The Workers' Compensation Act of Colorado currently excludes disability or death caused by a heart attack from the definition of “accident”, “injury”, and “occupational disease”, unless it is shown by competent evidence that such heart attack was proximately caused by an “unusual exertion” arising out of and within the course of employment. The legislature is considering a bill that would create a presumption that a heart attack suffered by a firefighter within 48 hours of engaging in “a firefighting activity, including, without limitation, responding to an emergency incident, participating in training, or participating in physical ability testing” is caused by that firefighting activity.
The Colorado Self-Insurer’s Association has asked the National Counsel on Compensation Insurance (NCCI) for a cost analysis of the proposed bill. However, self-insured employers and insurance companies should not ignore this bill simply because it is limited to firefighters. You may remember that the legislature already has enacted legislation that certain types of cancer contracted by a firefighter is presumed to be caused by the firefighter’s job duties. This bill continues the erosion of the near-universal premise that the burden of proof is on the injured worker. It is not hard to imagine that police officers eventually will be added to the presumption. Since the physical exertion of a firefighter or police office is not any greater than the physical exertion of any heavy laborer, this bill could trigger labor unions and other lobbying groups to attack the exclusion of benefits for heart attacks. Therefore, in considering whether to oppose this bill, all self-insured employers and insurance companies should consider whether this bill eventually may effect the entire landscape of workers’ compensation law.
Right now the bill is in its infancy and does not have a number assigned. I will keep you apprised of the status and progress of the bill through the legislature. If you have any questions, please feel free to contact me.