WCDefenseCA

Imagine, if you will, twin boys born on some sunny day some forty-five years ago.  Though neither one of the boys, nor their parents, nor even the delivering doctors knew that both boys were born with a heart condition.  This congenital heart anomaly, a patent foramen ovale, left a small hole open in the walls of each brother’s heart, exposing them to higher risks of stroke.

These twin brothers, let’s call them Keven and Kenny, seemed to be joined at the hip.  They enjoyed all the same activities, all the same food, went to the same school, and, when they decided it was time to purchase homes of their own, bought two adjacent houses.  Being as close as they were, they tore down the fence between their properties and right in the middle built a small gazebo where they could enjoy breakfast with their families every weekend morning.

In choosing a profession, Keven wanted a job that would keep him physically fit while allowing him to serve the community and even save the lives of his fellow citizens.  So he became a firefighter.  The job kept him physically fit and allowed him to maintain a clean bill of health… except for that congenital heart anomaly, which no one knew about.

Kenny, on the other hand, decided to pursue the absolute highest calling – the profession which the bravest and noblest aspire to.  He didn’t want to become a physician, or an engineer, or even a scientist.  He decided to become a workers’ compensation defense attorney (not unlike your humble blogger).

Still, the two twin brothers were in every other respect exactly alike, and spent every Sunday morning having breakfast together in that shared gazebo, along with their wives and children.

Then, tragedy struck!  One morning, as Kenny and Keven sat next to each other, enjoying the morning air, each with a newspaper in the left hand and a piece of toast in the right, they suddenly sat straight up, looked into each other’s eyes, and both collapsed to the ground with strokes.

Their families rushed them to seek medical treatment and, fortunately, each of the two brothers recovered.  Before long, they were sitting next to each other in their shared gazebo, when Kenny had an idea.  Why not file workers’ compensation claims for the strokes – surely, the stress of being a firefighter caused Keven’s stroke.  And, if being a firefighter is stressful enough to cause a stroke, then being a workers’ compensation defense attorney is even more so!

As the cases progressed, each of the two brothers agreed to use an Agreed Medical Evaluator, and each AME came to the same conclusion:  the AMEs both found that, in their respective cases, the “stroke … occurred in an individual whose only major risk factor for stroke in terms of this industrial analysis appears to be his congenital heart defect … all of his conditions apportion 100% to non-industrial causation.”

Kenny was crushed – his case was effectively at an end as the workers’ compensation Judge ordered him to take nothing.  After all, the AME had found that there was only one cause for his stroke – a non-industrial condition acquired at birth.  How could any legal system, short of denying a defendant-employer due process, require workers’ compensation payment for something so patently and obviously un-related to any work causes?  Keven’s case, on the other hand, was just warming up.

Keven’s attorney argued that, under Labor Code section 3212, “any heart trouble that develops or manifests itself during a period while [the firefighter] is in the service of the office, staff, department, or unit … shall be presumed to arise out of and in the course of the employment.”

Now, isn’t that presumption rebutted?  After all, as in both the case of Kenny and Keven, the Agreed Medical Evaluators have found that the sole reason for both strokes was the congenital heart condition – exactly 0% of the causation had anything to do with work as a firefighter or as a workers’ compensation defense attorney.

Well, as Kenny feels once again misused and ignored by the system he so gallantly serves, Keven has another line of defense:  “The … heart trouble … so developing or manifesting itself … shall in no case be attributed to any disease existing prior to that development or manifestation.”

How will Keven’s argument fare?