A Heart Presumption Not Rebutted

Sunday, November 20, 2005 | 0

The Court of Appeal has reversed a WCAB determination that a correctional officer's death from a bronchial infection which had spread to the heart was not work related. The Court specifically determined that the WCAB erred as a matter of law in finding the employer had sufficiently rebutted the presumption under Labor Code section 3212.2 that any heart trouble was work related.

The case is Jackson v WCAB. The procedural history of this case is also interesting. This decision initially issued as an unpublished decision on 8/31/05. A request for publication was made and the court thereafter, on its own motion, set aside the decision. The court's website does not contain any information about additional briefing or arguments. On October 27, 2005, the court issued what appears to be an identical version of its decision. (I have compared the two decisions and they are clearly very similar, but I do not have the patience to go through them word for word to see if they are identical. The holding and rational are clearly the same in the two decisions.)

The employer obtained a report that held that applicant's death arose from primary lung disease that spread to the heart. The opinion indicated that there was no relation between applicant's employment and his death. The report:

"argued that the viral process 'can be acquired in the course of a variety of daily activities in which there is contact with the public. So, there is nothing specific about the patient's occupation that would lead us to conclude that his viral infection and the secondary myocarditis was occupationally related.' The doctor continued, 'absent the application of the heart problem presumption, we would consider this a nonoccupational medical problem.'"

The Applicant's medical report provided no actual analysis of the medical problem and simply relied on the presumption to establish causation. The WCJ found that the defendant had not overcome the presumption of causation and awarded benefits. The WCAB granted for further study and ultimately issued an opinion and decision reversing the trial judge and finding that the defendant's medical report adequately rebutted the presumption. The Court of Appeals reversed the WCAB's decision and reviewed the impact of the presumption and its history. The court noted that because the presumption is rebutable, injured workers were not guaranteed a finding of industrial injury.

In this case the court found that the defense report did not adequately rebut the presumption. The defect with the report appears to be that it concluded that there was nothing specific about applicant's employment that placed him at any greater risk for this cause of death than the general public. The court noted:

"Simply pointing out that there is nothing specific about his job that caused his heart attack or put him at a greater risk for this condition does not satisfy the Department of Correction's burden to prove that a contemporaneous nonwork-related event was the sole cause of the heart attack in question. Moreover, this 'evidence' does not demonstrate the heart trouble here was attributable to a pre-existing nonindustrial disease. Stated another way, there was no evidence in the record that Davis's respiratory illness was not related to his job as a correctional officer. The conclusion that there is 'no medical basis that would justify linking this patient's acute medical problems to his occupation' further failed to establish that any nonwork-related event was the sole cause of this heart attack or that this heart disease was the result of a pre-existing disease unrelated to his job."

The court commented on the case of Geoghegan v. Retirement Board (1990) 222 Cal.App.3d 1525, where the employer presented affirmative evidence of the actual cause. Simply negating the industrial causation, without providing additional explanation at to what did cause the heart disease to result in death is not sufficient.

This case presents another example of the extreme difficulty in rebutting the presumption of injury for public safety officers. If only the courts would apply the same strict standard to another rebutable presumption that exists in the labor code, the presumption in favor of the medical treatment guidelines in ACOEM. This appears to be a rebutable presumption that, at least in the current trends, can be overcome with a whim and a prayer at the WCAB. Perhaps the Courts of Appeal will take a more stringent look at this presumption when the opportunity presents itself.

By attorney Richard "Jake" Jacobsmeyer, managing partner of the Concorde office of Adelson, Testan, Brundo & Popolardo. Jake can be reached at richardjacobsmeyer@atblaw.net.

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