By Ann Gergen, Executive Director
In 2019 and early in 2020, a number of states passed or considered legislation to create workers’ compensation presumptions for PTSD in first responders. When COVID-19 hit, legislative focus shifted and things quieted a bit on presumptions.
Today, the issue of presumptions is again gaining momentum. Although we’re hearing continued talk about presumptions for PTSD for public safety workers, focus now seems to be mostly about legislation expanding cancer presumptions for firefighters.
Naturally, pools are seeking to evaluate the effects of new presumptions on workers’ compensation claims. Projections might be used as the basis to quantify potential exposures as well as address pricing and net position needs. Pools might also want projections to aid in legislative advocacy efforts.
Unfortunately, the impact of new presumptions on the frequency and severity of claims can be hard to project. When faced with a challenge like this, pools often turn to each other for shared experiences and advice. But, when it comes to presumption claims, other pools may not be useful points of comparison.
Depending on the jurisdiction, presumption proposals and underlying workers’ compensation benefits have significant variations. For instance, here are a few common ways cancer presumptions can differ:
- Eligible employees. Does the presumption apply to firefighters only or also other public safety personnel? Are volunteer firefighters covered?
- Covered cancers. Does the presumption apply only to certain listed cancers or are all types of cancer covered?
- Definition of exposure. Are certain cancer-causing agents listed in the legislation? How is exposure to dangerous conditions defined?
- Age limits. Does the presumption stop applying once a firefighter reaches a certain age?
- Length of service requirements. Must a firefighter work for a certain period of time before qualifying for benefits?
- Retroactive coverage. Is coverage extended retroactively by legislation?
- Coverage after employment. Does coverage extend beyond the time a person leaves employment? For how long?
- Rebuttable standard. What are the provisions under which the presumed condition can be rebutted by the public entity employer? What burden of proof is required?
- Physical exam required. Is a pre-employment physical required? Are ongoing physical exams required as a condition of the presumption applying?
- Tobacco use. Can use of tobacco by an employee be used to rebut the presumption claim?
These variations will limit the value of direct pool-to-pool cost projection comparisons. Your pool will be best served by analyzing your own membership and the specific parameters of your own jurisdiction’s presumption language.
That said, comparing presumption parameters and pool experiences in managing presumption claims can certainly provide some useful context and valuable information. As always, we encourage pools to share similarities and differences as well as to ask for input and advice from pooling peers.
For a basic overview of workers’ compensation presumption benefits and estimates, see this issue brief from the American Academy of Actuaries.
As mentioned, PTSD presumptions have had a significant impact on pools providing workers’ compensation coverage. We discussed this in detail in our June 2019 issue of Intelligence.
Be sure to check out the Cybrary (login required) for more detail about presumption legislation language in other jurisdictions as a point of comparison. Search terms like “cancer presumption” or “workers’ compensation presumption” and look at results tabulated from member pools and associations.
Ann Gergen is AGRiP’s executive director and a former pool administrator. She has worked closely with and for pools, public entities, reinsurers and related service providers throughout her career.