Rousmaniere: Presumption Laws: Sausage Making On Display

Half of the states have enacted so-called presumption laws, designed to ease access to workers’ compensation coverage for specific health conditions, passed usually on behalf of specific classes of workers. Unfortunately, good intentions for a few tell only half the story. Enacting a presumption law can be a dreadful exercise in sausage making.

More states are passing these laws. Two legal writers, Judge David Langham, writing for WorkersCompensation.com, and Thomas Robinson at Lexisnexis, greatly helped me to understand them.

Presumption advocates in the workers’ comp system say that presumption is needed to overcome inefficient and inequitable burdens of workers deserving coverage for certain conditions.

The disputing party enjoying presumption does not have to prove; the opposing party has the burden to disprove. Judge David Langham wrote in WorkersCompensation.com on May 8 of this year (The Burden of Proof Matters), “A party with the burden of proof, to prevail, must demonstrate the necessary facts at trial.”

Citing a rule in baseball, "the tie goes to the runner." He goes on to write, “that essentially means that a tie may well go to the party that does not have the burden. The party without the burden might in fact prevail at trial without presenting any evidence.”

A benefit system (workers’ comp is one) can use presumption to make efficient and equitable awards under well-defined circumstances, for instance when fact-finding is not feasible or simply not cost-effective for smooth operation.  But passing a presumption law may cause some uncomfortable features of the system to come into view.

These proposals in workers’ comp induce people to think more deeply about significant health exposures which the workers’ comp system has not adequately addressed. They are cancers and post-traumatic stress disorder (PTSD).

Enactment triggers a search for medical expertise on causality for the named conditions. The needed expertise is likely very unevenly distributed within the medical community. Over time, competency in the medical community hopefully grows, by way of trial and error.

One aspect of not having adequately addressed these exposures are flaws, even after passage, in studying them. That includes pertinent claims experience, in-state and nationally.  Legislators embark on a politically perilous adventure half blind.   

Presumption proposals are usually made on behalf of public safety workforces, and more narrowly on first responders. Accordingly, I talked with the National League of Cities, which assists very many localities and municipal insurance pools to insure first responders.  The NLC told me that melding state experience for a general assessment is infeasible. Yet, this kind of “meta” study is routinely done by researchers today. Those I talked with were unaware of the NLC’s own study performed about a decade ago.

We see a national pattern of firefighter unions dominating the legislative process, which may include a politically-selected temporary task force.  Other workforces such as teachers are shoved aside.  Connecticut and Florida, states with horrific school shootings, followed this scenario in the past 12 months, leaving the teachers out of new PTSD presumption laws benefiting first responders.

Abandoning teachers reflects a weakness of organized labor -- the decline in organized labor’s involvement in state politics. I do not think that a strong AFL-CIO in a state would not permit one union to so dominate bill drafting.

Scientific research may be mis-read. Presumption advocates repeatedly point to reports of higher incidence of a condition within a class of worker compared to other persons. Many studies have been done on cancer risks among firefighters. Frank Neuhauser of the University of California at Berkeley recently wrote an article in which he asserts that these studies may not be as credible as they appear to the unskilled reader of research.

In his characteristically provocative style, Neuhauser titled his paper, “Cancer presumptions for firefighters: good policy or giveaway?” His important message is that relative risk of cancer studies can be seriously flawed, in ways one doesn’t need a PhD in statistics to grasp.

He writes that many studies suggest that “prostate, testicular and non-Hodgkin lymphoma are possibly elevated among firefighters.” Unfortunately, he found that the researchers very often failed to pay heed to factors that can compromise matching fire fighters with a comparison group. (Bear in mind that as cancers have long latency periods, comparisons need to be placed decades into the past).

Bias #1:  Firefighters, being on pubic payrolls, probably had much better health insurance coverage and their cancers may have been better diagnosed.

Bias #2: Firefighters have traditionally been predominately white; cancer incidence is well documented to vary by race. The comparison group might be more mixed in race.

Bias #3: Firefighters may be fitter than the comparison group; they may live longer. As cancers tend to show up in men after 65, more firefighters may have cancers simply because they live long enough to have them.

Let’s sum up. Presumption laws reflect a commendable recognition of significant exposures. But their claims experience has not been well analyzed. A struggle ensues to build up expertise.  Scientific research might not be read critically enough. The legislative process can be dominated by a relative very few, throwing other workers out into the cold.  This is a picture of a workers’ comp system under challenge.

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