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MN Workers Compensation Comments From LMNC:

Workers’ compensation
Certain volunteers are defined by statute (M.S. 176.011, subd. 9) to be "employees" for purposes
of workers’ compensation. These include

These volunteers are entitled to receive workers’ compensation benefits if they are injured while
performing volunteer services for the city. Note that volunteer First Responders are considered
to be “employees” only if the First Responder team is “acting under the supervision and
authority of a political subdivision”. In other words, a volunteer member of First Responder
team that’s organized independently of a city or other political subdivision apparently isn’t an
“employee” for purposes of work comp, and would not be entitled to work comp benefits from
anyone if injured.

M.S. 176.011 says that for most of the types of volunteers listed above, if the unpaid volunteer’s
injury disables him/her from working, work comp benefits are to be based on the wage of paid
employees performing similar services. In a recent case involving a volunteer firefighter, the
court ruled that benefits for the firefighter should be based either on the wage of a paid
firefighter in a nearby city or on the firefighter’s own actual earnings from his regular
employment, whichever is greater. The same reasoning would probably apply to other types of
volunteers as well, though the statutory language is slightly different and the courts have not yet
addressed this question for volunteers other than firefighters.


WORKERS’ COMPENSATION FOR FIREFIGHTERS

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Firefighters in Minnesota may be employees or volunteers for a city. The workers’ compensation law provides certain benefits to “employees.” Generally, a volunteer is not an “employee,” and therefor most volunteers are not covered by workers’ compensation. However, M.S. 176.011, subd. 9 (3) specifies that a firefighter is considered to be an “employee.” The Minnesota Supreme Court ruled many years ago that because of this provision, volunteer firefighters are covered by workers’ compensation, even if they are unpaid. There are similar provisions for certain other unpaid volunteers, such as ambulance attendants.

In general, work comp for firefighters is the same as work comp for other employees. However, there are some special provisions concerning how lost wage benefits are calculated for volunteer firefighters, and there are also provisions specifying that certain diseases are presumed to be job-related for all firefighters. There are also some special issues that arise with regard to when a firefighter is considered to be on duty for workers’ compensation purposes when responding to a fire or other emergency call. Finally, LMCIT’s work comp premium rating system has some unique features that reflect the unique aspects of work comp for firefighters.

How are work comp benefits figured for volunteer firefighters?
The work comp statutes themselves are not very clear on how benefits for volunteer firefighters are to be calculated, and for a long time there was a lot of uncertainty as to exactly how it was supposed to work. Over the past several years though, the courts have resolved many of the questions. Here is a summary of how lost wage benefits are calculated for a volunteer firefighter:

The statutory presumptions

The work comp laws establish statutory presumptions for certain heart and lung diseases such as myocarditis, coronary sclerosis, and pneumonia; many types of cancer; and infectious diseases, such as AIDS or hepatitis. If a firefighter contracts one of these diseases, the disease is presumed to be job-related if certain conditions are met.

It is important to understand that this does not mean a firefighter is automatically entitled to workers’ compensation benefits if s/he contracts one of these diseases. The real effect of these presumptions is to shift the burden of proof. Normally, a person who claims a disease is job-related has the burden of proving that his/her job caused the disease in order to qualify for work comp benefits. The statutory presumptions shift the burden of proof to the employer to show the disease is not work-related. In other words, these diseases will be treated as being job-related unless the employer can show they resulted from other causes. For example, in the case of a heart attack, the employer might try to show that the employee was overweight, a heavy smoker, had high blood pressure, had high blood cholesterol, etc.; and that these conditions, rather than the work as a firefighter, were the cause of the heart attack.
There are also some conditions that must be met before these presumptions come into play. The conditions differ somewhat for the various disease presumptions.

Heart and lung disease
In order for heart or lung disease to be presumed to be job-related, the employee must have had a physical examination at the time s/he was first employed, and a written report of that examination showing s/he was free of the disease must have been filed with the fire department. (Police officers also qualify for this presumption.)

Cancer
For firefighters who entered service before August 1, 1988, a prior examination is not required to be entitled to the cancer presumption. But, if the employee who entered service before August 1, 1988, was examined prior to employment and the exam showed evidence of cancer, that cancer is not presumed to be job-related. The law isn’t clear on whether a firefighter who entered service on or after August 1, 1988, must have had a physical exam in order to receive the presumption.

Infectious diseases
The presumption that an infectious disease is job-related applies only if the firefighter was exposed to the disease in the course of performing his/her duties. In other words, in order for the firefighter to be entitled to the presumption, it appears there would need to be some evidence the firefighter actually came into contact with a carrier of the disease and that the nature of the contact was such that the disease could have been transmitted. Ordinary diseases of life, to which the general public is equally exposed outside of employment, such as colds and flu, are generally not covered by work comp. Police officers, EMT’s, ambulance attendants, and any other employee whose job involves providing emergency medical care outside of a hospital are also covered by this presumption.


Reducing the risks of fire-related heart disease and cancer

There is no “magic bullet” that will prevent heart disease. Generally, the prevention of heart disease boils down to not smoking, as well as a good diet and exercise, or at least an active lifestyle. Some fire departments have smoking cessation programs and exercise facilities where their firefighters can work out. Other fire departments have programs offering discounts for joining health clubs; some have fitness programs. Many departments also provide information on a healthy diet to their firefighters.

Firefighters can also take certain measures to prevent firefighter-related cancer. A self-contained breathing apparatus (SCBA) is one of the most important items of personal protective equipment used by firefighters and rescue personnel. An SCBA allows a firefighter to enter hazardous atmospheres when suppressing fires, searching for victims, rescuing victims, and removing victims. An SCBA can also be used in non-fire situations, such as around hazardous materials or in confined space rescue situations involving toxic fumes or oxygen deficient atmospheres. An SCBA prevents a firefighter from inhaling cancer-causing smoke or toxic fumes. Obviously, the less contact a firefighter has with cancer causing substances, the less likely he or she will get cancer. SCBA’s are now widely used in fire departments.

Scope of Employment
Work comp benefits are available if there is an injury that is within the “scope of the firefighter’s employment” for the city. The firefighter’s scope of employment should include not only fighting fires and responding to other emergencies, but also attending meetings, drills, and other types of training.

Injuries sustained while engaged in firefighter activities are probably covered by work comp.

There is a difference in coverage between situations in which a firefighter is responding to a fire call or some other emergency, and situations in which a firefighter is traveling to meetings, drills, and other types of training. A firefighter is covered from the time s/he responds to a fire alarm, a pager, or other device until the time s/he returns home. Travel from home to the fire hall and directly home again is covered in a fire call or other emergency situation. In contrast, travel from home to a firefighter meeting, fire drill, or other type of training would not be covered. The scope of employment is wider during fire calls or other emergency situations compared to nonemergency situations.

If a firefighter does not go straight home from the fire hall after responding to a fire call or other emergency, the scope of employment ends at the fire hall. For example, if the firefighter went to a bar instead of going home, it would be considered a “detour and frolic.” “Detour and frolic” is a legal term. Injuries sustained during a “detour and frolic” are not covered by workers’ compensation. A “detour and frolic” is not within the scope of employment.

There is a category of activities, which the legislature has specifically excluded from the scope of employment. The legislature has passed a statute that excludes work comp coverage of injuries sustained while an employee is participating in voluntary recreational programs sponsored by an employer such as health promotion programs, athletic events, parties, and picnics. This rule applies to all employees, not just firefighters. The courts have denied work comp coverage of injuries that firefighters sustained while playing on employer sponsored softball games or while voluntarily attending employer sponsored picnics or dinners. However, if an employer requires its firefighters to attend these activities, then any injury sustained while attending them would be covered.

Work comp premium rates for firefighters
Unlike other classes of employees, work comp premiums for volunteer firefighters are not based on the payroll. Instead, the rates are based on the population of the area, which the fire department serves. This includes the population of areas, which the fire department serves under contract, not just the population of the city itself.

LMCIT’s rate system also includes another unique rating feature that affects firefighters. Several of the diseases, which the statute says, are presumed to be job-related for firefighters—various heart diseases, lung diseases, and cancers—are related to smoking. If a firefighter is a smoker, he/she is more likely than a non-smoker to contract one of these diseases; and if a firefighter does contract one of these diseases, there is a good chance it will turn into a work comp claim. Of course, if the firefighter was a smoker, his/her smoking might be one of the pieces of evidence used to rebut the presumption that the disease was job-related, so that work comp benefits would not be payable. But even so there would likely be substantial legal costs involved to litigate the claim.

In short, a fire department with very few smokers represents a smaller risk of a work comp claim for heart disease, lung disease, or cancer. The LMCIT Board concluded that this risk difference should be reflected in the rate. Therefor, any city that can certify that no more than 10% of the members of its fire department are smokers qualifies for a rate that is 10% lower than LMCIT's standard rate for firefighters. This credit also applies to police officers.

To qualify for the credit, the city must obtain written statements from at least 90% of the members of the department. The statement must be signed and dated, and must state that the individual does not smoke and has not smoked within the previous six months. These statements, along with a roster of current department members, should be available to the LMCIT auditor when s/he visits the city.


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