Monday, May 18, 2020

One of These Things is Not Like the Other: Not All Workers’ Compensation Covid-19 Presumptions Are Equal

I am going to resist the temptation to don my evidence professor hat and go through a tortuous discussion of the distinction between inferences and presumptions, bursting bubble presumptions, and the entire panoply of interesting presumption “stuff.” It is enough for my purposes to simply set out some Covid-19 presumptions to drive the discussion. I am not focused here on the classification of employees entitled to the presumption or on the manner in which the presumption may be rebutted. My sole inquiry is on the presumption itself; in other words, presumption of what?

Wyoming passed a Covid-19 presumption over the weekend. In relevant part, here is what it says:

“Injury” does not include [Wyoming has a very broad definition of "injury" and no “accident” requirement]:

 

Any illness or communicable disease unless the risk of contracting the illness or disease is increased by the nature of the employment.  For the period beginning January 1, 2020 through December 30, 2020, if any employee in an employment sector for which coverage is provided by this act is infected with the COVID‑19 Coronavirus, it shall be presumed that the risk of contracting the illness or disease was increased by the nature of the employment;

New Jersey passed a Covid-19 presumption last week. In relevant part, here is what it says:

If, during the public health emergency . . . an individual contracts coronavirus disease during a time period in which the individual is working in a place of employment other than the individual’s own residence as a health care worker, public safety worker, or other essential employee, there shall be a rebuttable presumption that the contraction of the disease is work related and fully compensable for the purposes of benefits provided under [the Act].

A California Senate committee just passed a bill containing a Covid-19 presumption. In relevant part, here is what it says:

An injury [Covid-19 is defined as such] that develops or manifests itself while a critical worker is employed is presumed to arise out of and in the course of the employment. This presumption is disputable and may be controverted by other evidence. Unless controverted, the appeals board is bound to find in accordance with the presumption.

You can probably already see that Wyoming’s presumption is much weaker than the New Jersey presumption or the proposed California presumption. A presumption of “increased risk” is not the same as a presumption that a disease “arose out of and in the course of” employment. The causation standard in Wyoming is set out under WCSD v. Bruhn, 951 P.2d 373 (Wyo. 1997): causation is established “if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment then it arises out of employment . . .”

Nothing in a presumption of “increased risk” changes this general causation rule. Nor does it relax the need for medical causation. The statute had not previously covered “any illness or communicable disease unless the risk of contracting the illness or disease is increased by the nature of the employment.” So what the Wyoming presumption does is negate the requirement to show increased risk with respect to communicable diseases. Will that make Covid-19 cases easier to prove? Possibly. But a presumption of increased risk of Covid-19 contraction is simply not a presumption that Covid-19 is “work related and fully compensable for the purposes of benefits” nor is it a presumption that Covid-19 contracted by a worker “is presumed to arise out of and in the course of the employment.”

I like to believe this was not an exercise in smoke and mirrors.

Michael C. Duff

https://lawprofessors.typepad.com/workerscomplaw/2020/05/one-of-these-things-is-not-like-the-other-not-all-workers-compensation-covid-19-presumptions-are-equ.html

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