Wednesday, May 14, 2014

Presumptions and Tails

In the past I have opined that presumptions more often than not, in workers' compensation cases, result in more litigation rather than lessen the burden.

The reason is largely psychological - there are many employers, even in government settings where most presumptions seem to apply, who feel offended for some reason when an employee gets to receive benefits under the name of workers' compensation when the qualification seems tenuous.

A recent Colorado Court of Appeals case highlights this conflict.

Colorado Revised Statutes Section 8-41-209 provides that cancers of the brain, skin, digestive system, hematological system, or genitourinary system in firefighters will be presumed to have been caused by their employment if they have been on the job five years or more.

Colorado is one of 32 states that have some form of firefighter/cancer presumption in their workers' compensation laws.

Russell Andrews was hired as a firefighter for the City and County of Denver in October 2004, but for the first 17 weeks of his employment Andrews was enrolled at the Rocky Mountain Fire Academy as a probationary firefighter. He wasn't sworn in as a member of the fire department until February 2005.

But Andrews had spent four years as a volunteer firefighter for the Elbert Fire Protection District before being employed by Denver.

Doctors diagnosed Russell Andrews with chronic myelogenous leukemia in February 2010 – almost five years to the day after he took his oath of office as a firefighter.

Andrews filed a claim for workers' compensation benefits for his cancer treatments, seeking to invoke the Section 8-41-209 presumption. Denver denied the claim, arguing that Andrews did not meet the statute's mandate of five-years of "employment as a firefighter" to trigger the presumption.

Denver lost at the trial level.

The trial judge ruled that Andrews' four years as a firefighter in Elbert County and his time spent at the fire academy could be included in the length-of-employment calculation, giving Andrews more than the required five years of service.

The Industrial Claim Appeals Office upheld the judge's decision. 

In a unanimous panel decision last Thursday, the Court of Appeals agreed, noting that the state Workers' Compensation Act expressly includes "all members of volunteer fire departments" within the definition of an "employee." 

Denver also argued that Andrews' time as a probationary firefighter should not be included in the calculation of the length of his employment, trying to use a California case to support its position.

Rejected! Because firefighters and fire recruits are each specifically defined by California's statutes, while Colorado law makes no such distinction, the court did not find the citation persuasive. 

I know that municipalities try to guard every penny, particularly when it comes to ameliorating workers' compensation costs.

So presumptions, particularly about cancer for public safety personnel, chafe the human resources and risk management departments of government.

And these presumptions do not have solid support in the medical and scientific communities.

Last November, the National Institute for Occupational Safety and Health released a study indicating that numerous cancers already targeted by state presumption statutes do not have a significant excess incidence or mortality in firefighters as compared to the rest of the population.

The Washington-based National League of Cities made a similar assertion in a study it conducted in 2009, although the International Association of Fire Chiefs later attacked that report as being based on "a subjective and highly questionable methodology to review the literature on cancer among firefighters."

But frankly it doesn't matter what the studies say. As mentioned, nearly every state has some public safety presumption statutes and those are the product of what drives most everything in workers' compensation: politics.

In the world of politics the people who provide us with safety services wield a lot of power - trying to topple presumption statutes, or challenging them in court, is nearly impossible.

So, while I find presumptions not particularly helpful in workers' compensation cases, the reality is that they are a part of our workers' compensation statutes, and attempts to defeat presumptions rarely succeed - they only drive up the cost of litigation, and in the end, the cost of claims when benefits are not quickly provided and that experience modification factor trails years behind when a case should have closed...

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