005 The Section 20(a) Presumption

tHE SECTION 20 presumption

There are two Section 20 presumptions...

• the Bronx Section 20 presumption, and
• the Longshore Act Section 20(a) presumption.

Section 20 in Yankee Stadium

is Right Behind Home Plate...

Presumption: I will never afford Section 20.

Once the presumption is rebutted, the parties are on a

level playing field ...

Rainey stands for the proposition that an

employer can present the most credible

medical or scientific evidence in the case, but

still fail to meet the "substantial evidence"

standard necessary to overcome the

Section 20(a) presumption.

Tanisha Cobb's

Party Animal

Mimi

There is a trend for Administrative Law Judge's to look beyond expert testimony in medically-based defenses, and to independently evaluate the underlying medical and scientific literature to reach a conclusion. Note Rainey vs. Director, OWCP, 517 F.3rd 632, 42 BRBS 11 (CRT)(2d Cir. 2008) It is apparent that presentation of medical and scientific evidence will be increasingly scrutinized in litigated cases.

It is like being Al Gore in 1980... you can

win, and still lose as a matter of law!

Query: Are courts taking harder looks at the Section 20 presumption?

Query: Have you seen cases where the ALJ acknowledges the employers evidence is superior, but still holds that it does not meet the substantial evidence test?

Presumption: I will NEVER be able to afford to sit in Section 20 at Yankee Stadium....

Note -- this presumption cannot be overcome....

Margaret Fuller's Pups

Max and Scooter

When an injured worker proves that he or she suffered some harm or pain, that an accident occurred or that working conditions existed which could have caused the harm he/she has met the prima facie burden and he is entitled to the benefit of the Section 20(a) presumption that the injury or death arose out of the employment.

In order to rebut the Section 20(a) presumption, an employer must present substantial evidence demonstrating that claimant's employment did not cause or aggravate his injury.

Lisa Loeber's Cat Izzy

Jennifer Pappas' "Eddie"

Jim Aulita's pup, Caesar

To overcome the Section 920(a) presumption, an employer must present substantial evidence, defined as “such relevant evident as a reasonable might accept as adequate to support a finding that that the claimant’s injury is not related to his workplace exposures”.

The Bronx Section 20 presumption:

http://newyork.yankees.mlb.com/nyy/ballpark/seating_pricing.jsp

Maria Farese and her

baby, Layla

Claimant Philosopher

French Philosopher

The purpose of the Section 20 presumption

is to create a level playing field...

However, courts & the BRB may

have taken the idea a little far.

Rene Descartes

LANGUAGE OF THE SECTION 20(a) PRESUMPTION

Section 20 of the LHWCA provides that it shall be presumed, in the absence of evidence to the contrary, that:

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

b. that sufficient notice of the claim has been given;

c. That the injury was not occasioned solely by the intoxication of the injured employee, and

d. That the injury was not caused solely by the willful intention of the employer to injure or kill himself or another

PURPOSE OF THE SECTION 20(a) PRESUMPTION

Workers' Compensation is designed to compensate without a showing of 'liability', and thus the injury is presumed work-related until proven otherwise

Congress also felt that employers and carriers would have greater resources to prove their positions, and thus gave the workers a presumption advantage