Friday, November 30, 2012

Presumptions Only Prolong Litigation

I'm not a big fan of legal presumptions, particularly in workers' compensation.

Presumptions are built into many workers' compensation systems, usually for public protection agency workers such as firefighters and police.

Most of these presumptions are for cancer.

In my opinion such presumptions tend to exacerbate litigation rather than reduce it - the reason is that the employer has no other recourse. It's either pay, or litigate until told to pay.

There is no compromise in between. An employer can't negotiate a middle ground settlement because the worker's position is that there is a presumption that may trump the evidence.

If the evidence is equivocal then the worker wins.

So the employer has no other option and cases tend to go on much longer than most "normal" claims.

The difficulty the parties, and the courts, have with presumptions is demonstrated by a recent California case - Pesko v. WCAB (City of Westminster) - for which the 2nd District Court of Appeal is currently mulling whether to grant a petition for a writ of review.

The Workers' Compensation Appeals Board (WCAB), in a split decision, denied Pesko's claim. The difference in opinion stems from how strict the evidentiary standard must be under the (ambiguous) controlling statute.

The controlling statute is Labor Code 3212.1 and the section of that statute granting the presumption states in relevant part:

"(d) The cancer so developing or manifesting itself in these cases shall be presumed to arise out of and in the course of the employment. This presumption is disputable and may be controverted by evidence that the primary site of the cancer has been established and that the carcinogen to which the member has demonstrated exposure is not reasonably linked to the disabling cancer. Unless so controverted, the appeals board is bound to find in accordance with the presumption."

A 2005 appellate case interpreting this section, City of Long Beach v. WCAB (Garcia), said:

"We hold that the statute means exactly what it says: to rebut the presumption, the employer must prove the absence of a reasonable link between the cancer and the industrial exposure to the carcinogen. A mere showing of an absence of medical evidence that the carcinogen has been shown to cause the particular cancer contracted by the employee is not sufficient to rebut the presumption."

In the Garcia case the court concluded that the employer had failed to demonstrate an absence of a reasonable link. The court essentially said that there needs to be affirmative evidence demonstrating that it is not logical that the cancer which is the subject of the claim was related to the employment:

"Thus, under the current version of section 3212.1, an employer demonstrates the absence of a reasonable link if it shows no connection exists between the carcinogenic exposure, or that any such possible connection is so unlikely as to be absurd or illogical. Contrary to the City's argument, the statute does not require the employer to prove "the absence of any possible link." (Italics added.) The statute requires proof no reasonable link exists. A link that is merely remote, hypothetical, statistically improbable, or the like, is not a reasonable link. The employer need not prove the absence of a link to a scientific certainty; instead, it must simply show no such connection is reasonable, i.e., can be logically inferred."

In the Pesko case, the WCAB panel of commissioners determined that Pesko had established a prima facie case by showing that he worked as a police officer for the City of Westminster, and that he developed cancer within the statutory time frame.

The employer cited evidence from Dr. Gary M. Stewart, the parties' agreed medical evaluator (AME). Stewart had testified that it was unlikely that Pesko's cancer was work-related. The AME explained that he believed that there was a "high probability that applicant's cancer was caused by nonindustrial human papillomavirus (HPV)." Stewart also cited the cancer's latency period and stated that he believed it was unlikely that the disease could have developed during the four years between Stewart's first day at the department and his date of diagnosis.

The majority in the opinion determined that the employer had rebutted the presumption with the AME's opinion.

Dissenting Commissioner Frank Brass, citing the Garcia case requirement that an employer to show that "no connection exists between (applicant's cancer and) the carcinogenic exposure, or that any such possible connection is so unlikely as to be absurd or illogical," explained that the medical evidence established that there is a link between throat cancer and the carcinogens to which Pesko was exposed.

"However, the AME discounts the link because he opines it is highly probable that applicant's throat cancer was caused by nonindustrial HPV," Brass wrote. "While the AME's reporting might be sufficient to establish causation absent the Labor Code Section 3212.1 presumption, it is insufficient to establish that any possible connection between applicant's cancer and industrial exposure is so unlikely as to be absurd or illogical."

Cancer cases are extremely expensive and particularly for cash strapped municipalities, can be a long term financial obligation. The motivation to contest such cases is very, very high - and runs contrary to the philosophical underpinnings of workers' compensation.

In most other situations where such presumptions are not applicable the parties likely would have compromised and resolved the issues without further litigation, but that can't happen in a presumption case. The claimant will want everything a successful presumption outcome would provide. The employer will be diametrically opposed, seeking to avoid any and all liability.

There is no room for compromise in presumption cases leading to protracted litigation.

In the meantime expenses run up for the employer and the claimant sits high and dry until someone stops appealing. In the Pesko case, the employee was diagnosed with cancer in December 2008 and the agreed medical examination report issued October 2009. The underlying Award after trial issued February 2012. If the appellate court grants the writ of review, an opinion likely won't issue until late 2013 - five years after the claim was made.

Doesn't this sound like civil litigation: employer faces big liability; employee gets starved waiting for the big judgement.

Isn't this the situation that workers' compensation was meant to avoid?

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