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Don’t Presume the Presumption Has Been Applied Properly
AuthorJones, Melissa Lin
AdvisorMarch, Shawn C.
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In recognition of the humanitarian purpose of the District of Columbia Workers’ Compensation Act of 1979, D.C. Code as amended, §32-1501 et seq. and the legislative policy favoring awards even in arguable cases, a claimant is entitled to a presumption of compensability (“Presumption”) when applying for workers’ compensation benefits. By establishing a causal connection between the injured worker’s disability and a work-related event, the Presumption enables a claimant to establish entitlement to benefits more easily; however, an analysis of decisions issued by the Compensation Review Board from 2005 – 2019 reveals the Presumption frequently is misapplied. For example, the aggressor defense in work-related fight cases requires the claimant prove a connection between employment and the altercation, but despite the fact that proving the first prong of the Bird test satisfies the requirements for invoking the Presumption, if the claimant started the fight the claim is not compensable. Similarly, misapplication of the Presumption makes it more difficult for claimants to prove work-related psychological injuries because they must satisfy additional requirements (including a credibility requirement) not imposed on claimants who sustain physical injuries even though when invoking the Presumption any suspicion of deception should apply equally to both types of injuries. Moreover, contrary to Marc Galanter’s position in Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change, in District of Columbia private sector workers’ compensation cases, One-Shotter-Claimants (Have-Nots) have distinct advantages built into the architecture of the system, not the least of which is the Presumption, yet despite the advantages, because misapplication of the Presumption has little effect on the outcome of remanded cases, the Repeat-Player-Employers (the Haves) continue to come out ahead.