WCDefenseCA

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

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.

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?

My dear readers may recall a three-part post on the presumptions afforded firefighters and police officers in questions of medical causation.  Specifically, Labor Code section 3212 calls for heart trouble which manifests during employment to be presumed compensable.  Similarly, Labor Code section 3212.1 applies to cancer.  Sit back, dear readers, and hear the tale of how this presumption was defeated in a recent writ denied case (for the more curious readers, the panel case is that of David Pesko v. City of Westminster; please e-mail your humble blogger if you would care for a copy of the panel opinion.)

Officer Pesko of the Westminster Police Department filed an application claiming injury in the form of throat cancer.  The diagnosis was made by applicant’s treating physician, and he eventually underwent surgery and returned to light duty.  (Sources have reported that in response to this claim, Westminster has equipped all patrol cars with sirens and speakers, abandoning the prior procedure of having officers yell at the driver to pull over.)

The parties agreed to go to an AME to resolve all disputes, who found that the throat cancer “developed strictly as a consequence of non-work related HPV infection” which occurred prior to his employment with Westminster PD.

The injury was denied and the matter proceeded to trial, where the workers’ compensation Judge found that the AME’s opinions were substantial evidence, even though the Primary Treating Physician disagreed (sometimes, the AME’s opinions are controlling, even in the face of a PTP’s disagreement).

In denying applicant’s petition for reconsideration, the WCAB recognized that “[p]ursuant to Labor Code section 3212.1, a peace officer who is exposed to a known carcinogen and develops or manifests cancer while employed is entitled to the presumption that the cancer is industrially caused.”

However, citing City of Long Beach v. Workers’ Compensation Appeals Board (Garcia), the panel reasoned that the AME showed that “the odds that applicant’s cancer is industrial ‘are vanishingly small’,” which satisfied the Garcia standard that “an employer demonstrates the absence of a reasonable link if it shows no connection exists between the carcinogenic exposure, or that any such possible connection is so unlikely as to be absurd or illogical.”

However, one of the commissioners dissented, and would have granted reconsideration.  The dissenting opinion stated that the only way to overcome the presumption found in Labor Code section 3212.1 was to show that there was no link between the applicant’s exposure to carcinogens and his cancer – it doesn’t matter which is the more likely cause of the cancer, the non-industrial exposure prior to employment or the industrial exposure during employment; all that matters is the fact that there was an exposure, and the presumption of 3212.1 should kick in.

This blog has witnesses the cookie crumble both ways – a deputy sheriff’s congenital heart disease has been found industrial, while a corrections officer’s heart disease was found to have manifested prior to his employment.

The problem with expanding the application of the “presumption” is that you have cases such as these: a 99% certainty that the injury is caused by non-industrial infection, found by an Agreed Medical Evaluator, and one out of three commissioners would find the defendant-employer liable.

Several cities have had to cut their law enforcement and fire department budgets to accommodate potential liability, as can be seen in this latest police-chase footage from the frozen North of Eureka: