The Role of Presumptions Within the Workers’ Compensation Arena

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is a leading commentator and expert on the law of workers’ compensation.

At the core of the American system of workers’ compensation law is the grand bargain struck between employers and employees (with society being an engaged third party as well) in which each side to the scene both received and gave up something of considerable value for a more streamlined system of handling injured workers’ claims. Employers gave up common law defenses to civil actions filed against them by the injured employees—contributory negligence, assumption of risk, etc.—and in most cases received in return some specific limitation of damages. While they were required to provide medical care and some statutory wage loss benefits, they faced no outlay for the injured employee’s pain and suffering. In most states, since the employer was paying for the medical care, the law provided some measure of control as to how that care was dispensed.

For the injured employee, receipt of benefits was no longer contingent upon being fault-free. At least in theory, if not always in practice, the new administrative system put in place in the various jurisdictions promised a quicker resolution of the claim than would have been the case if the dispute was arbited within the slow-moving court system. Society got something in the bargain as well. Generally, the administrative agencies set up to administer workers’ compensation law were able to become specialized in handling only one type of dispute. Moreover, again at least in theory, the cost of the good or service more accurately bore the cost of the employees’ injuries and not a social insurance mechanism funded by taxes.

That the core of workers’ compensation law reflects a compromise between the employer and the injured employee does not mean that the equilibrium between the two competing interests is always evenly balanced. Because of the remedial nature of the workers’ compensation legislation, jurisdictions have employed a plethora of presumptions to tilt the scales at least slightly in favor of the employee. While most of these presumptions are rebuttable presumptions, practitioners, claims managers, insurers and injured employees should keep them in mind as they maneuver through the various mine fields that make up the workers’ compensation arena. Here follows an extensive, although non-exhaustive, discussion of the important presumptions in play.

Unstated Presumption—Liberal Construction of Comp Statutes to Effectuate Remedial Purpose of Act

Editor’s Note: Citations link to lexis.com. Bracketed citations links to Lexis Advance.

One of the most important “presumptions” in many states isn’t technically a presumption at all, but rather a doctrine of statutory construction. And yet, the doctrine operates in the same fashion as a presumption, tilting the scales in favor of the injured employee if certain criteria are met. This feature, sometimes explicitly stated in the jurisdiction’s statutes, more often, however, being stated by its courts, is that the workers’ compensation act is to be liberally construed “to accomplish its beneficent purposes,” with doubts resolved in favor of the employee [see Holmes v. Gold Kist, Inc., 673 So. 2d 449  [673 So. 2d 449] (Civ. App. 1995)].

Quite a few states employ this presumption-like doctrine. Among them are:

Alabama (see Holmes cited above)
Alaska [S.L.W. v. Alaska Workmen’s Comp. Bd., 490 P.2d 42 [490 P.2d 42] (Alaska 1971)]
California [Cal. Labor Code § 3202; Strickland v. Foster (1985) 165 Cal. App. 3d 114 [165 Cal. App. 3d 114]
Colorado [McBride v. Indus. Comm’n, 97 Colo. 166  [97 Colo. 166] (1935)]
Georgia [Brown v. Lumbermen’s Mut. Cas. Co., 49 Ga. App. 99  [49 Ga. App. 99] (1934)]
Hawaii [Flores v. United Air Lines, 70 Haw. 1  [70 Haw. 1] (1988)]
New York [Wolfe v. Sibley, Lindsay & Curr Co., 36 N.Y.2d 505  [36 N.Y.2d 505] (1975)]
North Carolina [Bailey v. North Carolina Dep’t of Mental Health, 2 N.C. App. 645  [2 N.C. App. 645] (1968)]
Virginia [Lynchburg Foundry Co. v. Irvin, 178 Va. 265  [178 Va. 265] (1941)]
Wisconsin [Rib Mt. Ski Corp. v. Labor & Indus. Review Comm’n, 223 Wis. 2d 803  [223 Wis. 2d 803] (Wis. Ct. App. 1998)].

Until 2014, Tennessee was within this group. As a part of the 2013 reforms, the state legislature enacted and the governor signed into law a new provision amending Tenn. Code Ann. § 50–6–116 to indicate that the workers’ compensation law shall not be remedially or liberally construed but shall be construed “fairly, impartially, and in accordance with basic principles of statutory construction” and in a manner favoring neither the employee or the employer.

Basic Presumptions of Compensability

A number of state acts go further than liberal construction of the workers’ compensation laws. They provide a core presumption of compensability, once the essential parts of the claim have been established. Alaska has perhaps the most straightforward presumption provision. HRS § 386–85(1) provides that in "any proceeding for the enforcement of a claim for compensation under this chapter it shall be presumed, in the absence of substantial evidence to the contrary, that the claim is for a covered work injury.” N.Y. Work. Comp. Law § 21(1) provides that once an employee has shown the employer-employee relationship exists and that there was a causal connection or nexus between the accident and the employment, the Workers’ Compensation Board should apply a presumption that the claimed injury is compensable under the Workers’ Compensation Law insofar as the injury arose out of and in the course of the employment. Section 920 of the Longshore and Harbor Workers’ Compensation Act [33 U.S.C.S. § 920] (and, therefore, the Defense Base Act) has a somewhat similar provision.

Special Statutes on Heart, Respiratory and Other Diseases for Police and Firefighters

In addition to blazing structures, billowing smoke, and the hazards associated with handling all sorts of hazardous materials, firefighters and other first responders face a Catch–22 of sorts. On the one hand, anecdotal evidence and some isolated scientific studies support claims that prolonged exposure to the everyday conditions of their work cause, or are at least associated with, various maladies: respiratory disease, coronary conditions, and some cancers. On the other hand, many state workers’ compensation acts, absent special provisions, would disqualify the majority of claims associated with such medical conditions under relevant definitions of occupational disease since most of these medical conditions are “ordinary diseases of life to which the general public are exposed” [see Larson’s Workers’ Compensation Law, §§ 52.01, 52.02 [52.01, 52.02] for a discussion of the compensable limitations related to “ordinary diseases of life”].

In recent years, more and more states have addressed the issue by passing special statutory presumptions that grant special workers’ compensation coverage to firefighters, police officers, and sometimes to other first responders for respiratory and heart diseases connected with the exertions of the employment [see Larson’s Workers’ Compensation Law, § 52.07 [52.07]]. While the following is not an exhaustive list of such statutory presumptions, one can see that many states have enacted such special legislation:

AL: Ala. Code § 11–43–144
AK: Alaska Stat. § 23.30.121
AZ: Ariz. Rev. Stat. § 23–901.01(B)
CA: Cal Lab Code § 3212.1
CO: CRS § 8–41–209
CT: Conn. Gen. Stat. § 7–433c
FL: Fla. Stat. § 112.18
MD: Md. Ann. Code art. 101, § 64A(a)(1)
MI: MCLS § 418.405
MO: § 287.067(6) R.S.Mo.
NV: N.R.S.A. § 617.453
ND: N.D. Cent. Code, § 65–01–02
OH: ORC Ann. 4123.6853
PA: Pa. Stat. § 637
OK: 11 Okl. St. § 49–110
OR: ORS § 656.802
TN: Tenn. Code Ann. § 7–51–201
VA: Va. Code Ann. § 65.2–402
WI: Wis. Stat. § 891.45

The first state to consider the constitutionality of a special police-firefighter type of statute, North Carolina, found it unconstitutional as impermissible class legislation [Duncan v. City of Charlotte, 234 N.C. 86  [234 N.C. 86] (1951)]. Other constitutional challenges, however, have proved unsuccessful [see Larson’s Workers’ Compensation Law, § 52.07[2] [52.07]].

Opponents of the special presumptions point out that there doesn’t seem to be any compelling reason to prefer firefighters and police officers when so many other workers contract the same sorts of diseases and conditions, many from conditions in ordinary life. Indeed, no medical study to date has established an absolute causal connection between firefighting and/or police work and the broad swath of conditions that are covered by most of the presumption statutes. The most exhaustive study to date, sponsored by the National Institute for Occupational Safety and Health, undertaken by Robert D. Daniels, Travis L Kubale, James H Yin et al., published online October 14, 2013 [doi:10.1136/oemed–2013–101662], and entitled “Mortality and cancer incidence in a pooled cohort of US Firefighters from San Francisco, Chicago and Philadelphia (1950–2009),” reviewed the medical conditions of more than 30,000 firefighters over a sixty year period. The study found that although there may indeed be a correlation between a firefighter’s occupational exposure and an increased risk of certain cancers, except for mesothelioma, there was no direct causative link between firefighting duties and any particular medical condition.

The NIOSH study added that there is “little evidence of excess cancers of the testes, brain and lymphohematopoietic systems.” While the study noted some evidence of excess digestive cancers, primarily of esophageal and colorectal sites, the report observed that information on occupational causes was “sparse”, with only “limited evidence suggesting asbestos and diesel exhaust exposure may be weakly associated with gastrointestinal cancers.” The report further indicated “the relation between these hazardous exposures and digestive cancers appears small compared to the effects of other factors such as diet, obesity, physical activity, tobacco use and alcohol consumption.” The study concluded that there was a significant need to further evaluate “other risk factors” in explaining the firefighters’ and first responders’ conditions. For further details, see also “New Study Shows Correlation (But No Direct Causal Link) Between Firefighting and Cancer”, by Teresa McLoughlin Rice, Esq.

Other Presumptions

Unexplained Deaths

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’s Workers’ Compensation Law, § 7.04[2] [7.04]]. The practical justification lies in the realization that, when the death itself has removed the only possible witness who could prove causal connection, fairness to the dependents suggests some softening of the rule requiring claimant to provide affirmative proof of each requisite element of compensability.

Presumption that Disability Is Due to Work-Related Accident

In some states, particularly Louisiana, employees are aided by a presumption that a disabling condition was caused by a work-related accident [see Larson’s Workers’ Compensation Law, § 130.06[3] [130.06]]. If a worker who enjoyed good health before a work-connected accident is disabled after the accident, and can show a “reasonable possibility” of causation, he or she is entitled to the benefit of the presumption and the burden shifts to the employer to show either that the disability was due to an intervening cause or that there was no connection between the accident and the disability [see Burroughs v. LCR-M, 781 So. 2d 877 [781 So. 2d 877] (La. Ct. App. 2001)].

Similarly, in West Virginia, claimants are entitled to a presumption that if a disabling condition cannot be attributed to a cause other than the industrial injury, it must have resulted from the injury [Bias v. Workers’ Compensation Comm’r, 176 W. Va. 421 [176 W. Va. 421] (1986)]. Alaska [Alaska Statutes § 23.30.120(a)], Hawaii [noted above] and the District of Columbia [Sibley Mem’l Hosp. v. District of Columbia Dep’t of Employment Servs., 805 A.2d 974 [805 A.2d 974] (D.C. 2002)] indulge a somewhat similar “presumption of work-relation.”

Lent Employees: Presumption of Continuance of General Employment

In the case of borrowed or “lent” employees, there can be conflict between the two employers and their insurance carriers. Many jurisdictions accordingly employ a presumption as to the continuance of the general employment. Generally, in order to overcome this presumption, it is reasonable to insist upon a clear demonstration that a new temporary employer has been substituted for the old. Ordinarily that demonstration must include a showing that a contract was made between the special employer and the employee, proof that the work being done was essentially that of the special employer, and proof that the special employer assumed the right to control the details of the work. Failing this, the general employer remains liable [see Larson’s Workers’ Compensation Law, § 67.03 [67.03]].

Presumption of Employee Status of Full-Time Salesperson or Distributor with No Independent Business

Although this type of employment is less common today than in former times, just as an employer may purchase raw materials and other products from an independent business person, so it may also distribute its own products and materials by turning them over completely to a jobber or independent business person. Since disposition of the product is normally an inherent part of any business, there is an increasing tendency to indulge a presumption that salespeople, distributors, and delivery persons who fall short of the status of businesspersons holding themselves out to the public as such are employees [see Larson’s Workers’ Compensation Law, § 62.05 [62.05]].

Earnings Creating Presumption of Earning Capacity

In most instances, actual post-injury earnings will create a presumption of earning capacity commensurate with them, but the 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’s Workers’ Compensation Law, § 81.01 [81.01]].

Presumptions Regarding Dependent or Married Status

Following the common law in effect in most states, in workers’ compensation cases, where marriage is an issue, there is ordinarily a strong presumption of validity of the most recent marriage [see Larson’s Workers’ Compensation Law, § 96.02 [96.02]]. In a number of states, there is a strong, sometimes conclusive, presumption that a surviving spouse (and/or children) living with the employee at the time of his or her work-related death are dependent upon that deceased employee [see Larson’s Workers’ Compensation Law, § 96.05 [96.05]].

Conclusion

At the outset, I mentioned the grand bargain struck between employers and employees as many as 100 years ago in which each side both received and gave up considerable value in order to provide a relatively streamlined system of handling injured workers’ claims. I mentioned a third, interested party to the bargain–society. Society has carefully played its role in keeping a relative balance between the interests of employers and employees when it comes to workplace injuries and safety. One important tool that society has used is the creation and maintenance of various presumptions—most favoring the injured employee. This deferential tip of the society’s hat is a strong recognition that today, just as was the case 100 years ago, employers generally have more abundant resources than do employees. It remains to be seen if society can continue to make effective use of presumptions to continue the uneasy equilibrium in today’s work force.

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