The Found Dead Presumption

    This week, we are taking a look at the “found dead presumption” upon special request. I always encourage readers to reach out to me if you have a specific topic that needs to be addressed. This specific client insisted that I “write about the presumption of death statute. I think it is total BS.” As I have always said, I’m not here to make the rules, just to understand them and help explain them to you.

    The statute defining “injury” reads in relevant part: “an untoward event or events shall not be presumed to have arisen out of and in the course of employment, except in the case of an employee found dead in the course of employment.” Miss. Code Ann. § 71-3-3(b).

    The general rule is that when an employee is found dead at a place where his/her duties require him/her to be or where (s)he might properly be in the performance of his/her duties during work hours, in the absence of evidence that (s)he was not engaged in his/her employer’s business, there is a presumption the accident rose out of and in the course and scope of his/her employment. In laymen’s terms, if someone is found dead at work during the hours they would typically have been performing their job duties, without any direct evidence to the contrary, it is simply assumed that the decedent died within the course and scope of their employment.

    However, it does not end there. The presumption simply shifts the burden of production to the employer and carrier. This means that the employer/carrier will need to present credible evidence supporting the fact that the decedent died for reasons totally unrelated to his/her work activities.

    This really becomes interesting in a circumstance where it is unclear whether or not the decedent was where his/her duties required him/her to be or where (s)he might properly be in the performance of duties during work hours. In those situations, the regular rules of compensability are applied to determine whether the presumption applies. While that can sound confusing, it simply means that evidence is to be provided to show, depending upon where the decedent is found dead, if (s)he would have been considered to be within the course and scope of his/her employment.

    An even more complicated scenario is where an employee began to experience the onset of symptoms at work, but ultimately died after leaving the premises. There are several cases on point, such as a heart attack/MVA/collapse/seizure/stroke or other “untoward event” within the course and scope of employment, when the decedent was officially pronounced dead at a hospital afterwards. A scenario such as this has also been found compensable.

    Most of my audience consists of employers/carriers, so I’m sure you are waiting for the silver lining. While it is a difficult presumption to overcome, credible evidence can be presented by the employer and carrier to rebut the presumption. Credible evidence is described “as distinguished from guesswork, speculation and conjecture.” Road Maintenance Supply, Inc. V. Dep. Of Maxwell, 493 So. 2d 318, 322 (Miss. 1986).

    What serves as credible evidence? Medical testimony is required to rebut the presumption as to the cause of death and the connection between the death and employment. If the employer and carrier cannot definitively state to cause of death, then the presumption will not be overcome. This clearly means the first step in order to rebut the presumption would be to obtain definitive medical opinions to detail the exact cause of death.

    Once a determination has been made as to the cause of death, credible medical expert opinions are needed to prove that the death, even if a heart attack, was not caused at least in part by the claimant’s work activities. This cannot take into consideration hypothetical scenarios. The expert opinion must be based upon knowledge of the specific acts of the decedent’s employment on the date of death or date of the symptoms. Further, the medical testimony must be that the work activities of the decedent on the date of death did not contribute to his death.

    This is clearly a high burden of production placed upon the employer and carrier in such an instance. Not only do you need an expert opinion which gives the cause of death with specificity, but you are also required to produce expert testimony to provide credible evidence that, not only was the death not caused by claimant’s work activities, but that death was not caused by the specific work activities of that particular day. In order to overcome the presumption of a causal connection, not only must the cause of death be explained, but the work activities of the decedent must also be fully developed to show such activities do not cause or contribute to the untoward event.

    From my vantage point, it certainly seems as though the presumption itself is fair. Finding the employee dead at a time and place where (s)he would have been performing the usual acts of their employment should give rise to the fact that it very well could be work related. It is only a presumption though. The employer and carrier are afforded the opportunity to rebut the presumption with credible evidence. From a practical standpoint, it seems as though the burden of production is so high that oftentimes the employer and carrier are left with a compensable claim due to the fact that they cannot specifically account for exactly what the decedent would have been doing leading up until the exact moment of death.

    In most situations, the claimant is simply found dead. While an autopsy can generally prove how a decedent passed, the difficult part of that equation is the relationship between the cause of death and the work activities. You are essentially having to prove a negative from the defense standpoint, which is extremely difficult , if not impossible to do. There are most certainly cases which are ultimately found to be compensable simply because the defense to the presumption has such a high burden of production from the standpoint of the employer and carrier.

    Is the “found dead presumption” indeed BS? Embrace the debate. Or if you encounter a situation where this applies, immediately contact myself, or your attorney, to discuss the proper and necessary activities defend your case.