California: Emergency Service Personnel’s Heart Trouble Presumption

In most workers’ compensation cases, in order to establish an entitlement to benefits, it is the applicant’s initial burden of proof to establish that an injury or disease process arose out of employment and occurred in the course of employment. This burden is lessened somewhat for emergency service personnel, such as firefighters and police officers. Recent Noteworthy Panel Decisions (NPDs) and writ denied panel decisions have provided great insight and guidance into these types of cases, especially when dealing with the rather amorphous concept of “heart trouble.” A few of these cases have been summarized below.

I. Purpose of Emergency Service Personnel Presumptions

It was the intent of the legislature in enacting this series of emergency service personnel presumptions of industrial causation to provide additional workers’ compensation benefits to certain employees, such as police officers and firefighters, who provide “vital and hazardous services” to the public. (See City of Long Beach v. Workers’ Comp. Appeals Bd. (Garcia) (2005) 126 Cal. App. 4th 298, 70 Cal. Comp. Cases 109.) Generally, these categories include various types of emergency service personnel and are described more fully in Labor Code §§ 3212, 3212.1, 3212.2, 3212.3, 3212.4, 3212.5, 3212.6, 3212.7, 3212.8, 3212.85, 3212.9, 3212.10, 3212.11, 3212.12, 3213, and 3213.2.

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II. Employees Subject to a Presumption Are Exempt from Labor Code § 4663

In addition, these classes of employees are also exempt from the usual apportionment rules that might reduce their level of permanent disability. Labor Code § 4663 mandates that evaluating physicians determine the percentage of an injured worker’s disability caused as a direct result of the industrial injury, and the percentage of disability caused by “other factors,” in order to subtract the percentage of “other factors” from the total amount of permanent disability awarded. However the last subsection, Labor Code § 4663(e), provides “Subdivisions (a), (b), and (c) do not apply to injuries or illnesses covered under the emergency service personnel Labor Code §§ 3212, 3212.1, 3212.2, 3212.3, 3212.4, 3212.5, 3212.6, 3212.7, 3212.8, 3212.85, 3212.9, 3212.10, 3212.11, 3212.12, 3213, and 3213.2.” This clause in Labor Code § 4663(e) exempts the emergency service personnel from having their permanent disability awards reduced by apportionment to “other factors.”

Most of these sections (Labor Code §§ 3212-3213.2) also include an “anti-attribution” clause to clarify that the applicable injury or disease “shall in no case be attributed to any disease existing prior to that development or manifestation,” thereby making it clear that apportionment does not apply.

III. Defendant Bears the Initial Burden of Proof, Rather than Applicant

In most workers’ compensation cases, it is the burden of applicant to initially prove that his or her injury or disease is industrial. However, in cases dealing with emergency service personnel, it is the burden of defendant to prove that the injury or disease is not industrial. And if the emergency service personnel causation presumption is determined to exist, most likely the permanent disability award will not be reduced by apportionment to “other factors” per Labor Code § 4663.

This concept was explored in the recent NPD of Sanchez v. State of California, Department of Corrections and Rehabilitation, 2015 Cal. Wrk. Comp. P.D. LEXIS 482. Applicant, Willie Sanchez, was a youth counselor for CDCR entitled to the presumption of causation under Labor Code § 3212.2 since he was diagnosed with “heart trouble.” The AME in this case, Dr. Markovitz, diagnosed applicant with “left atrial enlargement (LAE)” of the heart. The WCJ explained:

As a physical abnormality of the heart, it is clear that LAE constitutes “heart trouble” which is presumed industrial pursuant to section 3212.2. Because of that presumption, applicant does not have the burden to prove that it was industrially caused. Instead, defendant has the burden to prove that it was not industrially caused. As pointed out by defendant, Dr. Markovitz simply could not say one way or the other within reasonable medical probability. In the absence of any other medical evidence, defendant did not meet its burden of proof on this issue, and applicant's LAE was found to be compensable. (Emphasis added.)

Since applicant’s “left atrial enlargement (LAE)” of the heart was deemed to be “heart trouble” for purposes of Labor Code § 3212.2, applicant heart disease was presumed compensable.

IV. Application of the Presumptions and Anti-Attribution Clauses

In the case of County of Riverside v. Workers’ Comp. Appeals Bd. (Simmons) (2016) 81 Cal. Comp. Cases 1031 (writ den.), the WCAB discussed the purpose behind the presumption statutes and how the presumptions are to be applied in “heart trouble” cases.

The Simmons case dealt with a deputy sheriff, Officer Simmons, who was diagnosed with hypertension in 2002 prior to his employment with the County of Riverside. Two years later, in 2004, he began his employment with the County of Riverside. In 2015, eleven years after he had began his employment with the County of Riverside, Officer Simmons was diagnosed with cardiomyopathy.

Officer Simmons argued that since his cardiomyopathy was diagnosed in 2015, he was entitled to the presumption of industrial causation for “heart trouble” under Labor Code § 3212.5, since his heart trouble manifested during his employment with the County, as is required by Labor Code § 3212.5.

Defendant argued that Officer Simmons was not entitled to the presumption of industrial causation under Labor Code § 3212.5, since his “heart trouble” began and manifested itself prior to his employment since he was diagnosed with hypertension in 2002.

The evaluating physician explained that defendant’s argument was flawed in that hypertension and cardiomyopathy are two distinct and separate types of heart conditions. These two heart conditions must be evaluated separately. As such, the Officer’s cardiomyopathy did not manifest itself until well into his employment with the County. The WCAB relied on the evaluating physician’s determination as to the characterization of applicant’s cardiomyopathy to be “heart trouble” and determined applicant to be entitled to the Labor Code § 3212.5 presumption.

V. What Constitutes “Heart Trouble?”

In the recent NPD of Thompson v. State of California, 2017 Cal. Wrk. Comp. P.D. LEXIS 206, the WCAB dealt with the issue of when “hypertension” would constitute “heart trouble” for purposes of the presumption statutes.

Donald Thompson was a teacher for the CDCR with custodial duties when he was diagnosed with “hypertension.” This condition manifested itself during the term of his employment with the CDCR. Therefore, he was entitled to the occupational causation presumption under Labor Code § 3212.2, if, in fact, the adverse issues with his heart, diagnosed as “hypertension” qualified as “heart trouble.”

The WCAB explained that not all cases of “hypertension” would qualify as “heart trouble” and set out to define the concept by taking a look at legislative intent:

The intent of the authors of the amendment adding the phrase “heart trouble” to section 3212 was no doubt to have the meaning of that phrase encompass any affliction to, or additional exertion of, the heart caused directly by that organ or the system to which it belongs, or to it through interaction with other afflicted areas of the body, which, though not envisioned in 1939, might be produced by the stress and strain of the particular jobs covered by the section.

Next, the WCAB turned to the case of Muznik v. Workers’ Comp. Appeals Bd. (1975) 51 Cal. App. 3d 622, 40 Cal Comp Cases 578, for guidance on this issue. In the Muznik case, the applicant was a firefighter diagnosed with hypertension. He was not accorded the presumption, as the WCAB found his condition was not deemed to be “heart trouble.” However, applicant filed an appeal with the Second District Court of Appeal (DCA), which adopted a more expansive meaning for “heart trouble” to include hypertension. The 2nd DCA reversed the WCAB in Muznik noting that, “in applying the term ‘heart trouble,’ it is permissible to determine whether the interaction of this malady with the heart has proven ‘troublesome’ to that organ or has required the heart to engage in disabling exertion or labor.”

Since the facts in the Muznik case were almost identical to the facts in the Thompson case, the WCAB held that Willie Thompson should also be entitled to the “heart trouble” presumption provided in Labor Code § 3212.2.

See also the NPD of Schultz v. City of Los Angeles, 2016 Cal. Wrk. Comp. P.D. LEXIS 105, where a police officer’s “mitral valve prolapse” constituted “heart trouble” for purposes of the Labor Code § 3212 presumption. The WCAB cited the case of Parish v. County of Ventura (1989) 210 Cal. App. 3d 92, 54 Cal. Comp. Cases 155 in support of their decision and explained:

…In that case the Court of Appeal annulled the Appeals Board's reversal of the WCJ's finding of compensability in accordance with LC § 3212 as the officer's mitral valve prolapse developed or manifested while applicant was a police officer. Here, applicant experienced heart trouble and sought medical attention during her employment and after years of employment as a police officer. The Parish court stated “heart trouble as used in the compensation law has a rather expansive meaning” and encompasses “any affliction to, or additional exertion of, the heart caused directly by the heart or cardiovascular system or to the heart or cardiovascular system through interaction with the other afflicted areas of the body.”

VI. Employment Period of Industrial Exposure Need Not Be With Same Employer

In the NPD of Seitz v. City of Oxnard, 2017 Cal. Wrk. Comp. P.D. LEXIS 178, James Seitz was diagnosed with “heart trouble” and worked as a police officer for the City of Oxnard from 7/9/84 to 7/9/2010 and for the County of Ventura from 6/13/2010 to 10/31/2013. Defendant claimed the “heart trouble” presumption did not apply because the required five-year industrial exposure period of 10/13/2008 to 10/13/2013 mandated by Labor Code § 3212.2 was with two different employers and not with the same employer.

However, the WCAB disagreed with defendant’s position, and in support, the WCAB cited the case of Marinwood Community Services v. Workers’ Comp. Appeals Bd. (Romo) (2017) 10 Cal. App. 5th 231, 82 Cal. Comp. Cases 317. The WCAB held the presumption applied, since it was the aggregate employment that mattered, and the presumption would not be barred due to the fact that the exposure period included consecutive qualifying employments with different employers.

VII. Conclusion

It is always important to review the requirements of each party’s burden of proof, prior to commencing discovery in any workers’ compensation case to ensure that no relevant piece of evidence slips through the cracks.

In addition, when dealing with emergency service personnel, it is critical to review all of the presumption statutes with the following questions in mind:

1. Does the employee’s job qualify under one of the statutes?

2. Does the employee’s injury or disease qualify under one of the statutes?

3. Did the relevant injury or disease manifest itself during the term of employment?

Whether your client is a member of a protected class of employees or is the employer of such employees, knowing all the particular “glitches” of these statutes is of prime importance in representing your client to the best of your ability.

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