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005 The Section 20(a) Presumption
Transcript of 005 The Section 20(a) Presumption
There are two Section 20 presumptions...
the Bronx Section 20 presumption, and
the Longshore Act Section 20(a) presumption.
The Bronx Section 20 presumption:
Presumption: I will NEVER be able to afford to sit in Section 20 at Yankee Stadium....
Note -- this presumption cannot be overcome....
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.
It is like being Al Gore in 1980... you can
win, and still lose as a matter of law!
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.
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”.
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?
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.
Lisa Loeber's Cat Izzy
Margaret Fuller's Pups
Max and Scooter
Jim Aulita's pup, Caesar
Once the presumption is rebutted, the parties are on a
level playing field ...
Jennifer Pappas' "Eddie"
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.
Query: Are courts taking harder looks at the Section 20 presumption?
Maria Farese and her
Section 20 in Yankee Stadium
is Right Behind Home Plate...
Presumption: I will never afford Section 20.
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.
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
PURPOSE 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
LANGUAGE OF THE SECTION 20(a) PRESUMPTION