The Relevance of Presumption Laws in Workers’ Compensation

The Relevance of Presumption Laws in Workers’ Compensation Workers’ compensation claims processing relies on medical chart reviews.

Presumption laws may be applicable to workers’ compensation claims.

Presumption laws are relevant in many U.S states for workers’ compensation determination for employees such as firefighters, police officers, and EMTs (Emergency Medical Technicians). In any workers’ compensation case, medical record retrieval and review are significant procedures. Presumption laws serve to transfer the burden of proof on medical causation so that the disease is “presumed” to be work associated unless rebutted by evidence to the contrary. It is estimated that presumption laws are the largest cost driver for the workers’ compensation programs of public entity employers in America.

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Diseases That Are Covered by Presumption Laws Initially, presumption laws have been applicable for heart and lung diseases. Laws were passed around the nation providing that heart disease experienced by firefighters and police officers was work related, considering the tremendous pressure these employees experienced on the job. The presumption is now extended to cancer wherein first responders such as firefighters receive a presumption that their cancer is work related. This presumption is allowed because firefighters inhale a number of carcinogenic agents at work, which could be the cause of their cancer. Firefighters do not have to prove which cancercausing chemicals they were exposed to or when the exposure occurred. There are numerous studies that connect premature death rates and high cancer rates to first responders, especially firefighters.

State governments have the responsibility of implementing presumption laws.

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In fact, every state recognizes occupational diseases under workers’ compensation.

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Not all states recognize the same dangers on the same jobs.

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Presumption laws set the criteria for when first responders can automatically be presumed to have cancer caused by on-the-job toxic exposure.

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Workers’ compensation for the injured worker can be speeded up, and administrative costs associated with processing/investigating the claim can be reduced when “presumed” occupational diseases are recognized under the law.

Considering “cancer presumption”, state laws vary considerably. While some states provide a presumption for all types of cancer, most states limit the presumption to particular forms of cancer. The year 2018 witnessed maximum legislation related to presumption laws than any other concerns in workers’ compensation with firefighter unions insisting on expanding these laws and the types of cancers covered.

Apart from cancer and heart/lung diseases, now PTSD (Post-traumatic stress disorder) is also considered eligible for a “presumption” with several states including California and Minnesota passing PTSD presumption bills for first

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responders in 2018. The PTSD presumption laws vary by state, and also according to the differences in other basic state-specific workers’ compensation regulations.

It is difficult to estimate PTSD related costs because there is a lack of claims experience in this field. Mental disorders such as PTSD can be diagnosed only based on a medical professional’s evaluation of the symptoms reported by the patient.Employees who qualify for PTSD presumption include licensed police officers, firefighters, EMTs, licensed nurses providing emergency medical services outside of a medical facility, public safety dispatchers, and sheriffs and deputy sheriffs of any counties.

What Are the Advantages of Presumption Laws in Workers’ Compensation?

Presumption laws are advantageous for employees. Workers’ compensation claims processing can be considerably simplified when presumption laws are in place. It enables the insurer to accept the genuineness of the claim straightaway when a worker in a specific occupation has a disease and meets the set criteria. Surely, it provides for a more effective way of handling the claim compared to settlement/litigation.

Possibility of a Rebuttal A PTSD diagnosis can be rebutted in some states such as Minnesota, where “substantial factors” can be brought in.

However, such factors known to the

employer/insurer and used for the rebuttal must be communicated to the employee on the denial of liability. PTSD mental impairment associated with a disciplinary action, job transfer, work evaluation, layoff, demotion, promotion, retirement, termination or other comparable action taken in good faith by the employer is excluded from the presumption.

Concerns Related to Presumptions However, there is a concern that “presumed” work-related diseases could increase insurance rates and make insurers hesitate to provide coverage. Moreover, it could

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also increase employer liability. In the absence of such a law, it is the responsibility of the employee to show that his/her job led to the disease. In the presence of presumption law, that responsibility is transferred to the employer who must prove that the job did not cause the illness.

There has been increased focus on presumption laws (related to PTSD, mental health, cancer) in 2019 legislatures for first responders. Presumptions are now being implemented in other industries and professions as well – these include school teachers, dispatchers, jail guards, and mechanics who work on fire engines.

Workers’ compensation attorneys, companies that provide medical review services for the workers’ comp industry, employers and insurers are concerned that presumption laws could lead to the creation of a distinctive group of injured workers who will find it much easier to prove compensability compared to the general public.

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