By David B. Torrey
WCJ, Pittsburgh, PA
David Langham & Chris Mandel, American Workers’ Compensation – A Study in Disparities and the Expanded Use of Presumptions (Sedgwick Institute, July 2020), https://www.sedgwick.com/assets/uploads/documents/Sedgwick-Institute_Workers-Comp_7.8.20-1.pdf.
In this important insurance industry white paper, the authors review the recent popularity of presumptions in workers’ compensation laws. They 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 These types of laws have, over the recent decades, been repealed, with most jurisdictions currently obliging the injured worker to prove his or her claim as in a tort case.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 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). My state, Pennsylvania, notably, was to emulate that approach in its enactments of 1937 and 1939.