As any experienced individual in the worker’s compensation system will know, there is a basic concept in certain sections of the statute known as presumption. To be clear, there is a basic presumption which is simply an assumption of the law about a fact. This fact is considered true unless proven otherwise. The burden of proof is assigned to those trying to overcome this presumption.
A separate aspect is what is known as “rebuttable presumption” which is a specific type of presumption that can be refuted or disproved by presenting evidence to the contrary. In prior blogs, I have talked about evidence-based medicine, this is simply the most current clinical information available, and on which the state of practice should reside.
The issue here is that too many diagnoses or disease processes are considered compensable solely on the basis of a presumption. It is noted in many jurisdictions that cancers in firefighters (or heart disease in police officers) are presumed to be a function of that occupational activity. Statistically, one in eight (or 13%) of all women will experience a breast cancer diagnosis. Also, it is fairly obvious that 13% of all women are not firefighters. The question then becomes is a breast cancer diagnosis in female firefighters a function of the occupational activity or simply an ordinary disease of life? (Or prostate cancers in male firefighters)
The purpose of presumption is to speed up legal proceedings and develop efficiency in terms of a starting point for specific arguments. In several situations this would be appropriate, unfortunately, this is not an accurate assessment of the clinical situation, particularly in a worker’s compensation discussion.
Some would argue that presumptions level the playing field and establish fairness. Interesting concept, but in actuality not always applicable. Presumption is suggested in an effort to maintain consistency, but when dealing with clinical situations, each situation is exceedingly different, and a review of the clinical data must be completed so that the most appropriate determination as to the compensability of that particular diagnosis is correctly determined. Some would argue that presumption encourages settlement prior to the engagement. I would argue that this concept discourages a candid and comprehensive review of the clinical facts of the case.
In summary, in certain aspects of the law, presumption may accomplish its intended results. However, medicine (and medical decision-making) cannot be legislated, and the clinical facts of any diagnosis is a function of the entire clinical picture and not a declaration that cancer or heart disease is related solely to the occupation.
If there are specific findings related to that named occupation, then so be it, and this medical malady becomes a compensable event. However, blind obedience is not good medicine. I would encourage you to be aware of the statute within your jurisdiction, and which presumptions are rebuttable or not. In any event, obtaining a comprehensive clinical assessment and application of the most current clinical data would serve all parties in the most efficacious manner.
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