Opinion Mondays: COVID-19 Presumptions Don't Stand Alone in the Workers' Comp World
Recently, I had an occasion to spar with a young reporter who was gathering background information on a COVID-19 piece that she’s preparing. She’s only been in the legal news “business” for a couple of years and she admitted she was trying to get her head around the important issues within the world of workers’ compensation. She had read a couple of my blog posts that were critical of some of the state-specific COVID-19 presumptions, and she then allowed that to her the use of presumptions seemed unprecedented and “disruptive.”
I often bristle when I hear the term “disruptive.” It’s been used so frequently recently that it’s lost its punch. But back to point, I quickly retorted, “Not at all, I can think of half a dozen presumptions that are routinely utilized in workers’ compensation law.” I was wrong, of course. As I sat down this morning to outline this piece, I quickly came up with a dozen. You likely can come up with others. Presumptions are an integral part of “our world.” Here is my quick list (in somewhat random order).
Unexplained Falls/Deaths
In spite of the reluctance of many jurisdictions to utilize a “but-for” causation analysis in workers’ compensation cases, the majority of courts confronted with the unexplained-fall problem have seen fit to award compensation (see Larson’s Workers’ Compensation Law, § 7.04[1]). The fact patterns can be quite unusual. For example, in one early case, Ryerson v. A.E. Bounty Co., 107 Conn. 370, 140 A. 728 (1928).
The tendency on the part of courts to allow compensation for unexplained deaths is even stronger. Generally speaking, when an employee is found dead under circumstances indicating that death took place within the time and space limits of the employment, in the absence of any evidence of what caused the death, most courts will indulge a presumption or inference that the death arose out of the employment (see Larson, § 7.04[2]).
Firefighter, et al., Presumptions as to Heart/Lung Disease & Cancer
During the past few decades, there has been a “burgeoning” in all parts of the country of statutes granting special compensation coverage to firemen or policemen or both, for respiratory and heart diseases connected with the exertions of the employment (see Larson, § 52.07[2]). Some jurisdictions also have statutes that provide special compensation coverage to police or fire fighters for disabilities other than those caused by heart or respiratory illnesses. For example, Connecticut (see my discussion here) and Florida (see my discussion here) provide benefits for “first responders” who contract PTSD, although both states exclude such coverage for other employees.
A growing number of states now have cancer presumptions for firefighters and certain other “first responders” (see Larson, § 52.07[2]). No two are identical. Most establish a presumption of work connection when these diseases result from performance of active service.
Presumption of Compensability in the Longshore Act and the Defense Base Act
Section 20 of the Longshore and Harbor Workers’ Compensation Act (33 U.S.C. 920) contains several key presumptions. Generally speaking, in any proceeding for the enforcement of a claim for compensation under the Act, it is presumed, in the absence of substantial evidence to the contrary:
- That the claim comes within the provisions of this Act.
- That sufficient notice of such claim has been given.
- That the injury was not occasioned solely by the intoxication of the injured employee.
- That the injury was not occasioned by the willful intention of the injured employee to injure or kill himself or another.
Several jurisdictions [e.g. Alaska and Hawaii] have statutory presumptions similar to that contained in the Longshore Act.
Presumption that Sufficient, Timely Notice of Injury Was Given
Again, as noted above with regard to the Longshore Act, most jurisdictions favor the employee with a presumption that notice of injury has been given to the employer in a timely manner (see Larson, § 126.01, et seq.).
Presumption of Total Disability When Worker Suffers Certain Multiple Scheduled Injuries
In a plurality of jurisdictions, total disability is presumed to have occurred with an employee sustains certain combinations of losses of members, e.g., both hands, both arms, both legs, both feet, both eyes, or any two of them (see Larson, § 83.08, et seq.).
Presumption that Traveling Employee’s Injury Was Within Course and Scope of Employment
In the majority of jurisdictions, employees whose work entails travel away from the employer’s premises are presumed to be within the course of their employment continuously during the trip, except when a distinct departure on a personal errand is shown. Thus, injuries arising out of the necessity of sleeping in hotels or eating in restaurants away from home are usually held compensable (see Larson, § 25.01, et seq.).
Presumption of Liability for Employer Where Worker Sustained “Last Injurious Exposure”
The “last injurious exposure” rule in successive-injury cases places full liability upon the carrier covering the risk at the time of the most recent injury that bears a causal relation to the disability (see Larson, § 153.02). While the statutory provisions for the use of the rule frequently refer only to occupational disease, the rule is often applied in accidental injury cases as well.
Presumption of Intoxication Following Certain Post-Injury Drug Tests
In many states, when post-injury blood alcohol tests real the presence of alcohol beyond the state-established “legal limit,” there is a rebuttable presumption that the employee’s injury was causally connected to intoxication, such that no benefits can be awarded (see Larson, § 36.01, et seq.).
Presumption of Dependency for Surviving Spouse and Children
In many state Acts, the right of a surviving spouse –and usually minor children — to recover death benefits is conclusively presumed, if they were living with the deceased at the time of the fatal injury or disease (see Larson, § 96.05). Under these statutes, nothing short of termination of the specified relation can work a forfeiture of death benefit rights. Generally speaking, references elsewhere in the state Act to “dependent spouses” or “dependent children” are not to be taken as altering the basic rights to benefits irrespective of dependency.
There is a presumption in many states as to the validity of the most recent marriage of the deceased employee. The burden of rebutting this presumption is generally so heavy that the net result is virtually a conclusive presumption (see Larson, § 96.02[4]). Similarly, there is a strong presumption that any child born during the deceased employee’s wedlock was a legitimate offspring (to use that archaic word).
Presumption of Earning Capacity Created by Post-Injury Earnings
In most jurisdictions, actual post-injury earnings will create a presumption of earning capacity commensurate with them, although that presumption may be rebutted by evidence independently showing incapacity or explaining away the post-injury earnings as an unreliable basis for estimating capacity (see Larson, § 81.01, et seq.). Unreliability of post-injury earnings may be due to a number of things: an increase in general wage levels since the time of accident; claimant’s own greater maturity or training; longer hours worked by claimant after the accident; payment of wages disproportionate to capacity out of sympathy to claimant; and the temporary and unpredictable character of post-injury earnings.
With Regard to “Lent” Employees, Presumption that General Employment Continues
In workers’ compensation cases, the dispute is generally between the employee and the employer and/or insurance carrier for the employer. In lent employee situations, however, the conflict can be between the lending “employer” and the “borrowing” employer as to which should bear the burden of liability. Because of the beneficent purposes of the state Act, there must be some beginning point. That beginning point is usually a presumption: that there is a continuance of the general employment (see Larson, § 67.03).
Presumption of Correctness Afforded Certain Medical Testimony
All too many workers’ compensation cases devolve into a veritable “battle of the medical experts,” where the employee’s medical expert opines as to a level of impairment and the employer then counters with another expert whose opinion is sometimes staggeringly different. In former years, some hearing officers attempted the Solomonic decision of somehow equitably splitting the difference. A growing number of states have found such solutions no solution at all. For example, in Tennessee and Florida, procedures have been established, either upon the request of a party, or the hearing officer, to name an independent medical expert to complete an examination of the injured employee. In these states, the opinion of the independent medical evaluator or examiner is presumed to be correct (see, e.g., Rogers v. Rent-A-Center, East, Inc., 2020 Tenn. LEXIS 280 (July 29, 2020); Larson, § 94.02].
COVID-19 Presumptions Follow Plenty of Others
All this is to say that the recent flurry of state-specific presumptions for COVID-19 claims is set within a broad context of presumptions related to both coverage and liability within the workers’ compensation world. While the typical state coverage formula is relatively straightforward, providing medical benefits and indemnity benefits for accidental injuries (and diseases) that occur within the course and scope of the employment, jurisdictions have never been shy in “tinkering” with the formula, by granting one party or the other a favorable presumption. COVID-19 presumptions become, therefore, one more moving part in the evolving system of providing benefits to employees and limiting the overall liability to employers.