May 2001Volume 15, Number 5
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Heart attacks again lead on-duty fire fighter fatalities |
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| Heart attacks continued to be the
leading cause of fatal on-duty injury to U.S. fire fighters (40 deaths,
or 39 percent of all fire fighter deaths) last year, according to a report
released this month by the National Fire Protection Association (NFPA).
There were 102 on-duty fire fighter deaths in 2000, a decrease of 10 deaths
from 1999.
Heart attack was typically the leading cause of death and generally accounted for roughly half of all on-duty deaths. On-duty heart attack deaths are usually attributed to overexertion or stress. The stress-related deaths in 2000 also included two due to strokes, one to an aneurysm, and one from a seizure. Last year, 11 of the 40 who suffered fatal heart attacks were known to have had prior heart problems, including heart attacks or bypass surgery. Considering other major causes of death, 21 fire fighters were killed in motor vehicle crashes, almost half of which occurred while the victims were responding to emergency calls. Thirteen fire fighters died of smoke inhalation or burns at fires. Twelve died of traumatic injuries resulting from falls or from being struck by vehicles or other objects. In 2000, three fire fighters were murdered while on duty. Of those who perished, 57 were volunteer fire fighters, 28 were career fire fighters, six were employees of state forestry agencies, three were employees of federal forestry agencies, three were contractors to federal or state forestry agencies, two were members of a state inmate forestry crew, one was a civilian employee of the military, one was a military fire fighter, and one was a member of an industrial fire department. Thirty-eight percent of the fire fighter deaths occurred on the fireground, 24 percent occurred while responding to or returning from alarms, followed by other on-duty responsibilities (18%), |
training (14%), and
non-fire emergencies (7%). Of the 39 fireground deaths, 14 were due to
heart attacks, eight to asphyxiation, seven to internal trauma, five to
burns, two to electrocutions, two to pneumonia following traumatic injuries,
and one to stroke.
A quarter of the career fire fighters who died were between the ages of 41-45. More than a third of the volunteer fire fighters who died were over the age of 60. Nine fire fighters died in connection with arson fires. Six fire fighters died as a result of false alarms last year. Also, three fire fighters were fatally assaulted and another was accidentally shot during SWAT training. "Cardiovascular illnesses continue to account for such a large proportion of fire fighter deaths annually, and this needs to be addressed," said Rita Fahy, NFPA's manager of fire databases and systems and co-author of the report. "Increased attention to incident management and accountability systems is essential if we are to continue to reduce the death toll at fire incidents." George D. Miller, NFPA president, said, "With our longstanding commitment to fire fighter and public safety, NFPA continues to work with fire fighters to help identify and correct trends relating to fatalities. So much more, though, has to be learned about why cardiovascular illness is cited so often for these deaths and how we can all work toward eliminating this as a cause." Over the last decade fire fighter line of duty deaths have remained roughly constant, ranging from 75 in 1992 to a high of 112 in 1999. Since 1977 the number and percentage of career fire fighter deaths has declined steadily. In 2000, only 28 of the 102 killed were career fire fighters. |
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. . could it be lack of exercise? |
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| A recently released
study by Texas A&M University reports that fire fighters are often
at high risk for heart attacks primarily because they get little or no
exercise while on duty. Wade Womack, a faculty member in the Applied Exercise
Science Laboratory at Texas A&M, charted 74 firefighters over a six-year
period. His study, titled "Cardiovascular Risk Markers in Firefighters:
A Longitudinal Study" published in Cardiovascular Reviews and Reports,
claims that often fire fighters are overweight and have less-than-ideal
cholesterol levels, both of which could pose serious health problems.
"It all comes down to one main point: firemen need to exercise more," says Womack. "When firemen do fight fires, it is work that is both very strenuous and stressful, and very physically exerting. Put it all together and the chances of a heart attack are high." "In almost all of the cases, the heart attacks suffered by firemen are directly linked to the exertional demands of the firefighter's job," Womack reports. "They have long periods on duty |
in which they get little
or no exercise. Then when a fire does occur, there is a sudden, intense
energy demand required, and if they are not in adequate physical condition,
the results can be deadly."
Participants in Womack's study ranged in age from early 20s to mid 60s, with the average age being 35.8 years old. They had above average body fat composition and slightly higher cholesterol readings based on optimum levels. Especially disturbing, he said, was that VO2 max, a measure of aerobic fitness, deteriorated significantly during the course of the study, from 41.8 to 35.6, suggesting a negative trend in the fire fighter's overall physical condition. The message is clear: fire fighters need to work out more. Improving diet and monitoring cholesterol would also help. Womack said his study was the result of contracts with local fire departments, in which the lab provides fire fighters with low-cost physical fitness assessments conducted by its students. After several years, Womack went back to look at the data and discovered the trends. |
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Pennywise and pound foolish in Niagara Falls? |
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| In 1996, Niagara Falls,
New York, then-Mayor James Galie proposed cutting more than a dozen fire
fighter positions in order to save money. Despite protests by fire fighters
and community members a total of 18 fire fighter slots were dropped from
the budget. The staff reduction has saved the city nearly $4 million _
or has it? Critics claim that the shortage of personnel has generated $7.4
million in disability costs!
Whether there is a connection between the fire fighter furloughs and the increased disability claims is difficult to establish. However, according to the Buffalo News, city records reveal that 12 Niagara Falls fire fighters were placed on disability status between 1978 and 1996, an 18 year period. During the three years following the furloughs, 11 fire fighters became disabled. |
Fire Chief William
Correa told the newspaper that manning levels dropped from 28 to 22 per
tour, creating "serious problems in a physically demanding job." The chief
said, "A majority of the disability injuries were directly related to the
layoffs.".
The former mayor disagrees. "That's all baloney," Galie said, blaming the injuries on unavoidable accidents, carelessness, and union politics. "There is no question in my mind that they [the city's two fire fighter unions] were incensed over the job cuts," he added. "All of a sudden minor injuries became serious injuries." "In my opinion, a lot of it was job action." But Chief Correa noted that fire fighters are trained as four-member crews. Reducing crews to three or two members greatly affects the efficiency |
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| of the company. "A
four-man company can perform 100 percent of the work required efficiently,"
he said. "A three-man engine company goes down to approximately 63 percent
efficiency. A two-man company goes down to approximately 18 percent. Two
men are going to get the job done, but they're going to kill themselves
doing it."
Eight of the disabled fire fighters have been accepted into the state disability plan while three are still awaiting a decision. While the claims were pending, the city paid an estimated $1.3 million in sick pay and other compensation. Once the fire |
fighters are added
to the state plan the city will still be responsible for 25 to 50 percent
of their salary as well as full insurance benefits. The city will not be
released from financial responsibility until the fire fighters turn 70
and are absorbed into the state retirement system. In the most extreme
example, a 33-year-old disabled fire fighter is expected to cost the city
more than $1.1 million in salary and benefits until he turns age 70.
City officials said measures are being taken to control disability expenses through safety training, closer case management, and insurance. |
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Church-going lawsuit settled in Ohio |
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| A lawsuit filed last
year by six Ohio fire fighters who were ordered to attend a church service
has been settled with an apology and an undisclosed amount of cash. The
American Civil Liberties Union (ACLU), which represented the six, announced
the settlement last month. The money will be donated to charities.
As reported in the October 2000 issue of Fire Service Labor Monthly, Parma Heights Fire Chief Bryan Sloan ordered the six fire fighters to attend a service at a local Baptist church during Civic |
Appreciation Day, where
the congregation honored public safety personnel.
The fire fighters said they did not wish to attend the service but were threatened with insubordination charges if they refused. The ACLU argued that the chief's order violated the First Amendment protection on the free exercise of religion. The key to the settlement was an apology by the fire chief and the assurance that the fire fighters will not suffer sanction for bringing the suit. |
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Union discipline New York City style |
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| The fire fighter unions
in New York City and the fire commissioner have not been getting along,
despite the fact that Commissioner Tom Van Essen was president of the Uniformed
Firefighters Association (UFA) when appointed to the department's top post
in 1996. Relations have turned so bad that the Uniformed Fire Officers
(UFO), which represents supervisory personnel, passed a no-confidence vote
on the commissioner.
Now Commissioner Van Essen's old union has adopted a different strategy _ union discipline. At its meeting last month, the UFA, which bargains for rank-and-file fire fighters, altered its constitution to require members of the executive board to repay their union salaries if they take management jobs with the city. A union spokesman said the move |
was aimed at deterring
members from leaving the union and joining management.
The UFA president is paid a salary equal to his city pay, which he is also allowed to keep. Other board members draw 50 percent of their city wage. The charter change provides that elected officers would have to refund their union wages if they take a management job with the city within three years of leaving the union. The new rule goes into force with next year's election of officers and will have no effect on the current fire commissioner. Commissioner Van Essen is believed to be the only UFA member ever to directly move to a management position in the city's fire department. "This [the salary repayment rule] was the real vote of no-confidence," a UFA official stated. |
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| May 2001 |
Volume 15, Number 5
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National bargaining bill reintroduced in Congress |
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| The cornerstone of
public safety unions' national legislative agendas, a collective bargaining
bill, was reintroduced in Congress last month. The Public Safety Employer-Employee
Cooperation Act (H.R. 1475), if enacted, would establish minimum standards
for state collective bargaining laws for fire fighters and police officers.
As with the previous session of Congress, the prime sponsor is Representative
Dale Kildee (D-Mich.).
As designed, the proposal would require the Federal Labor Relations Authority (FLRA) to determine if existing state laws meet statutory standards. If a state did not have a qualifying collective bargaining law, fire fighter and police officer labor issues would fall under the jurisdiction of the FLRA. The key points of the bill include mandatory bargaining with fire fighters and police officers and use of mediation, not arbitration, in case of impasse. Strikes are prohibited under the |
proposal.
A Congressional committee conducted a hearing on the bill last year. Supporters and critics were permitted to state their views on the legislation. No committee action was taken. The International Association of Fire Fighters (IAFF), AFL-CIO, which helped draft the bill, has tagged the proposal its most important legislative initiative. Lobbying groups for local governmental entities have expressed strong opposition to the bill, arguing that it might be unconstitutional. The proposal currently has 120 sponsors, including 21 Republicans. Last year, a majority of the members of the House of Representatives signed on as cosponsors but the matter never was brought to the floor for a vote. Companion legislation received only tepid support in the Senate, a circumstance not likely to change this session. |
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| Litigation | ||||||||
Cases of interest |
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| informing
him of the allegations earlier. In March 1993, the fire chief published
the captain promotion list and McMenemy's name was not on it. McMenemy
took additional exams in subsequent years but was not promoted. Subsequently,
he filed suit claiming that the city had retaliated against him for investigating
the sexual harassment complaint against the union president and had violated
his constitutional rights by failing to promote him and by failure to provide
a fair examination. Trial court dismissed the suit on the grounds that
there was no retaliation because the secretary worked for the union and
not for the city. Additionally, the court ruled that McMenemy had no property
interest in a fair promotion process. Fire fighter appeals.
HELD: Federal civil rights laws prohibit an employer from discriminating against any of its employees because the employee has opposed an |
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Promotion procedures |
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| McMenemy was a fire lieutenant and treasurer of the fire fighters' union. In December 1992, the fire chief allegedly promised he would promote McMenemy to the rank of captain in the upcoming spring after the anticipated retirement of another captain. However, a month after the alleged promise the secretary of the fire fighter's union told McMenemy that the president of the union, also a fire fighter, had sexually assaulted her and sexually harassed her. McMenemy decided to investigate the complaint. The following month at the suggestion of police officers investigating the alleged sexual assault, McMenemy informed the fire chief of the allegations. McMenemy subsequently claimed that the fire chief was a friend of the union president and thus scolded McMenemy for not | ||||||||
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| unlawful employment practice. Trial court interpreted this phrase to mean that the employer who conducted the retaliation against the employee must be the same employer who allegedly engaged in the unlawful practice. The plain reading of the law, however, does not support this limitation. The federal law prohibits discrimination by an "employer" against an "employee" who has opposed an unlawful employment practice. It does not require that the employers in question be identical. Allowing retaliation claims like McMenemy's is especially appropriate where, as here, the two employers, the city and the fire fighter's union, have a relationship that may give one of them an incentive to retaliate for an employee's protected activities against the other. Here, the members of the union who may have had an interest in retaliating against McMenemy were also employees of the city, whose retaliation against McMenemy they may have been able to orchestrate. There are allegations that the fire chief who refused to promote McMenemy was a friend and ally of the union president who was the object of the investigation. This claim should be allowed to proceed. As to the allegation of a deprivation of due process rights, McMenemy's claim must fail. The fire fighter asserts a property interest in a competitive examination for promotion, an interest in fair consideration for promotion, and an interest in the promotion itself. While state law clearly requires a competitive examination, the law does not create a recognizable property interest in a competitive examination. An examination is not an end in itself; it has value only because it may lead to something valuable - the job. Because McMenemy had no legitimate claim of entitlement to, and therefore no property interest in, the position to which he aspired, the procedures used to fill the job are immaterial to his due process claim. No property interest or liberty right is created simply because statutory promotional procedures exist. It also follows that McMenemy had no property interest in fair consideration for a promotion. Because there is no recognizable property interest in promotion, his constitutional claim must fail. | Reversed and remanded in part for fire fighter. [(McMenemy v. City of Rochester, New York, 241 F.3d 279 (2nd Cir. 2001)] | |||||||
Race discrimination |
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| DiLegge, a white fire
fighter, had been on the department for over a dozen years. In 1999, he
was ranked second on the eligibility list for promotion to one of two open
fire lieutenant positions. However, he was passed over and the individuals
who ranked first and third, a white and an African-American fire fighter,
won the promotions. DiLegge filed a discrimination charge with the Equal
Employment Opportunity Commission. While waiting for resolution of the
charge, another opening for fire lieutenant occurred. Although he ranked
first on the eligibility list DiLegge was passed over in favor of another
white fire fighter. DiLegge subsequently amended his unfair employment
practice suit and claimed he had been retaliated against because of his
filing of the first discrimination claim. Before the matter could be resolved
the fire commissioner who had made the promotion decisions suffered a debilitating
stroke and was unable to be a witness in the case. The city moved for summary
judgment dismissing all claims.
HELD: DiLegge claims he was not promoted because of union association and his race. To establish a fair employment practice claim based on race, a plaintiff must demonstrate that he is a member of the protected class, he was qualified for the position, he suffered an adverse employment action, and the adverse employment action occurred under circumstances giving a rise to an inference of discrimination. To establish First Amendment retaliation the plaintiff must demonstrate that his action was constitutionally protected, he suffered an adverse employment act decision, and a causal connection exists between the action and the decision. In this case the mayor was an African-American while the fire commissioner was white. Where two applicants are considered to be of substantially similar qualifications, no adverse |
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| inference follows against the city simply because the mayor happens to be a minority. A white plaintiff may not holler discrimination and survive a summary judgment motion simply because the political leadership of the city resides with a minority. The plaintiff rather must show that a reasonable juror could find on the evidence that reverse race discrimination played a substantial part in the promotional decision. Here, the city operated under the positional rule of three. The rule of three was adopted because adherence of appointment by competitive examination recognized that no exam was reliable enough to constitute the sole basis for a personnel decision. The one out of three rule allows the appointing officer discretion to appoint anyone in the top three names on the list, thereby permitting the official to give limited weight to intangibles such as leadership ability, specialized experience, the ability to relate to members of the public, nearness of the applicant's residence to the job site, and perhaps a small residue of old fashioned politics. The rule of three represents a compromise and a perceived reform from the olden times when vacancies were filled upon political favoritism and bribery. Insofar as the subjective qualifications of a candidate for promotion, reasonable persons may evaluate the candidates differently. Each of the candidates in this case had somewhat similar scores and somewhat similar backgrounds. Whenever one aspirant for promotion is chosen over another, differences will exist between the candidates as to race, religion, sex, and national origin. The mere existence of such differences does not support a verdict for a complaining plaintiff however. The plaintiff must prove that discrimination was the real reason for the failure to obtain the promotion. A jury cannot infer discrimination from thin air. Here, DiLegge cannot prove that his activities as a union leader or the commencement of the lawsuit were significant motivating factors in failure to being promoted. Likewise, in his own deposition he admitted that he was no better qualified to be a lieutenant than some of the other candidates. Here again, the subjective factors permitted in exercising | judgment to appoint one out of three from the civil service list may be properly considered by an employer without violating federal law when an equally qualified applicant is appointed. Motion to dismiss suit granted. [DiLegge v. Gleason, 131 F. Supp.2d 520 (S.D.N.Y. 2001)] | |||||||
Disciplinary procedures |
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| Several
fire fighters were disciplined by the city as a result of the manner in
which they responded to a 911 call. On their behalf the fire fighter's
union filed a grievance and demanded arbitration pursuant to the contract
between the city and the union. At the same time the union filed an unfair
labor practice charge with the Florida Public Employee Relations Commission
(PERC) alleging that the city had improperly disciplined the three fire
fighters because of union- related activities. In the PERC proceeding the
hearing officer found that the city had cause to discipline the fire fighters.
After the ruling by the PERC, the union pursued the arbitration which it
had previously demanded. The city rejected the move for arbitration and
the trial court sided with the city holding that under state law the union
was barred from pursuing arbitration on the same charge that it had taken
to the PERC. Union appeals.
HELD: Florida statute governs grievance procedures between public employers and employees or unions. The statute provides that the employer and the bargaining agent shall negotiate a grievance procedure that has as its final step binding arbitration. The statute further reads "a career service employee" shall be afforded the option of a civil service appeal, binding arbitration, or an unfair labor practice charge but such employee may not use more than one of these procedures. The union argues that the prohibition of pursuing more than one review of a grievance is limited to "career service" employees. The statute in question, however, contains no definition of "career service employee." In the absence of any legal authority to support the union's argument, no basis exists to create a distinction among public employees for the |
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| purposes of grievance procedures. Trial court was correct in holding that an attempt to arbitrate the discipline was barred because the matter had already been taken to the PERC. Dismissal of case affirmed. [Hallandale Professions Firefighters, Local 2238 v. City of Hallandale, 777 So.2d 435 (Fla. Dist. Ct. App. 2001)] | considering the adequacy of disciplinary charges filed against public employees. It is elementary that an employee cannot legally be tried or found guilty on charges of which he has not been given plain notice by the appointing authority. These principles emanate from the concept of affording due process and fairness to proceedings that impact so significantly on an employee. A review of the record reveals that Pepe had full notice of the charges and specifications and that the ultimate conclusion by the hearing officer fell within the four corners of those charges. The hearing officer found that Pepe was present at the scene, overheard the conversation about the fire alarm, and took no action. Pepe's defense was that he knew nothing about the false alarm. Pepe's knowledge of the event was necessarily the underpinning of any charge against him. Once the hearing officer concluded that Pepe had knowledge of the false alarm, the duties incumbent upon any fire fighter are clearly set forth in the code of ethics. The obligation of reporting such a clear violation of the law is so basic and primary to a fire fighter's duties that Pepe's argument of lack of notice rings hollow. Any citizen using common sense, let alone a fire fighter, would recognize that false alarms place citizens and fire fighters at significant personal risk by deploying scarce public resources to respond to charades when those resources may be needed elsewhere for real emergencies. The obligation of fair notice was unquestionably met in this case and the trial court erred by dismissing the charges. Reversed and remanded. [Pepe v. Township of Springfield, 766 A.2d 771 (N.J. Super. Ct. App. Div. 2001)] | |||||||
Disciplinary grounds |
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| Pepe and
two fellow fire fighters were off duty at a restaurant. As a joke, the
three fire fighters induced a private citizen to call in a false fire alarm.
Immediately after the call was placed, the three fire fighters left the
restaurant, stating they knew that their beepers would be activated and
they would not be in the restaurant when the call was traced. When fire
fighters responded to the call, they found that it was a false alarm. An
investigation was subsequently launched and two fire fighters were criminally
charged. As part of a plea bargain with the prosecutor's office the two
fire fighters identified Pepe's involvement in the matter. He was not criminally
charged. However, the fire department filed disciplinary allegations against
Pepe. In particular, the administrative allegations claimed that Pepe violated
the code of ethics of fire fighters in regard to his conduct and responsibilities.
He was provided a written set of specifications about the disciplinary
action. A hearing officer concluded that Pepe had knowledge of the false
alarm and that he did not restrain or report the incident. He was thus
found in violation of various department rules. A three-month suspension
was recommended. The fire fighter appealed the order asserting that he
was disciplined for offenses for which he was not formally charged. He
claimed that the disciplinary specifications never advised him of being
charged with failure to restrain or report a violation. The trial judge
agreed and concluded that Pepe had been found guilty of charges not included
in the specifications. He was ordered back to work with back pay. The department
appeals.
HELD: Under New Jersey law "plain notice" is the standard to be applied when |
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Worker's compensation |
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| Mottram was employed as a paramedic and an EMS supervisor. His duties included responding to emergency calls and rendering aid at the scene of accidents and other emergencies. Throughout his years he had been exposed to a variety of motor vehicle accidents, fires, stabbings, shootings, amputations, decapitations, and other events resulting in death and serious injury. In 1997, | ||||||||
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| however
he filed a worker's compensation claim alleging that he had suffered an
injury by accident. Mottram asserted that he had responded to a major fire
and after dealing with multiple burn injuries he was assigned to evaluate
victims who had escaped the fire. One of the victims, a five-year-old child,
asked about her stepmother. Mottram said he was "taken back" because he
had just pronounced the woman dead a few moments earlier. He claimed the
entire incident had immobilized him and caused him to begin suffering flashbacks
regarding some of the prior experiences. He exhibited signs of anxiety
and excessive sleeping. He sought psychological evaluation because he feared
he was suffering from post-traumatic stress disorder (PTSD). In support
of his worker's compensation claim several psychiatrists examined Mottram.
Generally, they concluded that he had PTSD. The worker's compensation board
rejected his claim on the grounds that the PTSD was not a "disease" but
rather a condition resulting from cumulative trauma. He was ineligible
under Virginia law for payments. Mottram appeals.
HELD: Under Virginia worker's compensation law two possible conditions exist: injury by accident and occupational disease. A "disease" is a condition that may arise from any number of causes, including trauma, that impairs the function of the body or any part thereof. The distinction between injury and disease lies in the obvious sudden mechanical or structural aspect of injury. Under Virginia law PTSD may be compensable as an injury by accident or as an occupational disease depending on how it develops. The threshold question in this case is whether Mottram's condition is an "injury" or "disease." If an "injury," then his right to compensation is barred by the commission decision rejecting his claim. If his condition is a "disease," it must be determined whether it is an occupational disease or an ordinary disease of life. A review of case precedent reveals that when PTSD results from ongoing stress it qualifies as a disease. Mottram's condition is a result of multiple stressful events. The worker's |
compensation board erred in designating it an "injury" and refusing to consider it as a disease. However, because PTSD is a condition that may develop from the general stresses of life and is not necessarily tied to occupational stress, it could be an ordinary disease of life not compensable under the law. Therefore, the compensation board must determine whether under the circumstances of this case Mottram's disease is compensable. Reversed for further determination. [Mottram v. Fairfax County Fire and Rescue, 542 S.E.2d 811 (Va. Ct. App. 2001)] | |||||||||
| Settlements | ||||||||||
Coronado, California |
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| Coronado fire fighters have agreed to a four-year contract extension that includes annual raises and enhanced retirement benefits. The fire fighters swap a slight reduction in pay raises in exchange for additional years and increased pension payments. The extension does not take effect until July 1, 2002 and runs until June 30, 2006. Under the pact the city's 27 fire fighters will reduce scheduled pay increase from 3.5 percent to 3 percent for the first three years of the agreement. The final year will see a 2 percent wage boost. Holiday pay will also be increased. Current pay for members of the Coronado Firefighters' Association ranges from a weekly base of $1,355 to $1,816. | ||||||||||
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