BILL REQ. #:  H-1211.2 

READ FIRST TIME 02/04/11.   

     AN ACT Relating to presumptions of occupational disease for law enforcement officers and firefighters; amending RCW 51.32.185; adding a new section to chapter 51.32 RCW; and creating new sections.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   A new section is added to chapter 51.32 RCW to read as follows:
     (1) For purposes of this section, "law enforcement officer" means either a law enforcement officer as defined in RCW 41.26.030 or a member of the Washington state patrol retirement system under chapter 43.43 RCW.
     (2) If a law enforcement officer, who is covered under Title 51 RCW, dies as the direct and proximate result of a heart problem or stroke, that law enforcement officer shall be presumed to have died as the direct and proximate result of a personal injury sustained in the course of employment, if:
     (a) That law enforcement officer, while on duty:
     (i) Engaged in a situation, and such engagement involved nonroutine stressful or strenuous physical law enforcement, fire suppression, rescue, hazardous material response, emergency medical services, prison security, disaster relief, or other emergency response activity;
     (ii) Participated in a training exercise, and such participation involved nonroutine stressful or strenuous physical activity; or
     (iii) Responded to, or was in the course of responding to, a fire, rescue, or police emergency; and
     (b) That officer died as a result of a heart problem or stroke suffered:
     (i) While engaging or participating or responding as described under (a) of this subsection;
     (ii) While still on duty after so engaging or participating or responding; or
     (iii) Not later than twenty-four hours after so engaging or participating or responding; and
     (c) This presumption is not overcome by competent medical evidence to the contrary.
     (3) Nonroutine stressful physical activity means line of duty activity that:
     (a) Is not performed as a matter of routine. Routine means that the level of stress is routine and not simply that the activity itself is performed with some regularity;
     (b) Entails nonnegligible physical exertion; and
     (c) Occurs with respect to a situation in which a law enforcement officer is engaged, under circumstances that objectively and reasonably:
     (i) Pose, or appear to pose, significant dangers, threats, or hazards, or reasonably foreseeable risks thereof, not faced by similarly situated members of the public in the ordinary course; and provoke, cause, or occasion an unusually high level of alarm, fear, or anxiety; or
     (ii) With respect to a training exercise in which a law enforcement officer participates, under circumstances that objectively and reasonably simulate in realistic fashion situations that pose significant dangers, threats, or hazards; and provoke, cause, or occasion an unusually high level of alarm, fear, or anxiety.
     (4)(a) Nonroutine strenuous physical activity means line of duty activity that:
     (i) Is not performed as a matter of routine. Routine means that the level of physical exertion is routine and not simply that the activity itself is performed with some regularity; and
     (ii) Entails an unusually high level of physical exertion.
     (b) Nonroutine stressful or strenuous physical activity excludes actions of a clerical, administrative, or nonmanual nature.

Sec. 2   RCW 51.32.185 and 2007 c 490 s 2 are each amended to read as follows:
     (1) In the case of firefighters as defined in RCW 41.26.030(((4))) (16) (a), (b), and (c) who are covered under Title 51 RCW and firefighters, including supervisors, employed on a full-time, fully compensated basis as a firefighter of a private sector employer's fire department that includes over fifty such firefighters, there shall exist a prima facie presumption that: (a) Respiratory disease; (b) any heart problems or strokes, experienced within seventy-two hours of exposure to smoke, fumes, or toxic substances, or experienced within twenty-four hours of strenuous physical exertion due to firefighting activities; (c) cancer; and (d) infectious diseases are occupational diseases under RCW 51.08.140. This presumption of occupational disease may be rebutted by a preponderance of the evidence. Such evidence may include, but is not limited to, use of tobacco products, physical fitness and weight, lifestyle, hereditary factors, and exposure from other employment or nonemployment activities.
     (2) The presumptions established in subsection (1) of this section shall be extended to an applicable member following termination of service for a period of three calendar months for each year of requisite service, but may not extend more than sixty months following the last date of employment.
     (3) The presumption established in subsection (1)(c) of this section shall only apply to any active or former firefighter who has cancer that develops or manifests itself after the firefighter has served at least ten years and who was given a qualifying medical examination upon becoming a firefighter that showed no evidence of cancer. The presumption within subsection (1)(c) of this section shall only apply to prostate cancer diagnosed prior to the age of fifty, primary brain cancer, malignant melanoma, leukemia, non-Hodgkin's lymphoma, bladder cancer, ureter cancer, colorectal cancer, multiple myeloma, testicular cancer, and kidney cancer.
     (4) The presumption established in subsection (1)(d) of this section shall be extended to any firefighter who has contracted any of the following infectious diseases: Human immunodeficiency virus/acquired immunodeficiency syndrome, all strains of hepatitis, meningococcal meningitis, or mycobacterium tuberculosis.
     (5) Beginning July 1, 2003, this section does not apply to a firefighter who develops a heart or lung condition and who is a regular user of tobacco products or who has a history of tobacco use. The department, using existing medical research, shall define in rule the extent of tobacco use that shall exclude a firefighter from the provisions of this section.
     (6) For purposes of this section, "firefighting activities" means fire suppression, fire prevention, emergency medical services, rescue operations, hazardous materials response, aircraft rescue, and training and other assigned duties related to emergency response.
     (7)(a) When a determination involving the presumption established in this section is appealed to the board of industrial insurance appeals and the final decision allows the claim for benefits, the board of industrial insurance appeals shall order that all reasonable costs of the appeal, including attorney fees and witness fees, be paid to the firefighter or his or her beneficiary by the opposing party.
     (b) When a determination involving the presumption established in this section is appealed to any court and the final decision allows the claim for benefits, the court shall order that all reasonable costs of the appeal, including attorney fees and witness fees, be paid to the firefighter or his or her beneficiary by the opposing party.
     (c) When reasonable costs of the appeal must be paid by the department under this section in a state fund case, the costs shall be paid from the accident fund and charged to the costs of the claim.

NEW SECTION.  Sec. 3   This act may be known and cited as the Brian Walsh act.

NEW SECTION.  Sec. 4   This act applies retroactively to January 1, 2010.