How Presumptions Impact the Grand Bargain of Workers’ Compensation

At the 2022 PRIMA conference, a session discussed the impact that presumptions are having on the grand bargain of workers’ compensation. The speakers were:

• DeeAnn Wagner – Sedgwick
• Paula Lowder – Colorado Special Districts Property & Liability Pool
• Helana Barmore – Texas Association of Counties
• Jeff Rush – California JPIA

When workers’ compensation was initially developed, it focused on traumatic injuries in the workplace. Over time, the system added repetitive trauma claims, or certain occupational diseases and injuries occurring gradually over time, expanding coverage well beyond the initial intent of the law. However, these areas of expansion were tied to specific inheritance of the employment.

Presumption laws expand workers’ compensation to supersede the “arouse out of” test on compensability and shift the burden of proof to employers to show that the illness is not work-related.

Presumption laws usually apply to public entity first responders and create a “presumption” that certain ordinary diseases are work-related. Presumption laws vary by state but include diseases of the heart and lungs, cancers, PTSD and COVID-19. These diseases are common in the general public, and there is disputed evidence on a connection to increased occupational risks.

Shifting the burden of proof to employers, and creating different classes of injured workers goes against everything that the grand bargain of workers compensation was based on.

There are many challenges around presumption claims, including:

• Ambiguity of presumption law language
• Sunset language
• Complexity of presumptions and rebuttal process
• Litigation propensity
• Claim frequency
• Latency periods
• Interaction with other benefit systems
• Post-employment statute of limitations
• Non-attribution clauses (e.g., cannot reduce benefits because of smoking)

Currently 37 states cover some form of PTSD for first responders. 33 states have presumptions involving cancer for firefighters, and only 13 of those state specifically define the cancers covered. 17 states enacted presumptions for COVID-19.