Last time, the scene was set for the story of Keven and Kenny, twin brothers, each born with a heart defect that resulted in their respective strokes.  As Kenny the workers’ compensation defense attorney found himself with a take-nothing order because the Agreed Medical Evaluator in his case found that the stroke, and all resulting permanent disability, was caused entirely by Kenny’s congenital heart condition, Keven the firefighter’s attorney cited Labor Code section 3212, for the proposition that a firefighter’s heart trouble can in no case be attributed to any disease existing prior to that development or manifestation.

In other words, if Keven was born with a time-bomb in his heart, and it exploded, right on schedule, the day after he started a job as a firefighter, section 3212 would kick right in!

So, does Keven’s attorney have all his bases covered?

Well, first, he would have to prove that Keven is a firefighter – something he could establish without much difficulty (showing up at the Board with a fire axe IS not recommended, even if you believe you’ve got “an axe to grind.”)  Then, he would have to prove that Keven’s injury could be considered “heart trouble.”  This should be no problem, considering the fact that case-law has established that there are very few non-orthopedic injuries that might be considered not heart trouble.  (Muznik v. Workers’ Comp. Appeals Bd. (1975).)

But what about that pesky requirement of “in the service of the office…” as required by Labor Code section 3212?  If the firefighter is sitting in his and his brother’s gazebo, drinking coffee on a beautiful Sunday morning and indulging in that antique of an information-delivery device that people so often read, is he really in the service of the fire department?

For example, the Court of Appeal in Geoghegan v. Retirement Board (1990) upheld a retirement board’s denial of benefits for a firefighter who sustained a heart attack while skiing.

Now, before the applicants’ attorneys out there start mumbling something about a ski-lodge burning and a San Francisco firefighter being called in to ski down the slopes and shovel ice onto the flames, your humble blogger assures you, this was a vacation.  The treating physician found that the heart attack was caused by the altitude and Mr. Goeghegan had recently passed the fire department’s physical exams with skiing flying colors.

The Board of Retirement had rejected Goeghegan’s application for retirement benefits, and he appealed.  There, the Court of Appeal rejected Goeghegan’s argument that Labor Code section 3212 applied and that he should be, at that very moment, counting his money instead of appealing his case, because the trial court had found that “the conclusion is inescapable that plaintiff’s disability was due to the myocardial infarction caused by the cold and altitude encountered while skiing.”

Previous decisions, as cited by the Goeghegan Court, included Turner v. Workmen’s Comp. App. Bd. (1968) and Bussa v. Workmen’s Comp. App. Bd. (1968).  In Turner, a police officer’s heart attack sustained while on duty after a day off spent abalone fishing was found non-industrial, and the presumption of Labor Code section 3212.5 was rebutted.  In Bussa, a firefighter’s exertions on a second job were used to rebut the presumption of industrial causation for his heart attack.

Well, Keven’s attorney could easily fire back that those three cases can be distinguished because they don’t touch on the anti-attribution clause (“[t]he … heart trouble … so developing or manifesting itself … shall in no case be attributed to any disease existing prior to that development or manifestation.”)  And, as the Agreed Medical Evaluator in Keven’s case had found that 100% of the disability was caused by a congenital heart defect, that leaves (let me get my calculator here…) 0% available for causes NOT “attributed to any disease existing prior to that development or manifestation.”

Geoghegan was already a firefighter when he sustained his heart attack; Turner was already a police officer when he sustained his heart attack; and Bussa was already a firefighter when he had his heart attack.  On the other hand, each of these cases showed an injury attributed to something other than a condition in existence prior to the start of the applicant’s career with the fire or police department.

Keven, on the other hand, was not exerting himself at all – he was having coffee with his twin brother and their respective families over a relaxing Sunday breakfast.

But doesn’t something seem strange about sticking the fire department with the bill for a condition which existed at birth?  After all, we’re talking about medical care and temporary disability and permanent disability and maybe even a pension.  That’s not to mention the litigation costs.  The city in which Keven is a firefighter could be deprived of a firetruck or several firefighters’ salaries if it is liable for Keven’s stroke.

So, dear readers, what happens? Come back on Friday and, not only will you be treated to the true story, but you’ll also get some crackpot arguments from your humble blogger with which to try your luck, should you ever find yourself in the fire department’s most unfortunate position.