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CHAPTER 2 – LODD / SAFETY

Article 2-14

WA: GUARD YOUR FIRE POLE OPENINGS - SEATTLE FIREFIGHTER, SEVERELY INJURED WHEN HE FELL THROUGH UNGUARDED FIRE POLE HOLE - AWARDED $12.75 MILLION BY JURY

On October 23, 2009, the Seattle Times reported that the firefighter was on temporary assignment to Station 33 on Dec. 23, 2003, when he walked towards the second floor bathroom in the early morning hours from a dark bunk room, entered the wrong door, and fell through the pole hole to the concrete floor below. He fractured five vertebrae in his lower back, and had lung, bladder and liver injuries. This ended his career as a firefighter; his injuries prevented him from even doing light duty, clerical work. After a six-week trial, the jury awarded him $12.75 million. Lesson learned for all FDs – install metal guard that requires manual opening to the pole.

http://seattletimes.nwsource.com/html/localnews/2010120928_webfirefighter23m.html.

In many jurisdictions, however, workers compensation is your sole remedy against a public employer. Cities and other political subdivisions in many states enjoy governmental immunity. For example, in the civil litigation filed by the families of the nine firefighters who died in 2007 the Sofa Super Store fire in Charleston, SC, the trial judge in August, 2009 ruled that the plaintiffs may not add the City of Charleston as a defendant. This ruling came despite the fact that the FD was fined $42,100 by State OSHA officials for safety violations.

http://www.firerescue1.com/fire-products/incident-management/articles/311536-Charleston-Fire- Department-sofa-store-fined-for-deadly-June-fire/#.

http://www.postandcourier.com/news/2009/aug/18/judge-charleston-not-part-civil-lawsuit-sofa-store/.

In Ohio, for example, firefighters and other public employees have had little success in suing their public employers for damages arising out of workplace injuries. While employees working for a private employer may file "intentional tort"lawsuits seeking damages not reimbursed under workers comp., they face a very difficult burden of proof. The injured employee must prove not only that the employer knew of a dangerous workplace condition, but also that the employer knew that harm was substantially certain to occur.

For example, on May 23, 2009 in Helfinstine v. Plasticolors, 12 Ohio App.3d 430, 2009-Ohio-2442, the Court of Appeals for Ashtabula County upheld the dismissal of an "intentional tort"lawsuit filed by an employee who suffered severe chemical burns to his feat and ankles when the company failed to supply appropriate protective footwear. He was loading dangerous chemicals into a shipping container, wearing a Tyvek pair of coveralls from his neck to his ankles, two sets of gloves, and a respirator hood. The gloves were taped to his arms, and the Tyvek pants were taped to his ankles. He inadvertently kicked over a container which spilled onto his steel toed shoes and his socks. The lawsuit was dismissed because no other employees had ever suffered such injuries. The Court of Appeals quoted from a 2006 decision, "The absence of prior accidents strongly suggests a lack of knowledge by an employer that injury from a particular procedure or process was substantially certain to occur."

Legal Lessons Learned: Guard the poles to prevent inadvertent entry. Even if workers comp is the sole remedy, what a terrible way to end a career in the fire service.

Article 2-13

FIREFIGHTER CANCER - SOOT - IAFC TO PUBLISH ANOTHER ARTICLE

The IAFC (International Association of Fire Chiefs) has kindly agreed to publish a follow-up article by the author of this newsletter on new research being conducted by UC into the dangers of soot. This article will review the Firefighter Cancer / Wellness seminar we hosted at UC on July 12, 2009 (now posted at www.uc.edu/cas/firescience), and the on going research being conducted by UC Medical – Department of Environmental Health. On April 15, 2009, IAFC On Scene published our article, "Firefighter / EMT Safety, Health & Survival: Firefighter Cancers: Soot," http://www.iafc.org (search "Bennett").

SOOT: Fire Department should carefully review their practices on cleaning of turn out gear, and interior cabs of fire apparatus. See the presentation by District Chief Ron Texter, Cincinnati FD’s Health & Safety Officer, at the July 12, 2009 seminar: www.uc.edu/cas/firescience.

NEW RESEARCH: FDs are urged to watch the presentation by Dr. Erin N. Hayes, UC Medical at our July 12, 2009 seminar.

LEGAL ISSUES SEMINARS:

Contact us if your FD might be interested in seminar covering topics in my National Fire Academy course, "Political & Legal Foundations of Fire Protection." The host FD selects the topics to be covered – see 18 topics: www.uc.edu/cas/firescience (ON LINE BENNETT).

• Feb. 2009 – Palm Beach, FL and area FDs;
• Oct. 31, 2009 – Ohio Society of Fire Service Instructors, Columbus FD;
• Oct. 1, 2, 3, 2009 – Rancho Santa Fe FD, San Diego;
• Sept. 17, 2009 – Delhi FD and area FDs, Cincinnati;
• July 30, 2009 – Mason FD, Warren County, OH.

Article 2-12

OHIO: FIREFIGHTER CANCER / WELLNESS

 On July 12, 2009, UC Fire Science & Emergency Management Department hosted an officer development seminar, which is now posted on our web page: www.uc.edu/cas/firescience. FDs need to focus on the dangers of soot, including safety precautions before removal of SCBAs during overhaul, washing of turn out gear in dedicated washing machines at the station, cleaning apparatus interiors, and taking of showers after structure fires.

 A special "thank you" to Jim Burneka, Regional Director – Ohio, www.FireghterCancerSupport.org, and a City of Dayton firefighter. Jim arranged for two members of their organization who are cancer survivors to speak at our seminar, and now the support organization is sharing the seminar video nationwide.

Legal Lessons Learned: Get an annual physical. If you would like to contact any of the speakers, please send me an e-mail at lawrence.bennett@uc.edu

Article 2-11

HIGH-VISIBILITY SAFETY VESTS – EFFECTIVE NOV. 24, 2008 – LAST MINUTE EXCEPTION FOR EMERGENCY RESPONDERS DIRECTLY EXPOSED TO FLAME, FIRE, HEAT OR HAZARDOUS MATERIALS

 On Nov. 24, 2008, public safety officers, including firefighters and EMS must wear high-visibility vests when responding to an incident on a federal aid highway. On November 21, the Federal Highway Administration revised its regulations in response to fire industry safety concerns; the amended rule provides:

 "§ 634.3 Rule. All workers within the right-of-way of a Federal-aid highway who are exposed either to traffic (vehicles using the highway for purposes of travel) or to construction equipment within the work area shall wear high-visibility safety apparel. Firefighters or other emergency responders working within the right-of-way of a Federal- aid highway and engaged in emergency operations that directly expose them to flame, fire, heat,and/or hazardous materials may wear retroreflective turn-out gear that is specified and regulated by other organizations, such as the National Fire Protection Association. Firefighters or other emergency responders working within the right-of-way of a Federal-aid highway and engaged in any other types of operations shall wear high- visibility safety apparel." [FR Doc. E8–27671 Filed 11–20–08.]

The Interim Final Rule can be read at http://edocket.access.gpo.gov/2008/pdf/E8-27671.pdf.

One of the fire industry comments was submitted by Fire Chief Phil Stittleburg, Chairman of National Volunteer Fire Council. See his July 31, 2008 letter to U.S. Department of Transportation; www.nvfc.org

The original safety vest regulations went into effect for highway workers in the Manual on Uniform Traffic Control on November 24, 2004. See 23 CFR Sec. 634.1: Sec. 634.1,
Purpose: "The purpose of the regulations in this part is to decrease the likelihood of worker fatalities or injuries caused by motor vehicles and construction vehicles and equipment while working within the right-of-way on Federal-aid highways."

See CFR at http://www.gpoaccess.gov/cfr/index.html.

 The former regulation provided:
Sec. 634.2, Definitions. "High-visibility safety apparel means personal protective safety clothing that is intended to provide conspicuity during both daytime and nighttime usage, and that meets the Performance Class 2 or 3 requirements of the ANSI/ISEA 107-2004 publication entitled "American National Standard for High-Visibility Safety Apparel and Headwear.""

        ***

"Workers means people on foot whose duties place them within the right-of-way of a Federal-aid highway, such as highway construction and maintenance forces, survey crews, utility crews, responders to incidents within the highway right-of-way, and law enforcement personnel when directing traffic, investigating crashes, and handling lane closures, obstructed roadways, and disasters within the right-of-way of a Federal- aid highway."

See CFR at http://www.gpoaccess.gov/cfr/index.html.

LEGAL LESSONS LEARNED: Fire & EMS departments must comply with these new regulations. Safety vests should be placed on all apparatus that respond to highways, and they should be worn at all highway scenes.

Article 2-10

NEW MEXICO: FIREMAN’S RULE – NATURAL GAS PIPELINE EXPLOSION – FAMILY OF 12 KILLED - FIREFIGHTERS / EMS MAY PURSUE LAWSUIT AGAINST GAS COMPANY FOR EMOTIONAL DISTRESS – MUST PROVE INTENTIONAL WRONGDOING

On January 23, 2008, in Christopher Lee Baldonado, et al. v. El Paso Natural Gas Company, 143 N.M. 299, 2007 N.M. Lexis 697, the New Mexico Supreme Court held (5 to 0) that while the Fireman’s Rule continues to bar most lawsuits by responding firefighters/EMS, in this case the firefighters and EMS, while not personally injured, had to attend to severely burned adults and children.  They may therefore proceed to a jury trial on their claim of "intentional infliction of emotional distress."

On August 19, 2000, a high-pressure natural gas pipeline (thirty inches in diameter) exploded in the early morning hours near the Pecos River, south of Carlsbad, New Mexico.  A family of twelve were camping nearby.  The escaping gas ignited, creating a fireball that lead to a horror scene.  All twelve members of the extended family, including young children, were either immediately killed during the fire or died later of severe burns.

The plaintiffs are FF and EMS, with both paid and volunteer members of local FDs, who responded to the explosion.  They did not assist in putting out the fire, nor did they suffer any physical injuries.  Rather, they claim they suffered extreme emotional distress in witnessing the severe injuries suffered by the victims when the FF assisted them after the explosion.

In the lawsuit filed by the FF/EMS, they allege that the gas company had negligently designed and maintained the pipeline.  The gas company had been cited for prior safety violations, and had experience at least two prior gas pipeline explosions, one of which involved severe burns.  The lawsuit alleges that this particular pipeline, 50 years old, had similar problems to those involved in the prior two explosions.

The lawsuit was dismissed by the trial court, citing the Fireman’s Rule, which has been the law in New Mexico for past 20 years.  The rule prohibits firefighters from suing for damages sustained while responding to a fire, except where the owner or occupier fails to warn of a known danger, or misrepresents the nature of the hazards being confronted.

The FF/EMS appealed to the New Mexico Court of Appeals reversed and decided that a potion of the lawsuit may proceed; only on the claim of alleged "intentional misconduct" of the gas company.  The gas company appealed, and the New Mexico Supreme Court agreed to hear this appeal.  

The New Mexico Supreme Court held that the Fireman’s Rule should generally remain in effect in New Mexico, but the Court would allow a narrow exception – intentional misconduct claims.  The New Mexico Supreme Court noted that the Fireman’s Rule is based on a public policy rationale.  The rule it encourages the public to dial 911 and summons assistance when they need help, without concern that they would be sued by the responding FF.   

The New Mexico Supreme Court held, "We agree … that there should be a fireman’s rule."  "We take this opportunity, however, to clarify the rule’s definition and scope.  In doing so, we hope to avoid the necessity for myriad exceptions that other states have face."

Plaintiffs must prove:  (1) Defendant’s conduct was intentional or  (2) in reckless disregard of safety.  Recklessness is the intentional doing of an act with utter indifference to the consequences. 

Apply this standard to this case, the FF and EMS personnel may proceed to a jury trial, because:  

·       The natural gas pipeline company has numerous safety regulations, and therefore has a special relationship with emergency responders;

·        The natural gas company can be held liable if the plaintiff’s can prove the company’s  conduct was intentional or in reckless disregard of safety; and

·        FFs must prove their mental distress was extreme and severe, and there is a causal connection between Defendant’s conduct and FFs mental distress.

The Court concluded, "Plaintiffs have thus alleged sufficient facts to support each element of a claim of intentional infliction of emotional distress."   The court cautioned that the Plaintiff FF / EMS have a difficult burden of proof:   "Firefighters will always be subject to some emotional distress when responding to an emergency call.  We must determine whether Plaintiffs have alleged facts sufficient to show their distress could have exceeded the normal scope of distress inherent in their profession; ultimately, it will be up to a jury to determine whether Plaintiff’s stress did in fact exceed that scope."

Legal Lessons Learned:  Several states have modified the Fireman’s Rule, and a few states have abolished it, either by statute or court decision;  check the law in your state.

Article 2-9

Public Safety Officer Death Benefits - U.S. Department Drafts New Rules

September 8, 2008 was the deadline to send comments to the U.S. Department of Justice, on the draft rules they posted in the Federal Register on July 10, 2008. See proposed new rules, http://www.nvfc.org/files/documents/2008-PSOB-Regulations.pdf.

The PSOB program is a one-time payment (currently $303,064) for the families of fire, EMS, police and other public safety officers who die as a result of injuries suffered in the line of duty, or die of heart attacks or strokes sustained within 24-hours of engaging in non-routine line-of-duty activities. The PSOB also covers public safety officers who are permanently disabled as a result of a line-of-duty injury.

The PSOB was established by Congress by the Public Safety Officers’ Benefit Act of 1976, and is administered by the U.S. Department of Justice, Office of Justice Programs. The program has been the focus of much criticism, because of delays and denials of applications for benefits. Lawsuits and appeals have been filed, leading two four opinions in 2006 and 2007 by the U.S. Courts of Appeals for the Federal Circuit, and four additional opinions in 2006 and 2007 by the Court of Federal Claims.

In 2003, The Hometown Heroes Survivors Benefits Act of 2003 was enacted. This caused the Department of Justice overhaul its rules, effective on an interesting memorial date in history: September 11, 2006.

The DOJ has now processed nearly 200 cases since 9/11/06. The DOJ advises that its proposed new rules will "make it somewhat easier for affected claimants to establish their claims."

Here are some of the proposed changes and reasons offered by the DOJ.

• Heart Attack: The current definition "is too narrow to capture some types of sudden cardiac-related deaths." Section 32.3 would be expanded to cover other cardiac arrests, not just two current listed events, myocardial infarctions and sudden cardiac arrests.
• Prior heart disease: The "mere presence of cardio-vascular diseases/risk factors is not dispositive in analysis of what is ‘competent medical evidence to the contrary."
• Non-routine activities: "The PSOB Office’s approach to the term ‘routine’ has been changed and it would be helpful to have the regulation reflect that. *** This proposed rule would treat [a response to an emergency call] as ‘prima facie evidence’ that the action was non-routine."
• Frequency of call: The proposed regulation has "language reflecting that the frequency with which the activity is performed shall not be the deciding factor in determining whether an activity is ‘routine’" [including frequent police responses to domestic violence calls].
• Travel for public safety activity: "Travel in response to a specific request by the employer to perform public safety activity would be treated the same as response to a fire -, rescue-, or police emergency currently is."
• Trainers: Coverage would be expanded to cover trainers in official training programs; "currently only participants who are trainees are covered."
• Intoxication: "The proposed rule would provide additional evidentiary mechanisms for evaluating potentially-disqualifying facts relating to whether or not a public safety officer was intoxicated at the time of death or injury."

Legal Lessons Learned: the PSOB program appears to be improving.

Article 2-8

Mother's tribute to Captain Robin Broxtermen

Article 2-7

TEXAS – Arsonist Started Fire In Back Of Nightclub - Guilty Of Felony Murder For Death of Houston Firefighter

On February 15, 2007, in Jeremy Steven Robinson v. The State of Texas, 236 S.W.3d 260; 2007 Texas App. LEXIS 1102, the Court of Appeals of Texas held that Robinson was properly convicted by a jury of felony murder, in the death of a Houston FF (unfortunately jury imposed life imprisonment, not death). See photo of scene, and read details of fire fighting efforts in NIOSH Firefighter Fatality Investigation Report No. 2004-14, http://www.cdc.gov/niosh/fire/reports/face200414.html

Robinson and two friends, including James Guervara, were involved in a fraudulent check-writing crime ring. Guervara was also in the middle of a nasty a divorce, and child-custody battle with his wife, Ruiz. She worked at the El Festival Ballroom, an after-hours club in Northwest Houston (club was open 4 pm – 7 am). On Sunday, April 4, 2004, Robinson and another bought gas cans and black T-shirts at a Wal-Mart. They met up with Guervara and others and went to a gas station where they were videotaped buying $60 worth of gas. At 5 am they drove to the El Festival Ballroom, saw cars parked in front. Guervara poured gas over the back of the building and Robinson lit the gasoline trail on fire.

Guervara’s wife went to the bathroom inside the El Festival Ballroom, and smelled the heavy odor of gasoline. She went outside, observed the fire in the rear of the building, called 9-1-1 on her cell phone, and ran back in to warn about 50 customers and staff.

The Court of Appeals described the tragic fire scene. “ In response to Ruiz's 9-1-1 call reporting a fire, firemen from Station 50 of the Houston Fire Department arrived and heard customers standing outside say that there were still people inside. Captain James Walterbach decided to do a ‘fast attack,’ in which he and two other firefighters would enter the building and attempt to extinguish the fire and to rescue people who might be trapped inside. Thus, Captain Walterbach, Larry Roberts, and Kevin Kulow entered the building. The interior was dark and smoky, and there was no visibility. The fire hose got tangled on something inside, and the firefighters had to exit. The three firemen entered the building a second time and shot water on different areas to cut down on the smoke and to cool off the building. Captain Walterbach heard on his radio that the fire had vented through the roof, and he considered this unusual. He ordered his men out, but his air regulator malfunctioned, and he passed out immediately afterward. Kulow got separated from the others and was left inside. Roberts made it out. Another firefighter, Abel Sarabia, rescued Captain Walterbach, but could not find Kulow. As soon as Sarabia got out, the building experienced a flashover, which is the point at which everything inside reaches ‘ignition point’ at the same time. At that point, it was impossible to rescue anyone inside. The firefighters could not re-enter the building, and Kulow remained missing. When the fire was under control, firefighters re-entered the building and found Kulow's body; he had died from burning and not from smoke inhalation. Arson investigators determined that 47 samples of debris taken from the scene of the fire all tested positive for gasoline, which indicated a case of arson.” [Footnotes omitted.]

The Texas Court of Appeals upheld Robinson’s conviction of felony murder even though the death was of someone not in the building at the time he set the fire. “ At the outset, it might be tempting to assume that, if one caused the death of someone by setting on fire an occupied building, the death would most likely have been caused to an occupant of the building. Nevertheless, in a case from this Court, a defendant's conviction for felony murder of non-occupants of a building was upheld based on the defendant having set fire to the building. Torres v. State, Nos. 01-01-00999-CR & 01-01-01000-CR, 2002 Tex. App. LEXIS 9114, 2002 WL 31838694, at *3-5 (Tex. App.--Houston [1st Dist.] 2002, pet. ref'd) (not designated for publication). The argument that we rejected in Torres was that starting a fire in an empty, freestanding building is not dangerous to human life. 2002 Tex. App. LEXIS 9114, [WL] at *3-5. In Torres, two firefighters lost their lives fighting a fire set by the defendant as he was leaving an unoccupied restaurant. 2002 Tex. App. LEXIS 9114, [WL] at *2.”

The court continued, “It has long been the law that one who commits arson may be found guilty of the murder of a person who died inside the house or by fighting the fire, even though the arsonist did not intend to cause any personal injury by his act. The basis for these decisions is that burning a building within a city often produces certain dangerous consequences, such as (1) firefighters' (or good Samaritans') responding to try to save any occupants and to extinguish the fire or (2) other nearby buildings catching on fire. In these situations, the burning of a building "thereby causes" the death of (1) firefighters (or good Samaritans) who respond to fight the fire, whether or not they actually enter the building and become occupants, or (2) occupants of nearby buildings that catch on fire due to their proximity to the targeted building.”

“Accordingly, we reject appellant's argument that the only deaths that can be ‘thereby caused’ by setting fire to an occupied building are those of the occupants of that building. Furthermore, appellant does not challenge the sufficiency of the evidence proving that he intended to burn an occupied building and that the fire that he started caused the death of Kulow. Thus, having rejected appellant's argument that Kulow had to have occupied the building at the time of appellant's conduct, we overrule appellant's first point of error.” [Footnotes; case citations omitted.]

Legal Lessons Learned: Those who commit arson may be convicted of felony murder for death of occupants, FF and others. FD safety officers / incident commanders should share lessons from this NIOSH report.

Article 2-6

“Larry’s Legal Lessons: Volunteer’s Family Awarded Money after 9/11 Death; Parents battered for justice for years.” Seymour Winuk v. United States, U.S. Court of Federal Claims, June 20, 2007. Article published 7-23-07, in www.firehouse.com; to read article go to this web site and Search, “Bennett.”

Article 2-5

PROPANE EXPLOSION KILLED TWO FF IN JAN. 2007, WEST VIRGINIA - U.S. CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD INVESTIGATION - INVITE LOCAL PROPANE COMPANY TO YOUR FD TO DISCUSS SAFETY HAZARDS OF PROPANE

The U.S. Chemical Safety and Hazard Investigation Board (CSB) is conducting an investigation into the January 30, 1997 explosion at the Little General Store in Ghent, WV, which killed four people (including a responding FF) and seriously injured five others, http://www.csb.gov. The CSB is an independent federal agency charged with investigating chemical accidents. This report should be a “must read” for every FF called to a leaking propane tank.

Their Press Statements of Jan. 30, February 1, and Feb. 15, 2007 give some insight into the risks of propane leaks. The store had decided to change gas suppliers, and on the morning of Jan. 30, a technician for Appalachian Heating was preparing to switch propane service from the old propane tank of Ferrellgas Company to the new tank of Thompson Gas Company. The old tank was located near the rear wall of the store, and the new tank was 10 feet away.

At some point in the gas transfer process, there was an uncontrolled leak of propane gas from the old tank. The technician could not stop it, so he called 911 at 10:40 a.m. Two EMTs arrived first by ambulance, soon joined by two volunteer FF from Ghent Volunteer FD who arrived in separate vehicles. Another Appalachian Heating technician showed up to try and stop the leak.

Firefighters observed a “billowing vapor” or mist near the old tank. The mist was traveling along the ground. They recognized the dangers, and warned store employees and others to get out immediately. Unfortunately, some took their time, with one employee hanging a sign on the front door, “Closed due to gas leak.”

At 10:53 a.m. there was a massive explosion, 13 minutes after the initial 911 call. It killed the two Appalachian technicians, and two emergency responders: Captain Frederick Burroughs, age 51, and FF / EMT Craig L. Dorsey, age 21 (to read their bios, see http://www.usfa.dhs.gov, search “Firefighter Fatalities” then go to Fatality Notices).

Legal Lessons Learned: Do not wait for the final report to issue; invite a local propane company to come to your FD and conduct training, and provide every FF with a copy of the fatality notice of Captain Burroughs and FF / EMT Dorsey.

Article 2-4

SAFETY - OHIO SUPREME COURT HOLDS THAT EMPLOYEE WHO WILLFULLY AND REPEATEDLY IGNORED SAFETY WARNING CAN LOSE WORKERS’ COMP TEMPORARY TOTAL BENEFITS

[UPDATE: On 9/27/07, the Ohio Supreme Court granted David Gross’ request that the case be reconsidered. Their Dec. 27, 2006 decision, summarized below, may be modified or even overturned.]

[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]

Article 2-3

OHIO – FIREFIGHTER WITH PRE-EMPLOYMENT RESPIRATORY AILMENT IS NOT ENTITLED TO PRESUMPTION THAT MEDICAL PROBLEMS OCCURRED ON DUTY

On Dec. 27, 2006, in State ex rel. Worrell v. Ohio Police & Fire Pension Fund, 112 Ohio St.3d 116, 2006-Ohio-6513, the Ohio Supreme Court (7 to 0) held that the statutory presumption in Ohio Rev. Code 742.38 (D) that respiratory ailments of firefighters are incurred while performing official duties did not apply in this case because a pre-employment physical revealed evidence of the ailment. The Ohio Police & Fire Pension Fund denied his application for a medical disability, and the Ohio Supreme Court concurred in lower court decisions refusing to overturn the Pension Fund.

[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]

Article 2-2

PUBLIC SAFETY OFFICERS’ DEATH BENEFITS – REVISED DEPARTMENT OF JUSTICE REGULATIONS IMPLEMENT CONGRESSIONAL INTENT TO BROADEN COVERAGE

 Effective 9/11/06, the U.S. Department of Justice, Bureau of Justice Assistance regulations implement Congressional amendments to the 1976 Public Safety Officers’ Benefit Act, and broaden the definition of the term “firefighter” and “rescue squad or ambulance crews.” As of October 1, 2006, the PSOB payment has been increased to $295,194 for fiscal year 2007. These statutory amendments and new regulations can be read at http://www.ojp.usdoj.gov/BJA/grant/psob/psob_main.html.

The 2006 regulations list the following kinds of public safety officers:

Law enforcement officers;

• Firefighters;
• Chaplains;
• Members of rescue squads or ambulance crews; and
• Disaster relief workers.

“Firefighter” under the new regulations means an individual who “(1) Is trained in - (i) Suppression of fire; or (ii) Hazardous materials emergency response; and (2) Has the legal authority and responsibility to engage in the suppression of fire, as (i) An employee of the public agency he serves, which legally recognizes him to have such (or, at a minimum, does not deny (or has not denied) him to have such); or (ii) An individual otherwise included within the definition provided in the Act, 42 U.S.C. 3796b(4).” This U.S. Code provision defines “firefighter” as “includes an individual serving as an officially recognized or designated member of a legally organized volunteer fire department.”

“Rescue Squad or Ambulance Crew” is defined under the new regulations as “members who are rescue workers, ambulance drivers, paramedics, health-care responders, emergency medical technician, or similar workers, who – (1) Are trained in rescue activity or the provision of emergency medical services, and (2) As such members, have the legal authority and responsibility to (i) Engage in rescue activity; or (2) Provide emergency medical services.

“Disaster relief worker” is not further clarified in the regulations, other than to say it is any individual who meets the definition provided by Congress in 42 U.S.C. 3796b(9)(B) or (C). This statute states in 42 U.S.C. 3796b(9):

"public safety officer" means—

(A) an individual serving a public agency in an official capacity, with or without compensation, as a law enforcement officer, as a firefighter, as a chaplain, or as a member of a rescue squad or ambulance crew;

(B) an employee of the Federal Emergency Management Agency who is performing official duties of the Agency in an area, if those official duties—

(i) are related to a major disaster or emergency that has been, or is later, declared to exist with respect to the area under the Robert T. Stafford Disaster Relief and Emergency Assistance Act; and

(ii) are determined by the Director of the Federal Emergency Management Agency to be hazardous duties; or

(C) an employee of a State, local, or tribal emergency management or civil defense agency who is performing official duties in cooperation with the Federal Emergency Management Agency in an area, if those official duties—

(i) are related to a major disaster or emergency that has been, or is later, declared to exist with respect to the area under the Robert T. Stafford Disaster Relief and Emergency Assistance Act; and

(ii) are determined by the head of the agency to be hazardous duties.

Heart Attack / Strokes: The new regulations also implement the 2003 Congressional expansion of death benefits to public safety officers who die of a heart attack or stroke within 24 hours of engaging on duty in “nonroutine stressful or strenuous” activity, or while participating in a training exercise involving nonroutine stressful or strenuous activity. 42 U.S.C. 3796, Section 1201. The International Association of Fire Chiefs issued a press release in August, 2006 announcing they were pleased the regulations require a case-by-case review by the Department of Justice concerning prior medical condition of those who die heart attacks and strokes within 24 hours.

Legal Lesson Learned:Since the PSOB benefits extend only to those rendering services “in an official capacity,” fire & EMS departments should establish paperwork which “officially appoints” personnel, including volunteers. Heart attacks are a major cause of LODDs, and fire & EMS departments should consider implementing annual physicals.

Article 2-1

WORN TIRE ON LIFE SQUAD - DEATH OF FLORIDA EMT

On July 14, 2006, NIOSH issued its Fire Fighter Fatality Investigation Report (F2005-12) on the death of a 22-year-old EMT, www.cdc.gov/niosh/fire/reports/face200512.html . The report focused on the rear tires, which showed “excessive wear”, with “wear bars” and “tread indicators” visible (see photos of the tires in the report). This report and its dramatic photos of the Life Squad wrapped around a tree should be “mandatory reading” for all fire and EMS personnel who perform daily checks of fire and EMS vehicles.

NEWSLETTER IS NOT PROVIDING LEGAL ADVICE; Posted by UC solely as information and for the benefit of students.

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