Workers' Compensation | Lower Back Presumptions

Article

Labor Code Section 3213.2 recognizes certain safety personnel for low back injuries; this is often referred to as the Duty Belt Presumption.

Most officers who wear duty belts have additional stress on the back; the legislature has recognized the general day-to-day exposure that duty belts create on the lower back.

Presumptions

The burden of proof for an injury in a workers' compensation case is on the injured worker. There are exceptions to the rule, but in most situations; if you are eligible for a presumption, the defendants have to prove that there is no injury instead of the injured worker having to prove an injury.

Considerations with Specific and Cumulative Injuries

The presumptions do not guarantee benefits. If the Statute of Limitations (SOL) is applicable to your claim, then the presumption will not work to save your claim. In specific injuries, the SOL is one year from the date of injury or date of last benefit paid. For cumulative trauma injuries, the date that determines the date of injury for purposes of applying the one year SOL is the date of first disability (modified work, light duty, or time off work) and knowledge of an injury (the law defines this is a date you knew or should have known your injury or condition was caused by work. The facts of your claim will determine if you knew or should have known.)

In order for the presumption to apply, you may have to establish a certain length of time for your employment. In addition, the presumption can be raised after employment, but the length of time (up to five years) may depend on how many years of service.

The type of duty belt may determine whether or not the presumption applies. In another words, if you don't carry the traditional duty belt, this may be an issue. Generally, a duty belt means a belt used for the purpose of holding a gun, handcuffs, baton, and other items related to law enforcement.

Apportionment

Since 2004, Labor Code 4663 has allowed insurance companies to reduce permanent disability recoveries by obtaining apportionment to pre-existing medical conditions even at times when those conditions are not symptomatic. The advantage to a presumption applying to the l0w back is that Apportionment does not apply based on the Anti-Attribution Clause.

Presumptions & Industrial Disability Retirement (IDR)

A presumptive injury can be very important for Industrial Disability Retirement (IDR), because the first step in proving eligibility for IDR is a compensable work related injury or injuries leading to inability to perform your essential job functions. If your low back is preventing you from performing your essential job functions, then you may be eligible for Industrial Disability Retirement.