65.2-402 - Presumption as to death or disability from respiratory disease, hypertension or heart disease, cancer.
§ 65.2-402. Presumption as to death or disability from respiratory disease,hypertension or heart disease, cancer.
A. Respiratory diseases that cause (i) the death of volunteer or salariedfirefighters or Department of Emergency Management hazardous materialsofficers or (ii) any health condition or impairment of such firefighters orDepartment of Emergency Management hazardous materials officers resulting intotal or partial disability shall be presumed to be occupational diseases,suffered in the line of duty, that are covered by this title unless suchpresumption is overcome by a preponderance of competent evidence to thecontrary.
B. Hypertension or heart disease causing the death of, or any healthcondition or impairment resulting in total or partial disability of (i)salaried or volunteer firefighters, (ii) members of the State PoliceOfficers' Retirement System, (iii) members of county, city or town policedepartments, (iv) sheriffs and deputy sheriffs, (v) Department of EmergencyManagement hazardous materials officers, (vi) city sergeants or deputy citysergeants of the City of Richmond, (vii) Virginia Marine Police officers,(viii) conservation police officers who are full-time sworn members of theenforcement division of the Department of Game and Inland Fisheries, (ix)Capitol Police officers, (x) special agents of the Department of AlcoholicBeverage Control appointed under the provisions of Chapter 1 (§ 4.1-100 etseq.) of Title 4.1, (xi) for such period that the Metropolitan WashingtonAirports Authority voluntarily subjects itself to the provisions of thischapter as provided in § 65.2-305, officers of the police force establishedand maintained by the Metropolitan Washington Airports Authority, (xii)officers of the police force established and maintained by the NorfolkAirport Authority, and (xiii) sworn officers of the police force establishedand maintained by the Virginia Port Authority, shall be presumed to beoccupational diseases, suffered in the line of duty, that are covered by thistitle unless such presumption is overcome by a preponderance of competentevidence to the contrary.
C. Leukemia or pancreatic, prostate, rectal, throat, ovarian or breast cancercausing the death of, or any health condition or impairment resulting intotal or partial disability of, any volunteer or salaried firefighter,Department of Emergency Management hazardous materials officer, commercialvehicle enforcement officer or motor carrier safety trooper employed by theDepartment of State Police, or full-time sworn member of the enforcementdivision of the Department of Motor Vehicles having completed twelve years ofcontinuous service who has a contact with a toxic substance encountered inthe line of duty shall be presumed to be an occupational disease, suffered inthe line of duty, that is covered by this title, unless such presumption isovercome by a preponderance of competent evidence to the contrary. For thepurposes of this section, a "toxic substance" is one which is a known orsuspected carcinogen, as defined by the International Agency for Research onCancer, and which causes, or is suspected to cause, leukemia or pancreatic,prostate, rectal, throat, ovarian or breast cancer.
D. The presumptions described in subsections A, B, and C of this sectionshall only apply if persons entitled to invoke them have, if requested by theprivate employer, appointing authority or governing body employing them,undergone preemployment physical examinations that (i) were conducted priorto the making of any claims under this title that rely on such presumptions,(ii) were performed by physicians whose qualifications are as prescribed bythe private employer, appointing authority or governing body employing suchpersons, (iii) included such appropriate laboratory and other diagnosticstudies as the private employer, appointing authorities or governing bodiesmay have prescribed, and (iv) found such persons free of respiratorydiseases, hypertension, cancer or heart disease at the time of suchexaminations.
E. Persons making claims under this title who rely on such presumptionsshall, upon the request of private employers, appointing authorities orgoverning bodies employing such persons, submit to physical examinations (i)conducted by physicians selected by such employers, authorities, bodies ortheir representatives and (ii) consisting of such tests and studies as mayreasonably be required by such physicians. However, a qualified physician,selected and compensated by the claimant, may, at the election of suchclaimant, be present at such examination.
F. Whenever a claim for death benefits is made under this title and thepresumptions of this section are invoked, any person entitled to make suchclaim shall, upon the request of the appropriate private employer, appointingauthority or governing body that had employed the deceased, submit the bodyof the deceased to a postmortem examination as may be directed by theCommission. A qualified physician, selected and compensated by the personentitled to make the claim, may, at the election of such claimant, be presentat such postmortem examination.
G. Volunteer lifesaving and rescue squad members, volunteer law-enforcementchaplains, auxiliary and reserve deputy sheriffs, and auxiliary and reservepolice are not included within the coverage of this section.
H. For purposes of this section, the term "firefighter" shall includespecial forest wardens designated pursuant to § 10.1-1135 and any persons whoare employed by or contract with private employers primarily to performfirefighting services.
(1975, c. 330, § 65.1-4.1; 1976, cc. 187, 772, § 65.1-47.1; 1977, cc. 326,620; 1978, c. 761; 1983, c. 357; 1987, c. 308; 1991, cc. 354, 355; 1994, cc.791, 960; 1997, c. 714; 1999, cc. 581, 597, 602, 604, 607; 2000, c. 1013;2001, cc. 330, 581; 2002, cc. 309, 737, 789; 2007, cc. 143, 616; 2009, c.515.)