Wednesday, May 20, 2020

Senate Passes Covid Disability/Death Presumption for First Responders

As you may already have heard, the Senate has passed a Covid-19 presumption, S. 3607. My abridged rendering is as follows. The presumption bill—which is keyed to a federal first responder catastrophic injury/death benefit statute, 34 U.S.C. § 10281 et seq.—provides federal death or disability benefits (as the case may be), in a lump sum, to “public safety officers” as defined under federal law (generally what we would refer to as “first responders”). The causation presumption is new (I find no causation presumption in the referenced laws).

For Death Benefits

Unless competent medical evidence establishes that the death of a public safety officer . . . was directly and proximately caused by something other than COVID–19, COVID–19 (or complications therefrom) suffered by the public safety officer shall be presumed to constitute a personal injury within the meaning of [Federal law] . . . , sustained in the line of duty by the officer and directly and proximately resulting in death, if—the officer engaged in a line of duty action or activity between January 1, 2020, and December 31, 2021; the officer was diagnosed with COVID–19 (or evidence indicates that the officer had COVID–19) during the 45-day period beginning on the last day of duty of the officer; and evidence indicates that the officer had COVID–19 (or complications therefrom) at the time of the officer's death.

Thus, the presumption

  • Applies only to public safety officers suffering from death
  • Is a presumption of death sustained in the line of duty (that is to say, gives full causation)
  • Is rebuttable by evidence of direct and proximate causation from another source
  • Applies only if the officer engaged in “duty action” between 1/1/20 and 12/31/21
  • Applies only if the officer “had” Covid 19 during 45 days after officer terminated work
  • Applies only if officer also had Covid 19 at time of death

For Disability Benefits

“COVID–19 (or complications therefrom) suffered by a public safety officer shall be presumed to constitute a personal injury within the meaning of section 1201(b) of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (34 U.S.C. 10281(b)), sustained in the line of duty by the officer, if—the officer engaged in a line of duty action or activity between January 1, 2020, and December 31, 2021; the officer was diagnosed with COVID–19 (or evidence indicates that the officer had COVID–19) during the 45-day period beginning on the last day of duty of the officer.

Thus, the presumption

  • Applies only to public safety officers suffering from disability [as defined by federal law]
  • Is of an injury sustained in the line of duty (that is to say, gives full causation)
  • Applies if the officer engaged in “duty action” between 1/1/20 and 12/31/21
  • Applies if the officer had Covid during 45 days after officer terminated work 

One curiosity surfaces on a first reading of the disability presumption: it is not explicitly rebuttable. I am not clear about why the death benefit would be subject to a rebuttable presumption while a disability benefit is subject (as I read the language, at least) to an irrebuttable presumption.  Perhaps it is simply a question of anticipated claim value. 

Benefits are paid in lump sum and, according to WorkCompCentral (behind paywall here), “the program provides a lump-sum payment of $359,316 and education assistance of $1,224 per month for spouses and children.” (The lump sum figure is inflated from $250,000 in earlier versions of the death/catastrophic injury benefit statute).

A few comments. First, a legislature knows how to draft a causation presumption when it wishes to do so (contrast my comments on the recent Wyoming presumption). Second, the development will no doubt intensify the national debate on the scope of the essential workers category. It will be interesting to see if the House has thoughts in this area. Third, a “someday” federalization of workers’ compensation could come in mysterious ways. Federal action in this area suggests a concern that state systems may not be adequate to shoulder the Covid burden, at least when it comes to first responders. Finally, federal benefits would not be covered by anyone’s version of a liability shield.

Michael C. Duff

https://lawprofessors.typepad.com/workerscomplaw/2020/05/senate-passes-covid-disabilitydeath-presumption-for-first-responders.html

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