The Grand Bargain & Presumptions: Are Some Workers More Equal Than Others?

By Richard B. Rubenstein, Esq., Livingston, NJ

Will COVID-19 Presumptions and IARC Monograph#132 Be Game-changers?

The original Grand Bargain of workers’ compensation played no favorites: All workers were created equal when traumatically injured. Of course, workers’ compensation laws did not cover occupational diseases at the time of the making of the Grand Bargain. It took decades for emerging theories of medical causation to foster stakeholder agreement on the etiology of common industrial diseases. In the early days, workers received a hand from organized labor and social activists in the mold of Upton Sinclair, who pressed for an expansion of the workers’ compensation laws to recognize occupational diseases like silicosis, bakers’ lung, and black lung.  At the genesis of the occupational disease case, the time limits for filing were short. The requirements for notice and knowledge of the condition were severe. States varied widely in their acceptance of covered diseases. New Jersey, for instance, covered only Anthrax, lead, mercury, arsenic, phosphorus, benzene, wood alcohol, chrome, caisson disease, mesothorium and radium poisoning. New York, sharing a border and many industries with New Jersey, added zinc, sulfides, nitrous fumes, formaldehyde, and cataracts in glass workers only, along with half a dozen other toxins and gases. It may be that New York’s limitation of cataract coverage to glass workers was the first occupational preference or presumption seen nationally.  See: U.S. Dept. of Labor, “Occupational-Disease Legislation in the United States, 1936, p. 35. Up to that point, statutes treated all industrial workers equally, without presumption or relaxation of proofs. New rights were expanded in an even-handed manner. That is, if one can accept that capped rates based on low wages were fair.

The Growing Trend

After years of relatively egalitarian treatment of workers, the concept of presumption emerged in the various state acts. Interestingly, the first causal relationship presumptions emanated from the military, not civilian workers’ compensation programs. As early as 1921, we saw the establishment of presumptive disability for tuberculosis and some psychiatric disorders following the horrors of mass casualties and trench warfare in World War I. As the Veterans Administration expanded exposure categories for military exposures, state workers’ compensation programs mirrored that expansion albeit slowly and painstakingly. See: Samet, JM, Bodurow CC. Improving the Presumptive Disability Decision-making Process for Veterans. Nat’l Academy Press; 2008.

Pennsylvania passed the first heart and lung presumptions for firefighters as early as 1935. The vast majority of state workers’ compensation programs followed in fits and starts, until at the present time virtually every state has at least some form of presumption for cardiac and pulmonary causal relationship. More than twenty states have enacted workers’ compensation presumptions for first responders, firefighters in particular, who can prove they were exposed to carcinogens and are diagnosed with cancer. Others have augmented their pension laws to furnish cancer benefits. It is fair to say that all 50 states have made some provision for extending cancer benefits to firefighters. Some jurisdictions, like New Jersey’s Canzanella Act, N.J.S.A. 34:15-31.2 et seq. have tied covered cancers to the monographs of the International Agency for Research on Cancer. If cancer manifests during the service of a first responder, then a prima facie case is made so long as the IARC identifies it as a firefighting-linked cancer. This can be rebutted only by evidence that the cancer is not “linked” to the work.  See: N.J.S.A. 34:15-31.8. If manifestation comes only after service, the presumption can be rebutted by a preponderance of evidence that the cancer did not arise out of and in the course of employment. Certainly, the in-service presumption is far more useful to a claimant than the post-service presumption, which covers firefighters with more than seven years of service, who are under 75 and have been retired for less than 20 years at the time the claim arises. Broad firefighter presumptions exist in Alaska, Arizona, Colorado, Idaho, Illinois, Louisiana, Maryland, Maine, Montana, New Hampshire, New Jersey, New Mexico, Nevada, Oklahoma, Oregon, Tennessee, Texas, Utah, Virginia, Vermont, and West Virginia. The list continues to grow. At least five of those states extend the presumption to other types of first responders. The rest of the states recognize at least some types of cancer as compensable based on exposure to group 1 or 2A carcinogens. Louisiana’s worker’ compensation law covers cancers “for which firefighters are determined to have a statistically significant increased risk over that of the general population.” LA RS 33:2011.

The IARC monographs are either authoritative under state presumption laws, or, at the very least, highly persuasive as trial proofs. The first monograph  was published in 2010 as IARC Monograph 98, covering painting, firefighting and shiftwork. Different types of cancer were identified as “linked” to the professions, and others were left to question, or identified as without any statistical association whatsoever. Others were omitted from discussion entirely, as no reliable peer-reviewed studies existed. Practitioners should be aware that as of July 1, 2022, the IARC has greatly revised and expanded the list of cancers associated with firefighting, taking into account the variety of exposures in both fire and non-fire events. IARC Monograph #132: Occupational Exposure as a Firefighter has been published The Lancet Oncology. https://doi.org/10.1016/S1470-2045(22)00390-4.

The IARC has concluded that occupational exposure as a firefighter (and ostensibly, other first responders subjected to the same exposures, like police and EMT personnel) causes mesothelioma and, cancer of the bladder. There was limited evidence in humans for cancers of the colon, prostate and testis, and for melanoma of the skin and non-Hodgkin lymphoma. The IARC determined that there was strong mechanistic evidence that occupational exposure as a firefighter “exhibits multiple key characteristics of carcinogens in exposed humans.”  Lung and thyroid cancers were not adequately explained, and their determination of causal relationship remains in abeyance. A discussion of the mutagenic and inflammatory effects of firefighting resides in the latest monograph and is worthwhile reading for the practitioner. Even without conferring a presumption, the IARC analysis of inflammatory conditions may be useful in developing a non-presumptive case for cancers linked to inflammation.

The evolving research on first responders and cancer certainly presents a justification for presumption laws as a valid tool for executing public policy. Cancers which could not be the subject of claims a generation ago are now provable, and our moral duty to the victims is to see them compensated without years of litigation that may outlast them and place their dependents in dire straits.  As always, for advocates and prospective claimants, the process of identifying causation has moved too slowly.  As always, for skeptics, the process has moved too rapidly.  Ironically, a close reading of IARC Monograph 132 teases that science may soon swallow up the evidentiary need for presumptions, the data so strongly proving the link between exposure and cancer.  But in practice, whether the presumptions themselves expedite the delivery of benefits to worthy claimants is entirely another question.

Did We Need a COVID-19 Presumption?

The emergent enactment of COVID-19 presumptions for essential workers during the recent pandemic avoided the usual structural and political delays customary in passing workers’ compensation legislation. There was no time for feasibility studies, budget projections, committee debates with expert witnesses, floor debates and conditional vetoes. As a result, stakeholders to the system skipped over a number of potentially uncomfortable moral and ethical questions from claimants, adjusters, and counsel on both sides of the aisle. The identification of special classes of essential workers was often vague, depending on evolving Executive Orders or ever-shifting memoranda from Federal agencies. Were teachers covered? Were custodians covered? Medical device manufacturers? Was it relevant whether a returning worker had interaction with the public, as opposed to their own co-workers, who are just as contagious as any other citizens? Litigants are still grappling with identifying who was protected as an essential worker in many states, even now.

Certainly, COVID-19 presumption laws addressed an urgent national challenge: How was government to entice vulnerable workers back into the workplace in the face of a frightening contagion before there were either vaccines or reliable treatments for COVID-19? Should a new infrastructure and bureaucracy have been created to address a national COVID-19 compensation policy, or should emergent relief have been simply grafted onto 50 workers’ compensation acts in a massive unfunded mandate?  Keeping government services and critical supply chains operating was obviously essential. The direct connection between preserving the economy and social order and providing swift and certain medical and temporary benefits to returning workers during a global pandemic cannot be gainsaid. For those who criticize any further departure from the formerly egalitarian Grand Bargain, emergent or not, it is fair to paraphrase Justice Jackson in observing that the Grand Bargain is not a “suicide pact.” In hindsight, judging from the billions in fraud and waste reported recently in connection with PPP loans, the argument for a slapped-together Federal COVID-19 workers’ compensation authority would be a very hard sell, indeed.

What Does a Presumption Mean in Practice: Takeaways

Oregon’s law lists covered cancers serially and creates a very strong presumption for professional firefighters. The denial of a claim requires “clear and convincing medical evidence” of a lack of cause or contribution by the employment exposure, or proof that tobacco use is the “major contributing cause” of the cancer. See: OR 656.802. New Jersey’s Canzanella Act creates a presumption, but the New Jersey Rules of Evidence limit presumptions to merely satisfying the burden of production, not persuasion, if rebuttal is attempted. Certainly, in those states which embrace this Morgan theory of presumption, the protections of firefighters and other covered workers is greater than Thayer-Wigmore states, where the presumption completely disappears once rebuttal is even attempted by the employer.

In practical terms (and from professional anecdote, not a statistical study), it appears that the vast majority of occupational cancer claims are still initially denied despite presumption laws. The instance of accepted claims reported on listservs by practitioners is rare.  The moral and practical ideal of a rapid and efficient delivery of benefits may motivate and inform the creation of presumptions. The everyday practice of workers’ compensation, however, engenders a series of roadblocks maddeningly impervious to Legislative will. Every claimant will still be vetted by carriers and third-party administrators for pre-existing pathologies, subsequent or concurrent employment, years of service, actual evidence of exposure in the field, prior awards or pre-existing disabilities implicating the various Second Injury Funds, the effect of different types of pension, dependency relationships, and granular reviews of voluminous medical records.

In the end, more cases may settle for lump-sum payments with dismissal because of the perceived threat of a presumption. This is perhaps a better result than meritorious claims would get without a presumption, but it is hardly a vindication of a hard-fought right and remedy.  Cases which are actually tried before a Judge of Workers’ Compensation will no doubt see medical rebuttal based upon a denial of exposure or latency period, or extraneous causes, any one of which render the presumption illusory in practice.

As to COVID-19, practitioners in many states report satisfactory initial acceptance of these claims and the payment of medical and temporary disability in the throes of the pandemic. Post-pandemic, the battle has now been joined with respect to awards of permanent partial and permanent total disability. Few could argue that the COVID-19 presumptions so quickly enacted by the States were unsuccessful. People returned to their jobs under the protection of the law, and largely received benefits when they became ill. As medical knowledge of the permanency of COVID-19 related conditions develops, the cases will no doubt last for years while the parties haggle over permanency awards. This may be the most singularly successful application of a legal presumption to workers’ compensation to date.

© Copyright 2023 Richard B. Rubenstein. All rights reserved. Reprinted with permission.