At the 2018 SAWCA All Committee Conference, a session discussed presumption laws in workers’ compensation. The speakers were:
- Karl Aumann – Chairman, Maryland Workers’ Compensation Commission
- Robert Stokes – Attorney, Flahive, Ogden & Latson (Texas)
Many states have presumption laws for first responders including firefighters, police officers, and EMTs. The purpose of these presumption laws is to shift the burden of proof on medical causation so that the disease is “presumed” to be work related unless rebutted by the weight of the evidence. Overcoming the presumption of compensability is very difficult as you have to prove that exposures outside of work are the cause of the disease. There is much controversy around these laws as there are mixed studies on whether or not first responders have a higher prevalence of certain diseases than the general public. It is thought that the passage of these presumption laws was driven as much by politics as science. The presumption laws are typically the largest cost driver for the workers’ compensation programs of public entity employers around the nation.
In the past, these presumption laws have focused on diseases of the heart and lungs. Heart attacks have been the leading cause of death in the United States for many years. In spite of this, legislatures around the nation passed laws providing that heart disease with police officers and firefighters was presumed to be work related. The thought behind this was that police officers and firefighters face unusual stress on the job and therefore there should be a presumption.
Several states now have a cancer presumption law where first responders, firefighters in particular, receive a presumption that their cancer is work-related. The thought behind these laws is that firefighters are exposed to a wide variety of cancer-causing agents at work and therefore it should be “presumed” that their cancer is work related. Thus, the firefighters did not have to prove which particular cancer-causing chemicals they were exposed to or when the exposure happened.
There is significant variation in state laws with regard to these cancer presumptions. Some states provide a presumption for all “cancer” while most states limit the presumption to certain forms of cancer. In 2018 there was more legislation around these presumption laws than any other issue in workers’ compensation as firefighter unions have been pushing to expand these laws and what cancers are covered.
The latest presumption issue driving legislation is around post-traumatic stress disorder. Some states do not allow for coverage of a “mental” injury without a corresponding physical injury. Several states passed PTSD presumption bills for first responders in 2018.
There is concern that presumption laws create a different classification of injured workers that have a lower threshold to prove compensability than the general public. For example, police officers responding to a mass shooting at a school could have a presumption of PTSD, but employees at the business where the shooting took place would not have the same presumption and may not be able to file a claim under state workers’ compensation statutes.