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Compensation for Firefighters Injured in the Line Of Duty

Interview with Curt Varone

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LOD Injury? How to Be Properly and Fully Compensated

Dear Firefighter: 

There is a reason you may not have immediate access  to financial compensation if you are injured in the line  of duty. Or on duty. It is because 99% of the time, the money would be paid by some insurance company,  and if you don’t realize it from your life’s experience, let  me share: insurance companies are not your friends.  Insurance companies deny, delay, stall and deny again. 

You have seen the horror. You have saved many people  who were experiencing the horror. Burn injuries can  be devastating. The average person injured, of course,  can make claims for compensation. Medical bills alone  for treatment of burn injuries can be exorbitant, and  life-long. 

If you are injured however, in 32 “bad” states (the  “good” states are: Alabama, Colorado, Florida, Maine,  Massachusetts, Michigan, Minnesota, Montana,  New Jersey, North Carolina, North Dakota, Oregon,  Pennsylvania, South Carolina, Vermont, West Virginia,  and Wyoming) a law exists that stands in the way of  your chance to be fully and fairly compensated. 

The law in these “bad” states is referred to as the  Firefighter’s Rule. The Rule can apply to police and  other emergency personnel. The Rule is a defense to  any lawsuit you might file, thus blocking your recovery  of damages or compensation from a negligent party,  the party whose behavior created the problem for  which you responded. A house fire is an easy example.  You can’t typically prevail against the homeowner in  these Firefighter’s Rule states. 

The primary justification for the rule is the legal  concept of “assumption of the risk.” If you jump off a  10-story building, you assume the risk of breaking your  leg or dying. The analysis for firefighters is that you  enter a burning building knowing you can be injured,  but you assume that risk. Yes indeed! But that you are  trying to save life and property doesn’t excuse Sally  whose negligence started the fire. This “assumption of the “risk” justification is the primary one used by those  protecting insurance companies. 

The Firefighter’s Rule is a bad one. 

Consider this example: 

Sally negligently causes a fire in her home. You and  your crew rush in to put out the fire and save the  baby upstairs. The flames engulf the home, and while  you succeed in saving the baby and Sally, you suffer  second and third-degree burns, requiring you to be  off work for an extended period. You make a claim for  Worker’s Compensation benefits. Slowly the reality of the world of insurance sets in: the doctors and  nurses and other clinicians being paid by the Worker’s  Compensation Insurance are being told to hurry up  with your care, to release you back to work, and to  stop prescribing needed treatment. You are stunned.  You still need care, and you can’t get back on the job.  You are losing money not working as benefits from  Worker’s comp are cut off. You are waiting for the  court or administrative hearing to contest the ruling  cutting you off.  

Regardless of the extent of your injury, your wellbeing  is being compromised. The more serious your injury  is, you may well be in enormous and constant pain,  your normal grounded and strong personality may be  taking a hit, and psychological and emotional trauma  may be compounding your situation. 

In 18 “good” states, you can make a claim for  compensation against Sally, and if you win her  homeowner’s insurance company would have to step  up and pay. In 32 states, insurance companies, most  of the time, are basically immune and don’t have to  contribute a penny to compensate you. 

Is the Firefighter’s rule fair to you? Not close, unless  you still believe in the Easter Bunny.  

You are a hero. An angel. A saint. There are not  adequate words in the English language to properly  identify how unbelievable you are. Our society calls  sports stars heroes. Great. They scored extra runs, ran  extra fast, hit an amazing number of “threes.” These  athletes’ off-the-court contributions are sometimes  amazing and should be admired far and wide.  These folks should be applauded. But they pale in  comparison to who you are and what you do every day. And then, in 32 states the insurance companies  have been successful in doing what they do –  protecting their money – by lobbying and convincing  your state’s legislature to provide a shield for Sally if  you file a lawsuit against her. 

If you are in a state that enforces the “ Firefighter’s  Rule” your ability to succeed with a claim against Sally  for her negligence can be submarined. She forgot  about a candle on her nightstand next to her bed and  the flame caught the curtains. You know the rest of  that story. Oh yes, you got hurt. 

The Firefighter’s Rule says you assumed the risk of  your injury. It says you knew the risk of your job and  well, that you got hurt, sorry. 

The Rule does not make sense. Our system of laws  in the United States understands a basic concept:  if someone causes another harm, they should be  accountable. But not in 32 states for firefighters,  police or emergency responders. We understand why  the Rule exists. Insurance. Avoid paying claims by  lobbying and preventing the lawsuit from ever going  anywhere.

The Firefighter’s Rule Might Be Overcome

Thank heaven for you and your crew. You put your  life on the line because somebody made a mistake.  Making a claim against Sally for her mistake might  not go far in Firefighter’s Rule states because the  insurance lobby is strong and does not want to have  to compensate you. It is always about the money. 

Eighteen states think you deserve a shot at  compensation. They have discarded the Rule and  claims against Sally in those states can be successful  without having to fight the defense of the Rule. Sally’s  homeowner’s insurance company in these states may  end up paying you. They should. That is why Sally  has insurance. That is why she pays premiums. In case  something happens, they pay. That is the deal: she  pays premiums, which her insurer gladly accepts,

and  then, if something happens, they are supposed to pay. 

There is hopeful news in the 32 states where the Rule  exists. Like everything else in the law, there are always  exceptions. There are ways to get Sally’s insurance  company to pay despite the Rule. 

Following are some of the clear, notable exceptions.  

Exception: If Sally knew something or could have  reasonably prevented “further” harm to you, or if she  misrepresented the extent of danger, or if Sally failed  to warn you of known or hidden dangers Sally and her  insurer might be liable. 

Example: the stairs leading upstairs won’t  hold your weight. Sally doesn’t tell you and you fall  through the stairs and break your leg, leading to your  immobility, whereupon you suffer extensive burns. 

Another example: Sally fails to warn of a  broken gas line. 

Another example: Sally has a big hole  

intentionally covered with leaves in her front yard, to  harm trespassers or other uninvited visitors on her  property, and she fails to tell you. 

Exception: If Sally acted in a manner that was “wilful,  wanton or intentional” Sally and her insurer might be  liable. 

Example: Sally, not expecting the house to go  up in flames, intentionally throws a cigarette into the  living room drapes because she is mad at her husband.  Sally and her insurer might be liable. Note however  that most insurance companies deny coverage in  circumstances of intentional acts. Sally, for her part,  would never say that she intended to burn the house  down. 

Exception: If a fire erupted in Sally’s home because  there were violations of laws or ordinances, such  as building codes, Sally and her insurer might be  liable. Or, perhaps a builder or repairman might be  responsible. 

Example: An electrician comes to Sally’s home  to do repairs and negligently overloads a

wall socket.  Here, there could be a real legal battle regarding  Sally’s responsibility, but a claim will exist and likely  compensation can be recovered. 

Exception: While not a real “exception” to the Rule, it  is worth detailing that the Firefighter’s Rule would not  apply in situations where a third party, in the examples  above – not Sally – caused the injuries but did not  cause the fire. 

Example: Sally’s neighbor rushes into the  burning house to save his dog and knocks you over,  you hit your head and pass out and get burned. You  have a viable claim against the neighbor. 

Now, for those of you who enjoy the deeper dive of  the law for this concept, here are two of the “good”  states and how they addressed the rule: New Jersey  and Oregon got rid of the Firefighter’s Rule. 

(If you don’t want to read this NJ statute, no problem,  it says you can file a lawsuit against Sally for her  negligence in causing the fire that ultimately caused  your injuries). 

New Jersey Code 

2A:62A-21. Additional right of action, recovery  

  1. In addition to any other right of action or recovery  otherwise available under law, whenever any law  enforcement officer, firefighter, or member of a duly  incorporated first aid, emergency, ambulance or  rescue squad association suffers any injury, disease or  death while in the lawful discharge of his official duties  and that injury, disease or death is directly or indirectly  the result of the neglect, willful omission, or willful or  culpable conduct of any person or entity, other than  that law enforcement officer, firefighter or first aid,  emergency, ambulance or rescue squad member›s  employer or co-employee, the law enforcement officer,  firefighter, or first aid, emergency, ambulance or  rescue squad member suffering that injury or disease,  or, in the case of death, a representative of that law  enforcement officer, firefighter or first aid, emergency,  ambulance or rescue squad member›s estate, may  seek recovery and damages from the person or entity  whose neglect, willful omission, or willful or culpable  conduct resulted in that injury, disease or death. My  comment: Intelligent legislators. 

Next, here is a short summary of a court decision  from Oregon. The case means you can file a lawsuit  against Sally for her negligence in causing the fire that  ultimately caused your injuries. 

In the case of Christensen v. Murphy, 678 P.2d 1210  (1984) the Oregon Supreme Court allowed a police  officer’s family to make claims against Murphy, whose  negligence resulted in a series of events that lead to  Christensen’s death. The Court in its ruling, in reversing  

the prior law in Oregon, said that the (Firefighter’s) rule  is not sustainable under implied assumption of risk  analysis.  

My comment: Intelligent judges.

Another Way To Seek Compensation – Product Liability Claims

Forgetting Sally’s potential negligence if you get  injured trying to save her cat in her burning house,  there is still potential to recover compensation for  your injuries: you may have a “products liability” claim  against any number of business entities that put an  unsafe product into the world. 

Claims can be made if any of the following 3 facts or  scenarios can be shown: 

  1. you were injured because there was a defective  product design – a product is defective because of  a design defect if it is in a condition “unreasonably  dangerous” to the user or a person in the vicinity  of the product and the product is expected to  and does reach the user without substantial  change affecting that condition. A product is  “unreasonably dangerous” because of its design if  the product fails to perform as safely as an ordinary  consumer would expect when used as intended or  when used in a manner reasonably foreseeable by  the manufacturer and/or the risk of danger in the  design outweighs the benefits. 
  2. you were injured because a product had  manufacturing defects – you, the plaintiff, must  plead and prove: (1) the Defendant’s relationship  to the product in question; (2) the defective and  unreasonably dangerous condition of the product;  
    1. the existence of a causal connection between the  product’s condition and your injuries or damages. 
    2. you were injured because there were no or  inadequate warnings and/or labels — you show  that the product or products had some sort of  inherent danger and that the manufacturer of  those products had a legal duty to warn of this  danger but failed to do so. 


    Here are some examples of “product liability” claims  that might be made: 

    • Dishwasher defects that cause fires  
    • Alarm/security system failures that allow for the  spread of a fire 
    • Furnace and boiler part defects that result in fires • Shredders, loaders and other large equipment  failures that cause fires 
    • Washer and dryer failures that cause fires  • Defective product warnings that cause fires or  explosions  
    • Crane engine and part failures that cause fires  • Electrical panel failures that cause fires • Defective solvents and other cleaning products  that cause spontaneous combustion fires 
    • Defects in lithium batteries that lead to fires • Defects in utility company equipment that leads to  fires or explosions 
    • Solar panel defects that result in fires

Conclusion

While there is never any guarantee about results, with  a proper and thorough investigation, there is usually  a way to get around the Firefighter’s Rule or develop  and prove a products liability case. 

If you suffered an injury that was not your fault, the  law in every state provides for compensation. While  exact provisions may vary, generally, you are entitled  to be compensated for the cost of all of your medical  bills, both for physical and psychological injuries, for  lost wages, for disruption of your life, for scarring,  for permanent problems, for pain, for all measure of  suffering, and for any and all of the other “negative”  consequences that can be shown.

Final Thoughts

Thank you for reading this paper. My goal in preparing  it was to provide information to you and the world of  other heroes in which you dance because your work  deserves every possible benefit available, including  the benefit of compensation if you are injured. 

In the event of the ultimate tragedy, that a firefighter  dies in the line of duty, the firefighter’s family also  deserves every possible benefit. I have therefore  included here a resource (see next page) copied  exactly from the National Fallen Firefighters  Foundation’s website. 

I hope this is something your family never has to  confront, but, give this to them, in case heaven forbid,  something happens to you.

Please be safe and thank you for your service.

Handling a Line-Of-Duty Death

THIS INFORMATION HAS BEEN COPIED VERBATIM FROM THE NATIONAL FALLEN FIREFIGHTERS FOUNDATION, WITH EXPLICIT PERMISSION

If a firefighter from your department dies in the line of duty, do you know what to do?

Here are important steps that a department needs to take to help the firefighter’s family,  members of the department, and the community. 

  1. Notify the family of the fallen firefighter. Once you are sure this has happened, get  information to members of the department, local and state officials. 
  2. Notify the National Fallen Firefighters Foundation via the 24-hour line-of-duty death  hotline at 866-736-5868. Through a collaborative effort with the Department of  Justice, the Foundation has developed resources and training to help establish state  and regional Local Assistance State Teams (LAST) to assist in the event of a line-of duty death. The Foundation can put you in touch with your state Team Coordinator for  invaluable assistance with funeral planning, benefits filing, and much-needed support  for the family and the department. 
  3. Contact the Department of Justice’s Public Safety Officers’ Benefits (PSOB)  Program. When you report a firefighter death, have basic information available on the  incident, your department, and the fallen firefighter and his or her immediate next-of kin. PSOB offers a lump sum death benefit to survivors of public safety officers who die  in the line of duty from a traumatic injury or heart attack. There are many procedures  that need to be followed. Call PSOB even if you are not sure whether your firefighter’s  family will qualify for benefits under this program. 
  4. Use a checklist to determine what needs to be done immediately, before and during  the funeral, and longer term. Be sure you know what the requirements are in your  jurisdiction for conducting an autopsy. 
  5. If you would like to speak directly with another senior fire officer who has lost a  firefighter in the line of duty and can offer some professional and personal support,  please contact the Foundation. 
  6. Find out what benefits exist for survivors of fallen firefighters in your state. Then  start contacting the state officials for each program. Benefits may include lump-sum  death payments, workers’ compensation, funeral benefits, pensions and retirement  programs, scholarships, and non-profit/private support. 
  7. At the family’s request, begin preparations for a fire service funeral or memorial  service. A comprehensive Funeral Guide will help you plan a fitting tribute. Download  a copy or call the Foundation at (301) 447-1365 to have one sent immediately. 
  8. Let the family know about organizations, such as Wilbert that provide funeral services  and Lighthouse Uniform Company that provide fire service uniforms free of charge.

I am a Plaintiff ’s trial attorney handling burn injury cases nationwide. I am the author of Twice Burned, a critically acclaimed book describing compensation rights for burn survivors, and describing compensation rights for burn survivors, and A Handbook for Caregivers of Patients with Burn Injuries, Handbook for Caregivers of Patients with Burn Injuries, describing “Compassion Fatigue” and information to help deal with that issue. 

I am a proud member of the American Burn Association, The American Justice Association’s Burn Injury Group, and the Washington, D.C. Firefighter’s Burn Foundation. 

Finally, I am the founder of National Burn Prevention Day (www.nationalburnpreventionday.org), an effort to secure donation funding for fi re departments, burn camps and other donation funding for fi re departments, burn camps and other organizations that seek to either prevent burn injuries or help organizations that seek to either prevent burn injuries or help those who have been injured. The website also is a resource for all  measure of safety and burn prevention tips. 

I can be reached at 833-MY-BURNS and my website is  www.nationalburnattorney.com.