WCDefenseCA

Labor Code section 3212.2 creates a presumption of industrial causation for corrections officers who, sustaining an injury to the heart (or “heart trouble”), have the injuries develop or manifest themselves during employment, or, in some cases, up to 5 years later.

But, practically speaking, is this presumption ever rebutted?  Is it possible an evaluating physician will conclude the heart trouble developed or manifested itself before applicant began working for the Department of Corrections?  After all, we’ve seen an industrial award to a sheriff’s deputy under section 3212.5 for a congenital heart defect.

The answer, apparently, is yes.  I respectfully direct your attention to the writ denied case of Michael Yubeta v. Workers’ Compensation Appeals Board. [Forgive your humble author his “you-betcha” puns.  Just give a polite smile and keep reading.]

Applicant corrections officer (the penal kind, not grammar), filed a claim for heart disease after thirteen years of employment by the Department of Corrections and Rehabilitation.  The parties agreed to a medical evaluator who, after evaluating applicant, diagnosed him with cardiovascular disease and coronary heart disease.

However, following a thorough review of the records (possibly guided by a well drafted letter), the AME found the cardiovascular disease to have manifested itself before applicant began working for the DOC.

Therefore, reasoned the AME, the public safety officer presumption of section 3212.2 does not apply, and 85% of the impairment should be apportioned to non-industrial causes.  The other impairments, including the psyche claim, went as these things normally do.

Did applicant petition for reconsideration?  Yubet[ch]a!

In his report and recommendation that applicant’s petition be denied, the Workers’ Compensation Judge argued that the designation of an agreed medical evaluator reflects a recognition from the parties of the evaluator’s competence and impartiality.

Given this, the WCJ’s report continued, “[t]he question of when a disease process develops and manifests itself was a question of medical fact within the expertise of” the AME.  As the AME found, the hypertension “develope[d] and manifest[ed] itself” before applicant became a correctional officer employed by the State.

The Workers’ Compensation Appeals Board denied applicant’s petition for reconsideration, adopting and incorporating the WCJ’s report.  The Court of Appeal denied applicant’s writ of review.

A recent Workers’ Compensation Appeals Board opinion, Karges v. Siskiyou County Sheriff, touched on the issue of the law enforcement officer’s presumption regarding heart disease.

The applicant, who worked as a deputy sheriff for over seven years, was diagnosed with atrial fibrillation following a life insurance examination.

Labor Code § 3212.5 allows for law enforcement officers’ heart trouble or pneumonia to be regarded as an industrial injury.  The section provides a presumption of industrial causation, so long as the employee worked for more than five years before the presumption arises.

At trial, the Workers’ Compensation Judge found no injury to the circulatory system, but instead found an injury to the heart.  Defendant petitioned for reconsideration of this finding, arguing the heart disease was congenital.

The WCJ in this case found the issue to turn on the definition of the word “disease,” as found in § 3212.5 (“[s]uch heart trouble … shall in no case be attributed to any disease existing prior to … manifestation.”  Ultimately, the WCJ reasoned that the Labor Code intended to cover, as a “disease,” those conditions with which the applicant was born.

Naturally, your humble author disagrees with this reasoning – Labor Code § 4663 clearly states that “[a]pportionment of permanent disability shall be based on causation.”  In this case, it would appear that the two code sections, to some extent, conflict.  The natural course of action is to interpret them in such a way as to NOT conflict.  This would necessitate interpreting “disease” as to not including any congenital conditions.

Furthermore, Labor Code § 3212.5 was last amended in 1976, whereas Labor Code § 4663 was last amended in 2006.  If, as the WCJ states, the judges are required to apply the “usual rules of statutory interpretation,” then the more recent action of the legislature is the best expression of legislative intent.  Therefore, § 4663, in the event of any conflict, should supersede § 3212.5.

It does not appear that this case is to be appealed, but hopefully the next time this issue comes up the answer will be more favorable to the defense community.