an individual with a non-service connected immune system compromise
- An exposure outside of work that results in a condition clearly defined as directly related to that exposure and nothing else, e.g., reactive airways dysfunction syndrome from high chlorine gas exposure while cleaning an enclosed pool filter outside of work.
If you find that, for this particular applicant, there is evidence that, although not irrebuttable, so predominates as to obligate a fact finder to come to the conclusion that the applicant’s condition is caused by factors unrelated to his or her employment, then the presumption is overcome. If you make that determination, then your answer to Question 3 on the Certificate for Accidental Disability (LUNG) is NO. Otherwise, the answer to Question 3 on the Certificate for Accidental Disability (LUNG) is YES.