BILL REQ. #:  S-1509.1 

READ FIRST TIME 02/21/11.   

     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) In the case of law enforcement officers as defined in RCW 41.26.030 or members of the Washington state patrol retirement system under chapter 43.43 RCW who are covered under Title 51 RCW, there is a prima facie presumption that any heart problems or stroke experienced within twenty-four hours of the officer, while on duty, having engaged in nonroutine stressful or strenuous physical activity is unusual exertion and is an injury under RCW 51.08.100. This presumption may be rebutted by a preponderance of the evidence. The 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) Nonroutine stressful or strenuous physical activity is limited to situations of stressful or strenuous training exercise, physical law enforcement, fire suppression, rescue, hazardous material response, emergency medical services, prison security, disaster relief, or other emergency response activity.
     (3) When the heart problem or stroke is an injury as defined by RCW 51.08.100, a claim must be filed as provided in RCW 51.28.050.
     (4) This section does not apply to a law enforcement officer or member of the Washington state patrol retirement system 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 excludes a law enforcement officer or member of the Washington state patrol retirement system from the provisions of this section.

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.