Presumption Junction

By: Mark Webb

Presumptions have been part of California’s workers’ compensation system for a very very long time. The Courts have repeatedly said the foremost purpose of a presumption of industrial causation found in them is to provide additional compensation benefits to certain public employees who provide vital and hazardous services by easing the burden of proof of industrial causation.


The first of these presumptions – for hernias – was added in 1935. Given the now lengthy list of presumptions for a multitude of public employees, one might agree with the comments suggesting the presumptions are largely dependent upon whatever group it is asking for them from the Legislature and not the product of some overarching public policy.


This presumption landscape changed, somewhat, with COVID-19. For the first time, the Legislature created presumptions for both public-sector and private-sector employees. The requirements to secure this presumption vary between public safety and health care employees (the so-called “frontline” presumptions) and employees at whose workplace there was a COVID-19 outbreak (“outbreak” presumptions).  Where the worker’s paycheck comes from, however, is not an issue that should be dwelled upon for too long. The plenary authority of the Legislature we so often hear about extends to the ability to create a presumption of compensability for any group of workers, hopefully limited at least by the important services they provide and to the relative certainty that such workers are exposed to injury or illness in greater proportion that the community as a whole.


So, the various requirements to make a workers’ compensation claim for COVID-19 contained in Senate Bill 1159 (Hill) tacitly acknowledge the greater risk employees are at either because of the nature of their employment or the place of employment having a documented outbreak of cases at the time the claim is made.  That would seem to be how claims have been adjudicated for over a century since the California Supreme Court addressed compensability of death from the flu in San Francisco v. Industrial Acc. Com (1920) 183 Cal. 273.


But the Legislature has not shown its appreciation of the nuances of risk. Instead, it has been subject to lobbying from representatives of employees (now public and private) whose mantra is “just say yes”.  The workers’ compensation system has never been designed to acquiesce to this demand.


The Grand Bargain has its limits, best defined as providing compensation for injuries arising out of and in the course of employment. Whether it is a claim for most workers having to prove this basic set of facts or, because of a presumption, requiring an employer to disprove the existence of that occupational nexus, the causal connection to employment and the risks it presents remains.


And thus, claims subject to a presumption may still be denied and those denials will be upheld by the Appeals Board. That reality then begs the bigger question – if compensability follows the risk of occupational exposure to illness or injury then why do we need presumptions at all?


Note: The opinions expressed herein may or may not be those of Workers’ Comp Executive. Mark Webb is a former Arizona insurance regulator, insurance company chief compliance officer, and is an expert in corporate governance, risk and compliance. He is the owner of Prop 23 Advisors.