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THE HEPATITIS PRESUMPTION

Labor code 3212 has been amended by the legislature to include hepatitis, regardless of whether it is type A, B or C. The effect is not retroactive to 1997 as is the new cancer presumption, but it does continue to apply after separation. This presumption follows the safety member at the rate of three months per year of service for up to a maximum of sixty months (five years) from the date last worked.

This very timely and important addition to the Labor Code 3212 presumptions, which also include “heart trouble, hernia, pneumonia, tuberculosis, cancer and meningitis,” has become vital to safety members because hepatitis C has reached epidemic proportions.

THE HEPATITIS C EPIDEMIC

At a press conference on July 27, 2000 Surgeon General David Satcher  stated that “an estimated four million Americans have been infected with the hepatitis C virus, and a majority of them are not aware that they are infected.”

It is estimated that ten thousand Americans will die from this disease this year. It is also estimated, unless measures to halt the spread are taken, the yearly death toll will shortly reach 30,000.

There are four times as many people who carry the hepatitis C virus in this country as do the HIV virus. The thing to remember is that both are deadly, but only one is curable. Hepatitis C can be completely cured if caught in time.

THOSE AT RISK

According to studies appearing in the Journal of the American Medical Association (1996:276:126-131) and Gastroenterol Clin North Am. (1994;23:437-455) those at risk are:

Prisoners: 60-90% prevalence in prisons.

Ethnic Groups: 10% in Vietnamese

                          3.2% of African Americans

                          2.1% of the Hispanic population.

First Response Personnel: Police, Firefighters, Paramedics, EMS, and Security personnel.

The risk to First Response Personnel arises through contact with the bodily fluids of infected individuals. The pathway can be a needle stick while patting down a suspect or exposure to a victim’s blood or bodily fluids while rendering aid at an accident scene. If you happen to have a nick or a cut on your hands, as most of us do from time to time, the stage is set.

BY THE TIME SYMPTOMS APPEAR, IT MAY BE TOO LATE

Symptoms are rarely experienced until many years, even decades, later. That is when the disease reaches the chronic stage. Hepatitis C, unlike hepatitis A and B, becomes chronic in fully 85 percent of those infected. Once the disease becomes chronic, it becomes more difficult and infinitely more expensive to treat.

From a legal standpoint delayed symptomatology creates problems due to time limitations in the law. Because this disease takes so long to become symptomatic, the time limitations for the Labor Code Section 3212 presumption (5 years maximum) may operate to bar a safety officers claim.

If the disease had become symptomatic while the member was still in service, the presumption would be available. Even with the presumption being available, it is not good legal practice to depend solely on the presumption. It is always best to obtain medical evidence to prove up the claim then the presumption becomes “frosting on the cake,”

WHEN IS IT TOO LATE?

Because symptoms may not appear for years or even decades, a retiree who becomes infected may not have a clue until well after the time limitation has run.

The time limitation under Labor Code 5405 simply states that a claim may not be filed more than one year following the date of injury or the last date benefits were provided but, in any case, no more than five years from the date of injury.

Under present law, a retiree who is diagnosed with Hepatitis C more than five years following retirement may well be out of luck.

WHAT MUST BE DONE

Prevention

Agencies need to establish a safety protocol designed to minimize the risks of exposure. Training of personnel and acquisition of adequate protective equipment is essential. Model programs are already in place in some of the more progressive departments.

Screening

Following exposure, a simple, inexpensive and effective screening test can establish whether or not a member is at risk. The benefit to the employer is that if discovered early, the disease is curable and the cost is miniscule compared to the cost of maintaining a chronically ill individual.

A comparison of the cost of a liver transplant ($250,000 for the first year and $24,000 yearly thereafter) and a hepatitis C screen ($40) reveals that 6,250 individuals can be screened for the cost of an initial liver transplant and an additional 600 individuals can be screened for the cost of yearly maintenance of a liver recipient.

THE GOOD NEWS IS THAT HEPATITIS C CAN BE CURED

Advances in available treatment provide for total and complete cure if the disease is caught early enough.

Treatment costs are a fraction of the costs of liver transplantation and follow-up care. Add to that the costs of Workers Compensation Temporary Disability (full salary for one year-LC 4850), Permanent Disability Indemnity, and potentially, Survivor Benefits, the conclusion becomes abundantly clear that an aggressive approach by management is essential.

Employee associations need to consider including mandatory screening in their collective bargaining demands at contract renewal time, screening not only of personnel at time of potential exposure but also of individuals who are separating due to retirement or termination. Considering that the cost of screening is less than that of an eye examination, yearly screening of all safety personnel makes good sense.

This article was submitted to PORAC News, The Rapsheet, Firelines, Huntington Beach POA, and California Association of Professional Firefighters.