One of the problems with establishing presumptions of causation in a workers' compensation scheme occurs when lawmakers want to revise or constrict the application of a presumption to curtail abuses.
Once a presumption has been established it is very difficult politically to take it away even though in a practical sense, assuming the medical evidence is available, provision of benefits for an industrial disease should not be affected.
Such is the case in Florida as lawmakers in that state will be asked to limit a presumption contained in the state's 22-year-old "heart/lung" law that tuberculosis, heart disease and hypertension contracted by a first responder is an illness that arose in the course and scope of employment.
R.J. Castellanos, director of the state Division of Risk Management, told the Senate Budget Committee on Nov. 16 that the presumption, which is granted to all police, firefighters, and corrections officers who pass a pre-employment physical, has cost the state employees' workers' compensation system $30 million since 2003.
Castellanos is one of eight members on the Task Force on Public Employee Disability Presumptions, which was created as part of Senate Bill 1128, a package of pension reforms signed into law by Gov. Rick Scott on June 23.
The pension reform bill called for the task force to look at statutory disability presumptions – in both the retirement and workers' compensation systems across the nation – and report back with recommendations for legislative action by Jan. 1, 2012.
Jim Tolley, a task force member and governmental affairs director for Florida Professional Firefighters, told WorkCompCentral the debate over the Heart/Lung law already has begun with the filing of bills in the House and the Senate filed by State Rep. Frederick Costello, R-Ormond Beach, and Sen. Alan Hays, R-Umatilla.
The bills would allow employers to use the medical history and personal habits of Florida's first responders to rebut the occupational presumption by providing evidence of "other medical conditions or behaviors that are associated with the disease or condition subject to the presumption"such as cholesterol, body mass, or a history of tobacco and alcohol use which could have contributed to a claimant's condition.
In addition, the bills (House Bill 365 and Senate Bill 910) would limit the presumption to first responders who have worked for their current employer for at least five years and are under the age of 37.
Employers would have to rebut the presumption in those cases by a "preponderance" of the evidence for the limited group of responders still eligible for the presumption. Current law requires employers to present "competent" evidence to rebut the presumption, which is now provided to all first responders regardless of years of service.
Predictably, the Florida Police Benevolent Association and Florida Workers' Advocates (FWA), a claimants' lawyers' group, oppose the measures. But the legislation has picked up support from the Florida League of Cities, which operates a workers' compensation pool for member cities.
Tolley told WorkCompCentral that the task force also may call for specifying certain cancers to be presumed job-related for firefighters, police and corrections officers and that the panel also is debating whether to require wellness plans for police and fire departments.
These sort of changes to presumption laws could be expected during these difficult economic times when municipalities, state agencies, and other governmental bodies are searching for every possible savings.
If you are a regular reader of this blog, you know that I'm not a big fan of presumptions. The argument in favor of causation presumptions is that it saves claimants seeking benefits for terrible diseases and illnesses time, money and aggravation to get that which should be an entitlement.
In addition, proponents of such presumptions argue that in order to recruit new members to first responder occupations such benefits are necessary.
I don't think these arguments stand the logic test. If a disease or illness truly is occupational then the medical evidence will bear that out. Sure there will be some that are questionable and that is the purpose of the dispute resolution system - to ferret those out. In fact, a presumption law such as the one under attack in Florida is not an absolute presumption. It is a rebuttable presumption, so litigation continues and is probably more prolonged than normal as the parties seek to get substantial evidence to support their positions.
I also don't think that your typical recruit is even thinking about workers' compensation presumptions when they sign up for duty. Young people don't have such things on their radar screens when they are seeking a job.
Police and firefighters have powerful lobbies, and I'm sure this will be a significant political fight. It will be interesting to observe what happens in Florida. This may be the start of a new trend as other states start looking at what they can, and can not, afford while the nation tries to dig its way out of this prolonged recession.workers compensation, work comp, injured worker