Representing the Injured or Disabled Member Part 48: Federal Benefits for Public Safety Officers and the “Line of Duty” Limitation

By: Jim Cline and Erica Shelley Nelson

Representing the Injured or Disabled Member

Part 48: Federal Benefits for Public Safety Officers and the “Line of Duty” Limitation

This article is the 48th in a multiple part series covering the rights your injured and disabled members have and how you, as a union or guild representative, can best assist them.  Over the past several weeks and continuing for the next several weeks, we have been and will be publishing, in various segments, information on how state and federal laws protect your members who are hurt or otherwise unable to work. We will cover topics including disability discrimination law, the FMLA, job protection rights under the CBA, workers compensation, disability benefits, and the right to bring a civil lawsuit.

The topics we are covering are also addressed in detail in a book that we published: Helping the Injured or Disabled Member: A Guidebook for the Washington Law Enforcement and Fire Union Representative.  It is also our intention over the course of the next year to travel through the state and provide training to public safety union and guild representatives on how best to enforce these rights.  Expect to hear more on that in the months ahead.

This 48th article of our Newsletter series provides a discussion concerning federal benefits available to officers or their families when there is a death or permanent disability in the line of duty and what the “line of duty” limitation means. For more information, visit our Premium Website. There you will find an online version of the Injured or Disabled Member’s Guidebook and other information on the laws covering your members.

The Act limits recovery to deaths that arise “in the line of duty.” This issue has been intensely contested at times and the Department of Justice that administers the benefits has often applied a restrictive definition of the “line of duty” requirement.  These DOJ restrictive interpretations have frequently been criticized by the federal courts that have overturned benefit denials and applied a broader eligibility definition. Courts have held that PSOBA should be “applied liberally,”[1] something that DOJ has not consistently done. Under the PSOBA, a heart attack, stroke, or vascular rupture suffered by a public safety officer and causing death is a presumptive personal injury if:

(1)  [T]he public safety officer, while on duty—

(A)  engages in a situation involving 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; or

(B)  participates in a training exercise involving nonroutine stressful or strenuous physical activity;

(2)  [T]he heart attack, stroke, or vascular rupture commences—

(A)  while the officer is engaging or participating as described in paragraph (1);

(B)  while the officer remains on that duty after being engaged or participating as described in paragraph (1); or

(C)  not later than 24 hours after the officer is engaged or participating as described in paragraph (1); and

(3)  [T]he heart attack, stroke, or vascular rupture directly and proximately results in the death of the public safety officer…[2]

This presumption can be rebutted with competent medical evidence establishing that the heart attack, stroke, or vascular rupture was “unrelated to the engagement or participation or was directly and proximately caused by something other than the mere presence of cardiovascular-disease risk factors.”[3]

The Federal Circuit in Greeley v. U.S. held that the death of a volunteer firefighter from a fatal heart attack, suffered after extinguishing a fire in the basement of a building, was not within the scope of the PSOBA.[4]  The Circuit Court held that the firefighter’s widow was unable to establish that a traumatic injury was the cause of the firefighter’s death, or that an injury was a substantial factor in his death, since the widow presented no evidence that smoke inhalation, carbon monoxide intoxication, or other acute injury occurred, and her own medical experts conceded that there was no indication in the autopsy that her husband had experienced traumatic injury.[5]

In Durco v. U.S.,[6] the Federal Claims Court denied survivor benefits to the widow of a volunteer firefighter whose death, the Court determined, was caused by atherosclerotic cardiovascular disease and his brief exposure to cold weather was not a “traumatic injury” which directly and proximately caused his death.  The Federal Claims Court also denied benefits to the widow of another volunteer firefighter in North v. U.S.[7] who was unable to present evidence that her husband suffered smoke or carbon monoxide inhalation, or sustained a personal injury prior to his death, or that a personal injury contributed in any way to his death so as to render it compensable.

PSOBA Benefits are not available if the member’s death or injury was caused by intentional misconduct; suicide; the member was voluntarily intoxicated at the time of the injury or death; the member was performing his or her duties in a grossly negligent manner at the time of the injury or death; the beneficiary of the benefit caused the injury or death to the member; or to military personnel.[8]

In Yanco v. United States,[9] the court disallowed coverage for a Massachusetts police officer whose on-duty work eventually led to emotional distress that led him to commit suicide. The Court held that the statute specifically disallowed emotional stress and suicide from the scope of the statutory benefit.

Federal courts have interpreted “line of duty” to include job-related coming to and going from work.  In Russell v. Law Enforcement Assistance Administration,[10] the Ninth Circuit held that the widow of a police sergeant who died in a car accident while returning home from work was entitled to death benefits because he was required to use his own car on the job, he typically spent much of his workday on the road, he used his car for job-related activities on the day of the accident, when driving home he was rendering service to his employer by transferring a piece of law enforcement equipment, and as a weekend duty detective he had to put in long hours, and was driving home at a particularly dangerous time, late on Saturday night, when he was killed.

PSOBA claims for death benefits must be filed within three years of the public safety officer’s death or injury, or within one year after a final determination of entitlement to receive, or of denial of, the benefits.[11]  The PSOBA benefit is available in addition to any other benefit from any other source, and prohibits the States from offsetting any state-funded death benefits against the PSOBA benefits.[12]  In Rose v. Arkansas State Police,[13] the U.S Supreme Court invalidated an Arkansas workers compensation law that attempted to create an offset for PSOBA benefits.

If a death or disability benefit claim is denied, the claimant may move for reconsideration of the denial.[14]  However, in order to exhaust his or her administrative remedies, the claimant must request a Hearing Officer determination, before filing a civil lawsuit for relief. This request must be filed within 33 days of the denial of the claim.[15]  If the Hearing Officer affirms the denial, the claimant must appeal to the Director of the PSOB Office no later than 33 days after service of the denial.[16]  If the Director denies the PSOB claim, the claimant may then pursue a civil claim in court. Given the amount at stake and the sometimes restrictive view DOJ has taken on benefits, families would be well-served by consulting with legal counsel before presenting such a claim.

[1] Demutiis v. United States, 48 Fed. Cl. 81 (2000), affirmed in part and modified in part on other grounds at 291 F.3d 1373 (Fed. Ct. 2002).
[2] 42 U.S.C. § 3796(k)
[3] Id.
[4] 50 F.3d 1009 (Fed. Cir. 1995).
[5] Id.
[6] 14 Cl. Ct. 424, 1988 WL 20507 (1988).
[7] 1 Cl. Ct. 93, 555 F. Supp. 382 (1982).
[8] 42 U.S.C. § 3796a, Sec. 1202.
[9] 258 F.3d 1356 (Fed. Cir. 2001).
[10] 637 F.2d 1255 (9th Cir. 1980).
[11] 28 C.F.R. §§ 32.12(a), and 32.22(a).
[12] 42 U. S. C. § 3796(e), and see also Rose v. Arkansas State Police, 479 U.S. 1, 3-4, 107 S. Ct. 334 (1986).
[13] 479 U.S. 1 (1986).
[14] 28 C.F.R. § 32.27.
[15] 28 C.F.R. §§ 32.27, 32.29, and 32.42.
[16] 28 C.F.R. § 32.52.

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