Monday, August 17, 2020

Sedgwick Institute Publishes White Paper Cautioning Against Presumptions for COVID-19

            In an important white paper, published by Sedgwick, the authors review the recent popularity of presumptions (including those for COVID-19) in workers’ compensation laws.  David Langham & Chris Mandel, American Workers’ Compensation – A Study in Disparities and the Expanded Use of Presumptions (Sedgwick Institute, July 2020),

            The authors first provide a short history of workers’ compensation from its inception. They note, among other things, that in some jurisdictions, laws provided for presumptions of compensability, giving the injured worker the “benefit of the doubt” in ambiguous cases that the injury arose out of the employment. These types of laws (never the rule in my state, Pennsylvania), have, over the recent decades, been repealed, with most jurisdictions currently obliging the injured worker to prove his or her claim as in a tort case.

            Now, however, a narrower type of presumption has developed, legislated typically at the behest of certain lobbies (firefighters seeking cancer presumptions; police officers seeking mental trauma presumptions). The authors, perhaps with provocative intent, describe such presumptions as “discriminating” and reflecting “disparate treatment by government.”

            The authors discuss, accurately, how the development of these laws has laid the groundwork for executive and legislative action in the form of presumptions of causation in the realm of worker infection by COVID-19. The authors analyze the likely cost increases to the system brought about by the virus, and the application of presumptions, and caution against their indiscriminate use in this and other contexts. In the authors’ view, the overuse of presumptions unfairly upsets the bargain or compromise which is the basis of the system. This is particularly so, they suggest, because the etiology of non-occupation-specific diseases (and psychic injuries, for that matter) is still not well understood.

            With regard to costs, the authors seem to acknowledge that the true total costs of COVID-19 in the workplace, and the effect of the presumptions enacted as a consequence, is difficult to estimate. Some of the cases will feature modest costs while others will exhibit serious expenditures. Still, the authors posit that, whatever the total costs, a particular jurisdiction’s adoption of a COVID-19 presumption may induce businesses to relocate to another state, or offshore its operations altogether. Notably, the authors reject the idea that such a phenomenon reflects some “race to the bottom” but, instead, characterize the same as a legitimate attempt by such businesses to avoid increased costs – particularly medical expenditures.

            It is difficult to argue with many of the points made by the authors. Still, it is important to remember that occupational disease presumptions have long been part of workers’ compensation laws. A list of diseases, paired with occupations in which incurrence was thought to be a special risk, was a feature of the second British law of 1907. E.P. Hennock, The Origin of the Welfare State in England and Germany, 1850-1914: Social Policies Compared (Cambridge University Press. 2007). Pennsylvania, notably, was to emulate that approach in its enactments of 1937 and 1939.

            It is also important to remember that not all presumptions are created equal. For example, in Pennsylvania, the Section 301(e) presumption enjoyed by an occupational disease victim “drops out” as soon as the employer presents evidence of an alternate cause for the disease. And, when it does so, the injured worker once again carries the burden of proof on causation. Thus, to a certain extent, the presumption is a paper tiger. (It may be that the dynamic is different under Act 46 of 2011 (cancer in firefighters)).

            In any event, in Pennsylvania we know from decades of workers’ compensation black lung litigation that no lawyer would ever rely on the presumption alone; he or she would always develop expert evidence on the causation issue.  

            Finally, not all presumptions are created equal for another reason, and in an aspect which the authors, in their brief against this legal device, do not discuss. In this regard, one presumption which has gained popularity works in employers’ favor. That device is the presumption (rebuttable) that when, in the wake of an injury, the worker is found to have any level of marijuana metabolites in his or her blood, intoxication from that agent is the cause of the accident. Arkansas and Florida seem to maintain such laws; a leading case is Brinson v. Hospital Housekeeping Services, LLC, 263 So.3d 106 (Fl. Ct. App. 2018) (housekeeper, at end of shift, rushing to report an emergency, who slipped and fell, dislocating shoulder, barred from recovery when it was found that she had THC in her blood).

            This type of presumption, which operates free of any intoxication “threshold,” does not seem to be supported by scientific evidence and, when coupled with mandatory drug-test rules, no doubt suppresses the prosecution and payment of many claims where drug use had nothing to do with the accident.

            Though this type of presumption (still a minority approach) is not noted by the authors, they would be unapologetic, one senses, about such results. In this regard, a well-known social science dictum is that mass justice programs can, at times, work inequities. Here, the authors describe that phenomenon more poetically: “It is … generally accepted that workers’ compensation systems are imperfect…. The systems operate on a macro analysis of compromise. As a result, there are individual outlier examples in which the results are less than ideal. The systems are imperfect, drawn by people who are imperfect, and therefore necessarily imperfect results will ensue.”

August 17, 2020 | Permalink | Comments (1)

Tuesday, August 11, 2020

Some Quick Thoughts on “Presumptions”

I am very clear on why certain people do not “understand” COVID-19 workers’ compensation causation presumptions. There is that very old (gendered) Upton Sinclair saw: “It is difficult to get a man to understand something when his salary depends upon his not understanding it.” Insurance carriers report that expanded coverage occasioned by COVID-19 presumptions could result in increased business costs spread across an entire industry. Yes – some would argue that is precisely what we want to happen. Some say, “but this is not what we have done in the past.” That was exactly the reaction of many employers to the established negligence order when workers’ compensation was proposed in the early 20th century. The whole idea of strict liability (or something like it) for workplace injury was simultaneously preposterous and deemed necessary (considering the alternative of widespread enactment of liability statutes – organized labor’s preferred solution to the work-injury epidemic). It was not until 1850 that we were even clear that the plaintiff had the burden of proof in an injury case to show that a defendant failed to act as a reasonably prudent person under the circumstances. Before then, defendants had the burden of proving their actions conformed with a standard of care (think about running a business in that world and you will understand why the rule had to be changed to accommodate industrialism). The point is that law is changing all the time and those changes are measured against constitutional baselines.

It is also interesting to note how some observers can simultaneously be hostile to COVID-19 workers’ compensation causation presumptions but be uncritically receptive to COVID-19 civil immunity for business. Surely those observers realize that imposing liability on actors only in cases of gross negligence proven by clear and convincing evidence acts as an irrebuttable presumption against negligence. (Irrebuttable presumptions are in reality rules of law—so these are rules extinguishing ordinary negligence).

For many years I have been an ardent defender of state-based workers’ compensation. I have defended the system not because I think it always works well—I think no such thing. Rather, as a substitute for negligence, I have seen state workers’ compensation as rights-based and policed by principles of federalism, at least in theory. I have often seen federal social insurance, on the other hand (and very roughly speaking), as discretionary. But seeing how quickly many state legislatures have been willing to throw negligence “under the bus” in the current crisis, my back-of-the envelope heuristics may have been jolted. As I opined today in Bloomberg Law (in so many words), you do not cavalierly throw a body of law away because rights afforded under it become expensive or inconvenient. Rules afford rights as well as defenses. If the rule of law is not enforceable against the wealthy and powerful, it does not mean much.

Michael C. Duff  

August 11, 2020 | Permalink | Comments (0)