Request By:
Mr. Wilfrid Schroder
City Solicitor
City of Newport
Department of Law
Fourth and York Streets
Newport, Kentucky 41071
Opinion
Opinion By: Steven L. Beshear, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of June 28 in which you present the following facts and question:
"This office represents the Newport Policemen and Firemen's Pension Board. Under KRS 79.080(5), when a policeman or fireman has been on the force for more than 5 years and is presently unable to perform his duties by reason of heart disease or a lung disease, he is presumed to have contracted the disease while on active duty. Question: Under the statute, is the presumption created by said statute a rebuttable or irrebuttable presumption?"
In response to the above, we refer initially to KRS 79.080(5) which reads as follows:
"Any plan adopted shall provide that any officer or member of a paid fire or police department who has completed five (5) years or more as a member of the department, but who is unable to perform his duties by reason of heart disease or any disease of the lungs or respiratory tract, is presumed to have contracted his disease while on active duty as a result of strain or the inhalation of noxious fumes, poison or gases, and shall be retired by the pension board under terms of the pension system of which he is a member, if member passed an entrance physical examination and was found to be in good health as required."
The city of Newport is required to operate its policemen and firemen's pension fund pursuant to KRS 95.851 to 95.991. KRS 95.864 requires a medical examination to determine the disability of any member before he can receive the benefits provided for in the act. KRS 95.851(11) defines the term "occupational disability" as follows:
"'Occupational disability' shall mean disability due to occupational causes, including but not limited to injury or disease. The presumption of contracting disease 'while on active duty as a result of strain or the inhalation of noxious fumes, poisons or gases' created by KRS 79.080 shall be a presumption of 'occupational disability" hereunder."
The term "presumption" as used in KRS 79.080(5) and 95.851(11) has not been defined in any case relating to these sections. However, the term has been defined in numerous foreign cases. The court in
Cichecki v. City of Hamtramck Police Dept., 382 Mich. 428, 170 N.W.2d 58 held that a "presumption" is but a rule of procedure used to supply a want of facts and its only effect is to cast the burden on the opposite party of going forward with proof to the contrary. Again in the case of
State v. Ramsdell, 242 Iowa 62, 45 N.W.2d 503, the court declared that a "presumption" is that which may logically be assumed to be true until disproved, or in other words a position wearranted by past experience or known facts but which at the same time is capable of being doubted or refuted; that is, confirmed or invalidated by further evidence.
Finally, in Van Wart v. Cook, Okla. App. 557 P.2d 116, the term "presumption" was defined to be a rule of law, statutorily or judicially, by which the findings of a basic fact gives rise to the existence of a presumed fact until the presumption is rebutted.
It seems clear that the statutory presumption that heart disease or respiratory disease was contracted by a member of the department while on active duty is subject to rebuttal by evidence that may be submitted by the board in conjunction with the medical examination required to be made under KRS 95.864. In other words, the burden of proof that the disease was not contracted while on active duty and as a result of strain or the inhalation of noxious fumes, poison or gas, shifts to the board. This represents our opinion. However, since we find no Kentucky cases directly in point, it would be for the courts to ultimately decide.