A. As used in this section, "firefighter" means a person who is employed as a full-time non-volunteer firefighter by the state or a local government entity and who has taken the oath prescribed for firefighters.
B. If a firefighter is diagnosed with one or more of the following conditions after the period of employment indicated, and the condition was not revealed during an initial employment medical screening examination or during a subsequent medical review pursuant to the Occupational Health and Safety Act [50-9-1 to 50-9-25 NMSA 1978] and rules promulgated pursuant to that act, the condition is presumed to be proximately caused by employment as a firefighter:
(1) brain cancer after ten years;
(2) bladder cancer after twelve years;
(3) kidney cancer after fifteen years;
(4) colorectal cancer after ten years;
(5) non-Hodgkin's lymphoma after fifteen years;
(6) leukemia after five years;
(7) ureter cancer after twelve years;
(8) testicular cancer after five years if diagnosed before the age of forty with no evidence of anabolic steroids or human growth hormone use;
(9) breast cancer after five years if diagnosed before the age of forty without a breast cancer 1 or breast cancer 2 genetic predisposition to breast cancer;
(10) esophageal cancer after ten years;
(11) multiple myeloma after fifteen years;
(12) hepatitis, tuberculosis, diphtheria, meningococcal disease and methicillin-resistant staphylococcus aureus appearing and diagnosed after entry into employment; or
(13) posttraumatic stress disorder diagnosed by a physician or psychologist that results in physical impairment, primary or secondary mental impairment or death.
C. The presumptions created in Subsections B and D of this section may be rebutted by a preponderance of evidence in a court of competent jurisdiction showing that the firefighter engaged in conduct or activities outside of employment that posed a significant risk of contracting or developing a described condition.
D. If a firefighter is diagnosed with a heart injury or stroke suffered within twenty-four hours of fighting a fire, while responding to an alarm, while returning from an alarm call, while engaging in supervised physical training or while responding to or performing in a non-fire emergency, the heart injury or stroke is presumed to be proximately caused by employment as a firefighter. The presumption created in this subsection shall not be made if the firefighter's employer does not have a current physical training program and the firefighter does not have a current medical screening examination or review pursuant to the Occupational Health and Safety Act and rules promulgated pursuant to that act allowing participation in that program.
E. When any presumptions created in this section do not apply, it shall not preclude a firefighter from demonstrating a causal connection between employment and condition or injury by a preponderance of evidence in a court of competent jurisdiction.
F. Medical treatment based on the presumptions created in this section shall be provided by an employer as for a job-related condition or injury unless and until a court of competent jurisdiction determines that the presumption does not apply. If the court determines that the presumption does not apply or that the condition or injury is not job related, the employer's workers' compensation insurance provider shall be reimbursed for health care costs by the medical or health insurance plan or benefit provided for the firefighter by the employer.
History: Laws 2009, ch. 252, § 1; 2019, ch. 118, § 1.
ANNOTATIONSThe 2019 amendment, effective June 14, 2019, added posttraumatic stress disorder to the list of conditions presumed to be proximately caused by employment as a firefighter; replaced "disease" with "condition" throughout the section; in Subsection A, added Paragraph A(13); and in Subsection F, replaced each occurrence of "illness" with "condition".
Statutory presumption that the development of a listed disease is proximately caused by employment as a firefighter. — By enacting the firefighter occupational disease statute, the legislature adopted a statutory presumption that the development of the listed disease by a firefighter is linked to his or her service in that role under certain circumstances and exempts firefighters in certain situations from the burden of establishing a causal connection between their disease and their duties as a firefighter; when a firefighter establishes that he or she is suffering from one or more of the diseases listed in this section and the firefighter served the requisite number of years, subject to any other requirements under this section, the firefighter is entitled to the rebuttable presumption that the disease was caused by his or her employment as a firefighter. Di Luzio v. City of Santa Fe, 2015-NMCA-042.
Where worker was employed as a firefighter for the City of Santa Fe for twenty-one years and was diagnosed with mantle cell non-Hodgkin's lymphoma twelve years after his service as a firefighter, worker met the statutory prerequisites to be entitled to the presumption that his disease was the result of his years of service as a firefighter, and was not required to establish that his disease was causally connected to his employment. Di Luzio v. City of Santa Fe, 2015-NMCA-042.
Test for retroactive application of the statute. — The relevant inquiry for determining whether this section was being applied retroactively or prospectively is not whether the firefighter was employed as a firefighter at the time of the statute's enactment, but rather whether this section was in existence at the time the firefighter filed for disability benefits. Di Luzio v. City of Santa Fe, 2015-NMCA-042.
Where worker was employed as a firefighter for the city of Santa Fe for twenty-one years and was diagnosed with mantle cell non-Hodgkin's lymphoma twelve years after his service as a firefighter, and where worker filed for disability benefits two years after this section's enactment, application of the statute was not retroactive. Di Luzio v. City of Santa Fe, 2015-NMCA-042.