Issue: Presumptions

Jack_crop 72dpiSection 20 of the Longshore and Harbor Workers’ Compensation Act (33 U.S.C. 920) contains several key presumptions.  It states:

In any proceeding for the enforcement of a claim for compensation under this Act it shall be presumed, in the absence of substantial evidence to the contrary –

  1. That the claim comes within the provisions of this Act.
  2. That sufficient notice of such claim has been given.
  3. That the injury was not occasioned solely by the intoxication of the injured employee.
  4. That the injury was not occasioned by the willful intention of the injured employee to injure or kill himself or another.

What Is a Presumption?

A presumption is a procedural tool that shifts the burden of proof.  It is not evidence.  It does not strengthen a party’s case.  What it does do is advance a party’s case by shifting the burden of proof on an issue to the other party.  The section 20 presumptions are for the claimant’s benefit in Longshore cases.

Rebuttable Presumptions

The section 20 presumptions are “rebuttable”.  The employer can rebut each of the presumptions by providing “substantial evidence” to the contrary.  “Substantial evidence” is “sufficient to support a rational conclusion by a reasonable person”.  It does not have to be sufficient to decide an issue by a “preponderance” of evidence.  The employer does not have to provide sufficient evidence to defeat the claim at the rebuttal stage (but the employer can lose at this stage).  The employer must produce “substantial evidence” to remove the presumption from the case.

Once a presumption is rebutted it drops from the case, and the issue in question must then be decided by a preponderance of the evidence based on consideration of the record as a whole.

The Section 20(a) Presumption

“(a) That the claim comes within the provisions of the Act.”

I discussed this presumption back on April 19, 2012, so this will merely be a summary.

This presumption arises at the point at which the claimant makes his prima facie case.  To do this, the claimant must show that he has suffered some harm or pain and that an accident occurred or working conditions existed that could have caused the harm.  Subjective complaints of pain, standing alone, are sufficient to establish the prima facie case.  The claimant is not required at this stage to produce any additional evidence, medical or otherwise.  He does not have to trace his injury or harm to a specific time, or diagnose the source of his pain.

At this point the section 20(a) presumption comes into play and provides the claimant with a rebuttable presumption that the injury is causally related to his employment.

The employer must then try to rebut the presumption by providing substantial evidence that the alleged accident did not happen, or by providing substantial evidence that severs the connection between the alleged disability and the work environment.  The employer needs a combination of medical evidence (an unequivocal medical opinion that the injury or harm could not have been caused by the work environment), a favorable credibility determination by the Administrative Law Judge, or negative evidence (records do not corroborate the claimant’s version of events).

The section 20(a) presumption has limits.  It does not apply to:

  1. Establish the fact of injury,
  2. Establish jurisdiction or coverage,
  3. Establish nature and extent of disability,
  4. Establish a loss of wage earning capacity.

NOTE:  In spite of frequent references to a “presumption of coverage” in the Longshore Act, there is, in fact, no such presumption in the law.  There is, however, the section 20(a) presumption of causation.

The section 20(a) presumption establishes a causal connection between the harm and the claimant’s job.  If the employer is unable to rebut the presumption then the claimant wins on the issue of causation.  If the employer successfully rebuts the presumption then the issue of causation must be decided based on consideration of the record as a whole with the claimant bearing the burden of proof.

The Section 20(b) Presumption

“(b) That sufficient notice of such claim has been given”.

There are two particular timeliness provisions with regard to claims in the Longshore Act.

Section 12(a) states that, “Notice of an injury or death in respect of which compensation is payable under this Act shall be given within thirty days after the date of such injury or death ….”

Section 13(a) states that, “Except as otherwise provided in this section, the right to compensation for disability or death under this Act shall be barred unless a claim therefore is filed within one year after the injury or death ….” (two years in occupational disease cases)

The section 20(b) presumption places the burden of proof on the employer to rebut by substantial evidence the presumption that the claimant has met the notice and claim timeliness requirements.

NOTES regarding the section 20(b) presumption:

Even without the presumption, the employer will find it difficult to prevail on timeliness issues.  The U.S. Department of Labor (DOL) can excuse the untimely section 12 notice requirement unless the employer can show that it has been prejudiced by an untimely notice of injury, and the Administrative Law Judges and Benefits Review Board are reluctant to deny claims based on issues of untimeliness.

The federal circuit courts of appeal disagree on whether the section 20(b) presumption applies to both the sections 12 and 13 requirements.  The Benefits Review Board, however, applies the section 20(b) presumption to both the notice and claim filing requirements.

Before it can challenge timeliness, the employer must show that it satisfied the requirement in section 30(f) that the injury must be reported to DOL within 10 days on Form LS-202.  If Form LS-202 is not filed, then the timeliness requirement does not begin to run.

The Section 20(c) Presumption

“20(c) – That the injury was not occasioned solely by the intoxication of the injured employee.”

Section 20(c) must be read in conjunction with section 3(c).  The Longshore Act makes a defense available to the employer.  Section 3(c) states, “No compensation shall be payable if the injury was occasioned solely by the intoxication of the employee or by the willful intention of the employee to injure or kill himself or another.”

An employer asserting the section 3(c) intoxication defense must first rebut the section 20(c) presumption that the injury was not occasioned solely by intoxication if it is to prevail.

The requirement that intoxication be the “sole” cause of the injury places a heavy burden of proof on the employer even if it manages to rebut the presumption by producing substantial evidence that the claimant was intoxicated and that the injury was caused solely by the intoxication.  Practically speaking, the employer must conclusively rule out every other possible contributing cause of the accident.

This situation emphasizes the necessity for comprehensive and immediate accident investigation, including drug and alcohol testing, photographs, identification of witnesses, and preservation of physical evidence.

It is important to remember that while intoxication might be the primary cause of the death or injury, that does not mean that it is the “sole” cause.  If any other possible contributing factor is identified then the presumption is not rebutted and the 3(c) defense fails.

The Section 20(d) Presumption

“(d) – That the injury was not occasioned by the willful intention of the injured employee to injure or kill himself or another.”

Once again, the section 3(c) defense provides that, “No compensation shall be payable if the injury was occasioned solely by the intoxication of the employee or by the willful intention of the employee to injure or kill himself or another.”

Once again, an employer asserting this defense must first rebut the section 20(d) presumption that the injury was not occasioned by willful intent.

This presumption comes into play most frequently in cases involving fights at work or in cases involving the suicide of the injured worker.

If a claimant is involved in an altercation on the work premises, the presumption under section 20(d) is that any injury he suffers is not the result of his willful intent to injure himself or another.

Since an injured worker would be extremely unlikely to admit that he was injured in the course of willfully intending to injure another person (possibly exposing himself to collateral liability or criminal charges) it is difficult to rebut the presumption.  In the circumstances following a work fight, the injured worker will invariably claim that he was an innocent bystander or the victim of unprovoked aggression.  As will all others in attendance.

Cases involving suicide are more challenging on the issue of causation.

There are two presumptions available to the claimant in this circumstance.  The section 20(a) presumption of causation applies as well as the section 20(d) presumption against willful intent.

So, in basic terms, the survivor who files a claim for benefits under the Act has two presumptions in his/her favor:  1) that the death is related to work, and 2) that the death was not the result of willful intent on the part of the deceased to injure or kill himself or another.

The employer may rebut either of the presumptions by producing substantial evidence to the contrary.  If the presumptions are rebutted, they drop out of the case, and the issues are then decided on the record as a whole by a preponderance of the evidence.

The employer may then try to defend the claim under section 3(c), by establishing that, in the event of suicide, that the suicide was the result of willful intent on the part of the deceased.

The first question that may arise is, can suicide not be the result of willful intent, especially where there is a “suicide note” left behind, or there are other indications of pre-planning?  The mere fact of suicide, however, does not establish willful intent.

The concept of “irresistible suicidal impulse” has evolved in cases involving suicide.  If the decedent’s suicide was caused by an irresistible suicidal impulse resulting from an employment related condition then this overcomes willful intent and the section 3(c) defense fails.

Recently, the federal Ninth Circuit Court of Appeals has changed its focus in its causation analyses away from the question of the existence of an irresistible impulse resulting from employment related conditions into an analysis more in terms of a chain of causation based on whether the work injury and its effects precluded the formation of a rational and willful intent to commit suicide.

The Ninth Circuit states that a survivor’s claim in the case of suicide is compensable where there is, “a direct and unbroken chain of causation” between a compensable work related injury and the suicide where the injury and its consequences directly result in the claimant’s loss of normal judgment.  In the opinion of the Ninth Circuit, this approach better comports with modern psychiatry and the no-fault nature of the Longshore Act.

Once again, it is important to remember that the section 20 presumptions are rebuttable.  If the employer fails to rebut a presumption by producing substantial evidence, then the claimant will prevail on that issue.

John A. (Jack) Martone served for 27 years in the U.S. Department of Labor, Office of Workers Compensation Programs, as the Chief, Branch of Insurance and Financial Management, and the Acting Director, Division of Longshore and Harbor Workers’ Compensation.  Jack joined The American Equity Underwriters, Inc. (AEU) in 2006, where he serves as Senior Vice President, AEU Advisory Services and is the moderator of the AEU Longshore Blog.

 

ISSUE: Fights at Work

I’d like to discuss a contentious issue: fights at work between coworkers.  In the process we’ll see two more examples of the application of the Section 20 presumptions.

It is obviously a problem for an employer if a fight occurs at work between and among coworkers or between supervisors and employees.  And among the problems is the likelihood that a fight will result in workers’ compensation claims being filed by the participants; or as they invariably refer to themselves after the fact, the innocent bystanders, the peacemakers, or the innocent victims of aggression.

Since there will be a wide range of contradictory stories in the aftermath of a fight, facts are the key in these cases.  But an understanding of several provisions in the Longshore Act is necessary for the proper analysis of the facts.

Section 2(2) (33 U.S.C. 902(2)) states, “The term ‘injury’ means accidental injury or death arising out of and in the course of employment … and includes an injury caused by the willful act of a third person directed against an employee because of his employment.” 

Section 3(c) states, “No compensation shall be payable if the injury was occasioned by the … willful intention of the employee to injure or kill himself or another.”

Section 20 states, “In any proceeding for the enforcement of a claim for compensation under this Act it shall be presumed, in the absence of substantial evidence to the contrary –

(a)    That the claim comes within the provisions of this Act.

(d)    That the injury was not occasioned by the willful intention of the injured employee to injure or kill himself or another.”

So, there’s a fight at work, an employee is injured, and he files a claim for compensation under the Longshore Act.  The first question is, under Section 2(2), did the injury “arise out of” and occur “in the course of” employment.  And if the injured worker satisfies the initial (light) burden of establishing his prima facie case (that he has suffered some harm and working conditions existed that could have caused the harm), then he has the benefit of the Section 20(a) presumption to supply the needed causation.

At this initial stage the employer must produce substantial evidence to overcome the presumption of causation.  For example, was the fight a result of purely personal matters, based on the social relationship of the participants outside of work?  Did the fight have nothing to do with work at all, but simply happened to occur on the employer’s premises?  The employer will have to first produce substantial evidence to rebut the Section 20(a) presumption of causation, and once the presumption drops from the case, the employer must persuade by a preponderance of the evidence that the fight did not arise out of and in the course of employment. 

For the employer, completely severing the employment connection with the incident of a fight is difficult when the fight occurs within the time and space boundaries of the workplace.

If the employer cannot prevail on the elements of arising out of and in the course of employment, he looks at the defense provided by Section 3(c).  The claim is not compensable if it was occasioned by the willful intention of the employee to injure or kill himself or another. 

Here again, there is a presumption that helps the claimant.  Remember, under Section 20(d) the presumption in favor of the claimant is that the injury was NOT occasioned by such willful intent.  In order to prevail under Section 3(c), the employer must produce substantial evidence to rebut the presumption of Section 20(d).  And again, once the presumption is rebutted and drops from the case, the employer must persuade by a preponderance of the evidence that the injury was occasioned by the willful intent of the claimant to injure himself or another.  Proving “willful intent” is a heavy burden of proof.  If the claimant did not start the fight, then Section 3(c) won’t help the employer.

Here is where carefully documenting the facts is the key.  It will be a rare claimant who admits that he started a fight, or that he “willfully intended” to injure another.  According to the claimant, it is always the other fellow who had the willful intent.  And remember, Section 3(c) focuses on the mental state of the claimant, not on any of the other participants.

So the first question is, did the injury arise out of and in the course of employment as required by Section 2(2)?  The claimant has the Section 20(a) presumption to shift the burden of proof to the employer on this question.  Second, is the injury not compensable under Section 3(c) because it resulted from the claimant’s willful intent to injure himself or another?  The claimant has the Section 20(d) presumption to shift the burden of proof to the employer on this issue. 

Let’s assume that the employer produces substantial evidence to rebut the presumptions in favor of causation and against willful intent, and the case must be decided by a preponderance of the evidence on the record as a whole.  The employer has met its initial burdens, but it faces a difficult case.  The case will turn on the behavior and intent of the claimant and other participants and witnesses on the issue of willful intent and on the circumstances that may sever any connection between the fight and the workplace.

What if the fight occurs in the parking lot across the street from the employer’s premises?  We’ll think about that next time.