Welcome back, dear readers!  The sun is shining, Friday is upon us, and the little hand striking 8 on your clock signals the conclusion of A Tale of Two Broken Hearts.

Your humble blogger directs you to the recent case of Kevin Kennedy v. City of Oakland.  Mr. Kennedy, a firefighter, had sustained a stroke while he was off work and filed a workers’ compensation claim against the City of Oakland, reasonably arguing that the stroke was “heart trouble” as contemplated by Labor Code section 3212.  After an Agreed Medical Evaluator found that Mr. Kennedy’s stroke was entirely caused by a congenital heart anomaly, and had nothing to do at all with any work-related activities or trauma, the workers’ compensation judge found that the City of Oakland was not liable for the injury.

Mr. Kennedy’s attorney made a fairly logical argument:  Labor Code section 3212 prohibits the attribution of heart trouble to “any disease existing prior to that development or manifestation” of heart trouble.  Additionally, the same Labor Code section requires heart trouble in firefighters to be presumed industrial, although this presumption may be rebutted by other evidence.  Here, there is no evidence available with which to rebut this presumption, because the AME found that 100% of the causation should be attributed to the congenital heart condition.

The workers’ compensation Judge, however, found that Mr. Kennedy could not recover – based on the opinions of the AME, the stroke had absolutely nothing to do with Mr. Kennedy’s employment.

Applicant petitioned for reconsideration, and the Workers’ Compensation Appeals Board granted reconsideration, reasoning that Mr. Kennedy’s patent foramen ovule was a condition existing prior to the development or manifestation of the stroke, and that Labor Code section 3212 necessitated a finding of compensability.  The Court of Appeal denied defendant’s petition for a writ of review.

In issuing its opinion, the WCAB was consistent, echoing a similar decision in the matter of Karges v. Siskiyou County Sheriff, finding a deputy sheriff’s congenital heart condition compensable under Labor Code section 3212.5.

So… what’s to be done?  Common sense and a basic inclination for fairness militate against this outcome.  We’re not talking about a weak heart being aggravated by work conditions, but rather a firefighter at peak physical fitness succumbing to a condition with which he was born and an illness in which his work played no part.  It’s entirely possible that if Mr. Kennedy had spent his life behind a desk, much like his imaginary twin brother Kenny, his heart would have been strained by office junk food and a sedentary lifestyle, much like your humble blogger’s.

As promised, here are a few crackpot arguments to be used only by the most desperate in such cases.  Your humble blogger doesn’t know if these will work, but if they are the only alternative to writing a big check, perhaps they are worth exploring.

1. As with the Karges decision, the argument should be raised that Labor Code section 4663 is the more recent law, and therefore reflects the more current legislative intent.  In litigated matters, judicial authority should be used to further this Legislative intent and not find impairment caused entirely by non-industrial factors to be compensable.
2. In the writ denied case of Michael Yubeta v. Workers’ Compensation Appeals Board, a corrections officer’s claim for heart disease was ruled non-compensable when the Agreed Medical Evaluator found cardiovascular disease manifested prior to the start of his tenure with the Department of Corrections.  In the Kennedy, matter, the defense might argue that the patent foramen ovule is the “heart trouble” contemplated by section 3212, and it manifested itself at birth, before the term of service with the fire department.  Mr. Kennedy’s stroke, being directly and exclusively caused by this manifestation, should not be presumed compensable.

   After all, the poor guy had a hole in his heart – not in the sense that he couldn’t love or open up to other people, but the wall to his heart had an actual hole.  Studies had shown that this practically guaranteed that he would sustain a stroke at some point in his life.  (Understandably, this one is a stretch).

3. Webster’s dictionary defines “attribute” as “to regard as resulting from a specified cause.”  However, as the Labor Code does not use the words “apportionment” and “attributed” interchangeably, we can only suppose that they mean two different things.  So, while section 3212 prohibits us from attributing heart trouble for purposes of AOE/COE, perhaps we are still permitted to “apportion” the heart trouble to non-industrial causes.  If such is the case, the Kennedy matter should have found the stroke compensable, and yet apportioned 100% to non-industrial causes.

In other words, Mr. Kennedy should get the medical treat