The Cancer Presumption in Workers’ Compensation

What is a legal presumption? 

Can a legal presumption be rebutted by sufficient contrary evidence?

Wisconsin workers’ compensation law contains many presumptions. For example, for firefighters, it is presumed that if a firefighter has cancer, the cancer is employment-related. The Statute applies to any State, County, or Municipal firefighter who has worked for ten years with at least two-thirds of the working hours as a firefighter who has cancer of the skin, breast, central nervous system, or lymphatic, digestive, hematological, urinary, skeletal, oral, or reproductive systems. For that firefighter whose disability or death is caused by cancer, the cancer diagnosis is presumptive evidence that the cancer was caused by employment. However, no presumption exists for firefighters who smoke cigarettes or use tobacco products for claims after January 2001. (Wis. Stat. §891.455 Presumption of Employment Connected Disease: Cancer)

Other presumptions in Wisconsin law include a presumption that a youthful worker (under age 27) is presumed to be able to earn the maximum wage rate by the time he reaches age 27, for purposes of Permanent Partial Disability, disfigurement, or death. For example, a McDonalds burger-flipper earning $10 per hour who has a severe burn is presumed (instead of the $200 or $300 he actually earns per week) to be earning $1,400 per week under the Youthful Age Presumption. Evidence of the worker’s likely inability to earn the maximum wage (due to cognitive or academic deficiency or similar lower earning work history) can be used to rebut the presumption and therefore limit the maximum Permanent Partial Disability or disfigurement award.

In a recent cancer case, the Pennsylvania workers’ compensation board found a firefighter cannot receive workers’ compensation benefits for prostate cancer because he failed to show his cancer was work-related despite a statutory presumption for firefighters. The firefighter began working for the City of Philadelphia in the 1970s and retired in 2006 after a diagnosis of prostate cancer. He filed a workers’ compensation claim saying his cancer stemmed from carcinogens he was exposed to while working as a firefighter, such as diesel fumes from fire trucks, second hand tobacco smoke from co-workers, and smoke from burning debris he encountered while fighting fires. Note he also acknowledged he smoked an average of a half pack of cigarettes daily since the 1960s. His doctor’s testimony that his carcinogen exposure caused the prostate cancer was rebutted by the City’s physician indicating that prostate cancer is typically more of a “disease of aging than it is of external influence.” The Judge, in denying the claim, noted “Any elevated risks for prostate cancer among firefighters might also be explained by other factors, such as detection bias, ethnicity and geography.”

The cancer presumption in Wisconsin (for non-smoking firefighters) would be more difficult to rebut, but factors such as family history may prove the “other evidence” necessary to rebut the presumption.

The High Cost of Fat

A recent study in the Journal of Occupational and Environmental Medicine, the official publication of the American College of Occupational and Environmental Medicine, in September 2016 reported that obese and overweight workers are more likely to result in higher costs related to workers’ compensation claims, especially for major injuries.

In a study analyzing 2,300 workers in Louisiana, Dr. Edward Bernacki of the University of Texas—Austin found that workers’ compensation costs and outcomes for obese workers (defined as a Body Mass Index of 30 or higher) incurred higher costs related to their workers’ compensation claim. This study noted that after three years about 10% of claims for significant injuries were still open, meaning the worker had not yet returned to work. Obesity and overweight did not play a role in the delayed return to work. However, for workers with major injuries, overweight was associated with higher workers’ compensation costs. In the group with the higher Body Mass Index, costs averaged about $470,000 for obese workers, $270,000 for overweight workers compared to $180,000 for normal weight workers (with a Body Mass Index between 25 and 30). The study made adjustments for other factors including the high cost of spinal surgeries and injections and, after making the adjustment for these factors, obese or overweight workers with major injuries were twice as likely to incur costs of $100,000 or more. Significantly, Body Mass Index had no effect at all on costs for closed claims or less severe injuries.

Previous studies (including a study in the Journal of Occupational and Environmental Medicine in 2015 linked obesity to a higher rate of workplace injuries and a longer time off. However, the cost effects were not studied until this recent assessment. The new results indicate obesity is a significant risk factor for higher costs in major workers’ compensation injuries.

One significant finding in the study was that more than three-fourths of the workers’ compensation claimants were overweight or obese. Further studies are planned. Previous studies include those from the National Council on Compensation Insurance, Inc. (NCCI) “How Obesity Increases the Risk of Disabling Workplace InjuriesEditor’s Note:  According to most studies, there is a strong correlation between Body Mass Index and injuries such as ankle fracture severity and increase risk of osteoarthritis. For workers’ compensation practitioners, one wonders whether these studies are a prelude to an assault on the “as is” doctrine. Each of us in our own practice can recognize some of the wide-ranging effects in costs of obesity, from special procedures for hospital treatment of obese patients such as open MRIs and more extensive surgical procedures to a reduced fuel economy in commercial vehicles due to fat drivers. Additionally, the cost of treatment for obese patients with work-related injuries increases the work-related injury potential to medical staff (lifting, transferring, etc.). Increasing admissions of severely obese patients leads to a corresponding increase in medical workplace injuries related to lifting and maneuvering obese patients. Workers’ compensation practitioners may see obesity as yet another “pre-existing condition” to surmount in future causation and extent of disability battles.

Young Workers More Likely to Get Hurt

 

If you are a younger worker, you are more likely to get hurt on the job.  That is the conclusion in a recent interesting article in Occupational Health & Safety: Protecting our Future: Young Worker Safety on the Job.

The article offers theories on why younger workers are hurt more often, as well as suggestions on what employers can do to protect their workers.   In many instances, younger workers are performing more physical jobs, lack experience or proper training, and may be less likely to speak up or ask questions about what is being required.  The article offers some great suggestions for employers, including:

Remember that young workers are not just ‘little adults.’ You must be mindful of the unique aspects of communicating with young workers.”

This is a helpful reminder for all of us in positions of authority or supervision.

It should be noted that younger workers (under age 27 in Wisconsin) carry a “presumption” of maximum earnings for permanency benefits.  Wisconsin law recognizes that a worker’s earning capacity before age 27 may not be an adequate representation of their actual earning power/capacity.  Injured workers–under age 27–are wise (beyond their years) to consult with an experienced attorney. 

Federal “Takeover” of Work Comp?

State workers’ compensation laws are facing increased scrutiny from the federal government.  As reported by NPR, the U.S. Labor Department is exploring the idea of further oversight of state-run workers’ compensation systems.  The full Labor Department report can be found here.

Traditionally, beginning with Wisconsin in 1911, individual states enacted, amended, and ran their own workers’ compensation system.  These systems certainly shared the similar overall framework of the “grand bargain” of work comp: an inability to sue an employer in exchange for defined benefits without proviing fault.  Within this framework, though, the state-led process allowed each state to tailor its approach in line with the industries of their state and particular legislative goals.

However, in the past decade or so, state legislative enactments around the country have significantly reduced (and in some cases, slashed) worker’s compensation benefits for injured workers.  A deep dive on the effect of these efforts was revealed in a series of stories by ProPublica and NPR.  The new Labor Department report echoes the refrain of these stories–indicating:

Despite the sizable cost of workers’ compensation, only a small portion of the costs of occupational injury and illness is borne by the employer. 

Costs are inappropriately shifted to the worker, their families, and the government (through other benefit programs).

Furthermore, with lowering costs on employers for workplace injuries, those employers–especially “high hazard employers”–have less incentives for safety or preventing injuries in the first place.  

As such, the Labor Department suggested the need to explore federal oversight or minimum federal standards for state workers’ compensation laws.  It even suggests the potential to reconvene a national commission–last seen in the 1970s–to study state workers’ compensation systems.  Any of these proposals would be major sea changes to the traditional state-led approach.

Whether any of these proposals will move forward is unknown, but one fact remains: based on legislative attempts to reduce injured workers’ benefits, the state-led workers’ compensation systems face increased scrutiny.   Pushed too far against workers, these laws face constitutional challenges–and ultimately the threat of federal oversight or takeover.

 

 

Don’t Believe What Insurance Carriers Say: Workers Do Finish Retraining Programs

“He’ll never go back to school.”  “He’ll never complete school.”

As a representative of injured workers, I hear those refrains on repeat from insurance carriers.  And, guess what?  It’s just not true.

Vocational retraining claims straddle the line between being a worker’s advocate and being their social worker.  Under the law, if an injured worker has permanent limitations following an injury that does not allow them to return to their former employer, they can pursue vocational retraining benefits–which includes receiving weekly workers’ compensation benefits (2/3 of weekly wage) along with compensation for meals, parking, books, mileage and tuition.  As an advocate, I’m urging an injured worker to pursue retraining to maximize their benefits under the law.  But more importantly, I put on my “social worker” hat to encourage these workers to return to school as a means to help themselves, their families, and society as a whole.

Restoring an injured workers’ earning capacity serves as the underpinning behind vocational retraining benefits.  Simply put, we want to incentivize working.  If a worker is too injured to return to their old line of work, let’s try to get that worker retrained (presumably to a less physical field) so they can reenter the workplace and be a productive member of the economy.  Social work and advocacy fit together when encouraging a worker to go back to school.

However, far too many insurance carriers scoff at the viability of injured workers returning to school–especially after decades of absence from a school setting.  Even though not everyone is a great school candidate, I’m amazed each and every day watching my clients pursue their retraining with passion and vigor.   I feel pride and vindication when that same client forwards me a copy of their certificate or diploma after completing the program.  That document is immediately forwarded to the insurance carrier.  (I recently forwarded a completed diploma from the University of Wisconsin-Milwaukee and one from Milwaukee Area Technical College).

Most workers just want to be back working.  They want to earn income, provide for their families, and find purpose.  If a work injury knocks them out of their old job, most workers embrace the idea of going back to school and finding a new field that fits their limitations.   Even for individuals with limited eductional backgrounds, most schools provide incredible academic support or remedial programs.  Under Wisconsin law, we can claim vocational retraining benefits for remedial or GED programs, even before a worker begins a formalized program (though consulting with an attorney first is best).

I’d urge insurance carrier to not underestimate the efforts of a motivated worker.

 

Wisconsin Law Changes: Retraining Benefits Made Better

Injured workers now have greater access to vocational retraining benefits. The new law changes, while providing a number of employer-friendly provisions, also contained pro-worker enactments—especially for those injured workers who need to go back to school.

A major public policy goal of the worker’s compensation system is to restore an injured worker’s pre-injury earning capacity, meaning get the worker back to the wages they made before getting hurt. To facilitate that goal, if an injured worker has permanent limitations that do not allow them to return to their injury job, the worker can pursue vocational retraining benefits. Under Wisconsin law, these benefits are meant to compensate a worker during the entire schooling period. The insurance carrier is responsible for weekly maintenance benefits (at 2/3 of the employee’s average weekly earnings) during every week the worker is in school, as well as tuition, book, travel and meal expenses during school. Many retraining programs are for approximately two-year associate degree programs, but, depending on the worker’s pre-injury wages, the paid-for program could involve a bachelor’s degree or beyond.

In a victory for workers, the 2016 new law allows for prospective vocational retraining benefits. Historically, when a vocational retraining claim was “ripe” for presentation at a hearing was uncertain. Some administrative law Judges indicated that a retraining program only became viable and ripe for hearing when the worker actually was attending classes. Unfortunately, many injured workers—who cannot return to their former employment and have no other source of income—do not have the financial ability to go to school on their own. As such, these workers could not enroll in or begin school unless the workers’ compensation insurance carrier was ordered to pay for prospective schooling.

The legislature clarified this issue, and effective March 2, 2016, Judges have the authority to issue prospective orders for vocational retraining benefits (Wis. Stat. § 102.18(1)(b)2., as amended by 2015 Wis. Act 180). Specifically, a carrier can be ordered to pay for a future course of instruction, along with the corresponding vocational retraining benefits/expenses, for either a DVR-sponsored or private rehabilitation counselor program.

Another pro-worker provision of the 2016 law is that injured workers are now allowed to work up to 24 hours per week while undergoing vocational retraining without those earned wages reducing their weekly worker’s compensation maintenance benefits (the 2/3 wages). Previous law required the reduction in work comp benefits for this part-time—thereby creating a disincentive to work. The new law (effective March 2, 2016) acknowledges the practical reality for a worker returning to school. The injured worker now can engage in part-time school and part-time work, maintaining the worker’s connection to the labor market.

Vocational retraining benefits can be difficult for an injured worker to pursue, but the new 2016 law makes it easier.

Disclosure Bias In Workers’ Compensation

Dr. Sunita Sah

I read most things through the narrow prism of a lawyer representing injured workers and a Law Professor teaching Workers’ Compensation. I read with fascination Dr. Sunita Sah’s (M.D., MBA, Ph.D., Cornell University Professor) recent article in the New York Times (07/10/16) on “Disclosure Bias,” one of her research interests. Her theory: Although bias disclosure is supposed to act as a warning (to consumers, advisees, clients), it often has the opposite effect, making advisees more likely to follow biased advice.  For example, doctors view their own specialties as delivering more effective treatment than others to recommend treatment options. (chiropractors use hands, surgeons like scalpels, physiatrists prefer needles).

Dr. Sah’s research found that even (and especially) when the doctor discloses her bias, patients are more likely to follow the advice since the disclosure “creates increased pressure to follow the advisor’s recommendation.”  This increased pressure runs the gamut from recommendations on prostate cancer treatment to financial conflict.

In the workers’ compensation world, even though I disclose my lawyer’s preference when I advise clients on  things like choice of venue (Milwaukee or Madison), type of claim (occupational or traumatic), kind of treatment (surgery or pain clinic), or even case tactics (settle or go to trial), Dr. Sah’s research cautions against the unintended consequences of disclosure bias.  Since clients do not want to signal distrust to their advisor, or indicate I may be biased, the disclosure itself may become a burden on clients.  (One more thing to worry about. . . )