COVID Presumptions

May 28 2021 | Committees

Legal presumptions are expanding in the workers’ compensation field for COVID-19 cases.  A presumption of law serves as a rule of law which declares that one fact is presumed to exist if another fact or set of facts is proved.[1]  Legal presumptions usually arise from considerations of public policy; for purposes of convenience; from a desire to provide an escape from a dilemma; or to force a litigant to whom certain information is more easily accessible to make it known.[2]  Louisiana workers’ compensation law has previously recognized presumptions for firefighters’ Heart/Lung Act[3], firefighters’ Cancer Act[4], the intoxication defense[5], employee status[6], and EMS, firefighter, and police PTSD.[7]  The question facing jurisdictions across the United States is how to address COVID-19 related injuries.  Some states are utilizing their workers’ compensation occupational disease laws.  In Louisiana, an occupational disease is a disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease.[8]  Several states have now redefined their occupational disease laws to presume that COVID-19 related claims are compensable under those states’ workers’ compensation laws.  Connecticut, Florida, Kentucky, Michigan, Missouri, New Hampshire, and North Dakota used Executive Orders or Administrative Action to make presumptions that COVID-19 claims are compensable.[9]  Alaska, California, Illinois, Minnesota, New Jersey, Utah, Vermont, and Wyoming’s legislature enacted COVID-19 presumptions in their respective laws.  Some of these presumptions made by both legislation and executive order covered only certain employees and/or were for a limited time and have expired. In the 2020 regular session, Louisiana’s legislature considered SB 475 covering essential workers’ COVID-19 related claims.  The bill was not passed.

 

William "Trey" Mustian, III
Stang & Mustian

Written on behalf of the Workers' Compensation Committee.

 

 


[1] David Kaiser, Presumptions of Law and of Fact, 38 Marq. L. Rev. 253 (1955).

(1931).

[2] Morgan, Instructing the Jury Upon Presumptions and Burden of Proof, 47 HARV. L. REV. 59 (1933).

[3] La. R.S. 33:2581

[4] La. R. S. 33:2011

[5] La. R.S. 23:1081

[6] La. R.S. 23:1044

[7] La. R.S. 23:1036.1, 40:1374, 33:2581.2

[8] La. R.S. 23:1031.1(B).

[9] John Burton, Jr., COVID-19 as an Occupational Disease: The Challenge for Workers’ Compensation,



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