In 1976 Virginia made a new law entitled “Presumption as to Death or Disability from Respiratory Disease, Hypertension or Heart Disease, Cancer.” This statute, which is found at Section 65.2-402 of the Code of Virginia, is often referred to as the Virginia Heart and Lung Act even though it covers more than heart and lung injuries and diseases.
The Heart and Lung Act establishes several disease presumptions for public safety workers such as police officers, firefighters, and emergency first responders. This means that Virginia workers compensation law presumes there is a causal connection between certain occupations and certain diseases.
The purpose of this article is to discuss the Heart and Lung Act in Virginia – what disease presumptions are available, who may qualify for workers comp benefits under these presumptions, and how to win your claim under the Heart and Lung Bill.
Keep reading to learn more.
And if you are a police officer, firefighter, or EMT who has been diagnosed with hypertension, cardiovascular disease, or a respiratory illness, feel free to call me for help navigating the workers comp claims process: (804) 251-1620 or (757) 810-5614. I’ve helped many of your colleagues obtain workers comp payments and settlements. And I’m ready to get results for you.
Usually you have the burden of proof when seeking workers compensation benefits, including temporary total disability, temporary partial disability, permanent partial disability, or lifetime medical coverage, for an on-the-job injury or occupational disease. That means you must present evidence to the Workers Compensation Commission showing that your employment caused your injury or illness.
Your burden of proof depends on whether you suffered a physical injury, such as a back injury, herniated disc, rotator cuff tear, or torn ACL, or an occupational illness such as carpal tunnel syndrome or hearing loss. In all physical injury cases and a small number of occupational disease cases, your burden of proof is met under the preponderance of evidence standard. The Commission will award benefits if it believes that it is more likely than not that your employment caused your injury or illness.
In most occupational disease claims, however, your burden of proof is met only if you satisfy the clear and convincing evidence standard. The Commission will award benefits only if it believes that it is highly or substantially more likely that your employment caused your disease. This is a difficult standard to meet, especially in claims for benefits for hypertension and cardiovascular disease, which often have several contributing factors such as obesity, smoking, and family history.
A disease presumption changes the burden of proof completely – in your favor – and gives you the benefit of the doubt when there is uncertainty or difficulty determining the cause of your disease. The presumptions found in the Heart and Lung Act establish a connection between your occupation and the disease, meaning that you do not need to present evidence on causation. The disease presumption shifts the burden away from you to show that your employment caused your disease and to your employer to show that your disease was caused by something other than your employment.
The disease presumptions found in the Heart and Lung Act make it easier to get a Workers Compensation Award. But they do not give you benefits automatically. You must still meet specific requirements to get the presumption and the employer may present evidence to rebut the presumption.
Depending on what disease you have been diagnosed with (cardiovascular disease, lung disease, or cancer), the presumption may have requirements regarding:
In addition, your employer is can try to rebut the disease presumption. The Supreme Court of Virginia has stated that a disease presumption is constitutional and does not deny an employer or its workers compensation insurance carrier of due process only if it can be rebutted. Your employer can rebut the disease presumption if it presents shows that (1) your disease was not caused by the employment and (2) there is a specific non-work-related cause of your heart or lung disease.
Though the presumption does not result in an award of benefits automatically, statistics show that it is helpful. According to a study completed by the Joint Legislative Audit and Review Commission (JLARC), public safety workers are more than twice as likely to win their claims for work-related heart disease as workers in other occupations.
You must meet several requirements to benefit from the disease presumptions found in the Virginia Heart and Lung Act.
Let’s take a look at each of them.
Only certain groups of public safety workers qualify for the presumptions covering cardiovascular disease and respiratory illness.
You may benefit from the disease presumptions in the Heart and Lung Bill if you are a:
The second requirement to get the benefit of the presumptions for heart or lung disease is medical in nature.
A doctor must diagnose you with hypertension, cardiovascular disease, or a respiratory illness to qualify for the presumption. Though this seems straightforward, whether a medical condition is included in the definition of “heart disease” or “lung disease” is often disputed by employers, insurers, and third party claim administrators (TPAs) that are trying to avoid having to pay workers comp benefits.
The third requirement that you must meet to qualify for the presumption under the Heart and Lung Act concerns your actual work status.
It is not enough to be diagnosed with cardiovascular or lung disease and to require treatment. You must also prove that you missed time from work or were restricted to modified, light duty work because of the disease. Otherwise the disease presumptions found in the Heart and Lung Bill do not apply.
As I said earlier in the article, you should not surprised if your employer or its defense attorney argue that your cardiovascular condition does not meet the definition of “heart disease” under the Workers Compensation Act.
“Heart disease” is limited to diseases of the heart, including heart arrhythmia. The Heart and Lung Act also covers myocardial infarction (heart attack) and hypertension. Hypertension is defined as persistently high pressure of the blood against the arterial walls. Your hypertension diagnosis must be based on three or more consecutive daily or weekly blood pressure readings.
Other cardiovascular diseases, conditions, and procedures covered under the Virginia Heart and Lung Bill for police officers and firefighters include:
The Workers Compensation Commission scrutinizes claims based on atrial fibrillation closely.
Diseases that affect the heart, such as postural orthostatic tachycardia syndrome and inappropriate sinus tachycardia, are not covered under the presumption because they are nervous system disorders. In other words, the heart disease presumption does not apply to medical conditions that affect your heart but originate with another organ or system.
Though there is no specific definition of lung disease found in the Workers Compensation Act, the Commission has awarded benefits for the following respiratory illnesses suffered by police officers and firefighters:
Before I represented injured workers, I defended VML Insurance Programs (now the Virginia Risk Sharing Association), the County of Henrico, and other local governments in workers comp matters. During this time I learned how heart and lung disease claims are litigated and decided.
To rebut the presumption and defeat your claim for benefits for heart or lung disease, your employer must present medical evidence demonstrating that your employment is not a cause of your heart disease and that there is a work-related cause of your heart disease.
It is not enough for your employer to identify risk factors for cardiovascular or lung disease that are unrelated to your employment – congenital conditions such as a bicuspid aortic valve, poor diet, smoking, obesity, or a family history of premature coronary artery disease.
Nor is it sufficient or appropriate for the employer or its insurer to offer evidence showing that there is insufficient research and data linking your lung or cardiovascular disease to your employment.
Rather, your employer must find a doctor to explicitly state that your doctor was caused by something outside of your work and that your occupation was not even a contributing cause. If it doesn’t, and you meet the other requirements of the Heart and Lung Act, you will receive wage loss replacement and medical benefits.
To find evidence of a non-work-related cause of your cardiovascular disease, your employer will try to obtain all of your medical records from at least 10 years prior to your diagnosis of a heart disease, hypertension, or lung condition. The employer is looking for a sign that your disease pre-existed your employment. If the employer was smart, it would have determined this by having you undergo a pre-employment physical.
Next, your employer will dissect the length of your employment and what exactly you were exposed to on the job. Its hope is that you did not have a stressful position. This is, however, going to be difficult for the employer to prove under the existing law.
Then your employer will try to talk with your treating physicians, including your cardiologist or pulmonary doctor, to see if they will state that your disease is unrelated to your employment. If you developed the medical evidence before filing a workers comp claim, you should not have anything to worry about it here.
If your treating physicians stay strong and supportive of your claim, the employer will likely ask you to attend an Independent Medical Examination (IME). Unfortunately there is nothing independent about IMEs. That is why I call them Defense Medical Examinations. Usually the IME doctor will conduct a short examination and record review, then issue a report finding a non-work-related cause of your cardiovascular or lung disease. The Commission will have to determine which doctors it finds more credible – your treating doctors or the IME doctors.
Finally, the employer may argue that your symptoms are not related to a heart disease or respiratory condition. For example, if you have a nervous system disorder that affects your heart, the employer may argue that your condition is not heart disease. To win on this argument, the employer must have supportive medical evidence stating that you are not suffering from hypertension, cardiovascular disease, or a respiratory condition.
Yes.
As a police officer or firefighter, you may get the benefit of the presumptions found in the Heart and Lung Bill if your employer failed to administer a pre-employment physical or if your pre-employment physical did not reveal heart disease, hypertension, or a respiratory condition.
You will not qualify for the heart or lung disease presumption, however, if you refused to undergo a pre-employment physical examination requested by your employer.
Yes.
Retired police officers and firefighters are entitled to the disease presumptions found in the Heart and Lung Act.
It is important, however, that you file a claim for benefits as soon as you are diagnosed with the condition to improve your chance of satisfying the applicable workers comp statute of limitations. You have two years from the date you are diagnosed with heart or lung disease, or five years from the last injurious exposure to your employment, whichever comes first, to file your claim.
I think the heart and lung statute of limitations is unfair given how long it takes many of these conditions to become symptomatic, but that is the current state of the law.
Yes.
Depending on the severity of the disability caused by your cardiovascular disease or respiratory illness, and other non-medical requirements, you may qualify for work-related disability through the Virginia Retirement System, Social Security Disability Insurance (SSDI) benefits, or long term disability benefits.
Often it makes sense to settle your workers comp case if you believe you will qualify for one of these other types of benefits or have already been approved.
For more information on your ability to receive workers comp while also receiving other disability benefits for your heart or lung disability, read these articles:
Knowing that there is a presumption that hypertension, heart disease, and lung disease are related to their employment, many firefighters and police officers decide not to hire a workers comp lawyer. At least not initially.
But what many find out is that relying on the presumption alone and fighting experienced workers comp adjusters and insurance defense attorneys without help are mistakes.
Treating heart disease and lung disease is expensive. Employers know this. That is why they often conduct thorough discovery, including interrogatories and depositions, and are willing to spend the money to find potential defenses to your workers comp claim. Do not be surprised if you have to present your case at a workers comp hearing to get benefits – even with the benefit of the disease presumption.
I recommend that you obtain supportive evidence to protect your right to benefits under the Heart and Lung Act. This includes depositions and medical reports from all your treating physicians to explain why your condition qualifies as heart disease or lung disease, the role your employment and job-related stress had in causing or worsening your disease, the disability you now have, and what future medical treatment you will require. This puts you in the best position of getting the benefits and a workers comp settlements for heart disease or lung disease.
If you’re a firefighter or police officer who has been diagnosed with heart disease, hypertension, or lung disease, call me today: (804) 251-1620 or (757) 810-5614. With offices in Richmond and Hampton Roads, I can help you no matter where you’re located in Virginia.