WORKERS COMPENSATION SECTION FALL PROGRAM. Presumption Junction, What's your Function

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1 THE STATE BAR OF CALIFORNIA Workers Compensation Section Presents: WORKERS COMPENSATION SECTION FALL PROGRAM Presumption Junction, What's your Function Speaker(s): Hon. Linda Atcherley, San Diego Teresa Dietz, San Diego David Dugan, San Diego The State Bar of California and the Office of Education of The State Bar of California are approved State Bar of California MCLE providers. Points of view or opinions expressed in these pages are those of the speaker(s) and/or author(s). They have not been adopted or endorsed by The State Bar of California s Board of Trustees and do not constitute the official position or policy of The State Bar of California. Nothing contained herein is intended to address any specific legal inquiry, nor is it a substitute for independent legal research to original sources or obtaining separate legal advice regarding specific legal situations The State Bar of California All Rights Reserve

2 STATE BAR CONFERENCE OCTOBER 24, 2015 PRESUMPTIONS LINDA F. ATCHERLEY WORKERS COMPENSATION JUDGE Statutory presumptions affecting burden of proof: For certain classes of injured workers, injury is presumed to arise out of and in the course of employment. The particular code sections being discussed in this panel are: 3212 Hernia/heart/pneumonia for Safety Officers Heart trouble : Department of Corrections/Youth Authority Note that Correctional Officer broadly defined to include clerical staff, engineering, and kitchen staff if their duties require that they supervise inmates Heart Trouble/Pneumonia for CHP Officers Heart Trouble, Hernia and pneumonia for University of CA Fire Dept Heart trouble and pneumonia for Peace Officers Tuberculosis for Peace Officers, Prison Guards, Correctional Officers, and Firefighters Heart trouble, Hernia, pneumonia and tuberculosis for Dept. of Justice MRSA or Blood Borne Infectious Disease for Sheriffs and Fire Departments Injury includes death or ill from Exposure to Biochemical Substances Meningitis for Peace Officers, Probation Officers, District Attorney Investigators and Firefighters Heart Trouble, pneumonia; tuberculosis and meningitis for Peace Officers

3 STATE BAR CONFERENCE OCTOBER 24, 2015 PRESUMPTIONS LINDA F. ATCHERLEY WORKERS COMPENSATION JUDGE Page Skin Cancer for Lifeguards Lyme Disease for specified Peace Officers and Corps Members 3213 Heart Trouble and Pneumonia for University of CA Peace Officer Lower Back Injury (duty belt presumptions) for certain law officers LABOR CODE 4850 LEAVE In addition to the presumption of injury the public employees may be entitled to paid leave of absence under Labor Code These include City police officers; City County or District firefighters; Sheriffs; Officers or Employees of any Sheriff s offices; Inspectors, Investigators, detectives or personnel with comparable titles in any district attorney s office; County Probation Officers, group counselors or juvenile services officers; officers or employees of a probation office; Peace Officers under Section of the Penal Code; Lifeguards employed full-time on a year round basis by a County of the first class or the City of San Diego; Airport law enforcement officers under subdivision (d) of Section of the Penal Code; Harbor or port police officers, wardens or special officers of a harbor or port district or city or county harbor department under Subdivision (a) of Penal Code or subdivision (b) of Section of the Penal Code; Police officers of the Los Angeles Unified School District. However, there are exceptions to these classes and the exceptions found in 4850(c)(1)-(4). This leave is not deemed to constitute family care and medical leave (Govt. Code ) or reduce the time authorized for family care and medical leave (4850(e)). Nor does it apply to the employees of the City and County of San Francisco (4850(f).

4 STATE BAR CONFERENCE OCTOBER 24, 2015 PRESUMPTIONS LINDA F. ATCHERLEY WORKERS COMPENSATION JUDGE Page 3 LABOR CODE 4663(e) (Anti-attribution Clause) Also, if any of the presumptions under Labor Code 3212, , , , , , , , , , , , , , 2313 and applies, then pursuant to Labor Code 4663(e) none of the apportionment required in 4663(a), (b) or (c) applies (i.e. no apportionment).

5 PRESUMPTIONS: CASE LAW REVIEW CALIFORNIA STATE BAR CONFERENCE ON 10/24/2015 Note: The following review is meant as a guide for the practitioner and is by no means inclusive of all the cases on presumptions or types of individuals who are entitled to them. These may serve as a starting point for additional research. Special thanks to Workers Compensation Appeals Board Judge James Gregory of the San Diego Board for his comments and suggestions in furtherance of this topic. -TD DUTY BELT Jeanne Ramirez v Los Angeles Sheriffs Department, psi, administered by York Risk Services Group, 2014 Cal. Wrk. Camp. P.D. LEXIS 362 Deputy Sheriff was awarded 65% permanent disability as a result of a continuous trauma injury from 8/1979 through 7/2006 to her lumbar spine, left hip, right knee and hypertension, without apportionment. Originally, applicant received a Stipulated Award of 53%, then reopened her case for new and further disability. Agreed Medical Evaluator Dr. Lee Wood, M.D. apportioned 60% of applicant s spine disability to pre-existing or non-industrial causes. As a Deputy Sheriff, applicant is a peace officer, employed for at least five years on a regular, full time salary, and has been required to wear a duty belt as a condition of her employment. Duty belt injuries to the lower back are an injury that affords full hospital, surgical, medical treatment, disability indemnity and death benefits as provided under Labor Code section (a). Any disability to a peace officer s low back caused by wearing a duty belt is excluded from apportionment under Labor Code section 4663(e). Even though the AME opined the low back disability could be apportioned to other injuries. The permanent disability arose from a presumption statute that does not contain an anti-attribution clause. Applicant is entitled to the Duty Belt presumption with no apportionment to prior back injuries. City of frvine v WCAB (2013) 2013 Cal. Wrk. Comp. LEXIS 7 (writ den.) Bryan Flicker v County of Butte, psi, 2012 Cal. Wrk. Comp. P.D. LEXIS 281 Applicant is a Correctional Lieutenant who suffered a cumulative trauma injury between 10/1988 through 10/2010 to his low back. At trial, the workers compensation judge applied Labor Code section which provides to members of City or County police and sheriff departments, peace officers employed by the Department of California Highway Patrol or the University of California, a presumption that a low back impairment developing from their work is presumed to arise out of and in the course of employment. On reconsideration, defendant successfully argued that the presumption did not apply in this case. For the first years of his job, the applicant was a correctional officer. He continuously wore a duty belt. After 4/2004, applicant s job title was changed by the legislature from a public officer with peace officer powers to peace officer with the passage of Penal Code section 830.1(c ). In applicant s current job, he testified he wears a duty belt infrequently to court and to funerals. There was insufficient evidence to apply the Duty Belt presumption because the applicant had not been employed for at least five years as a peace officer, and there was no evidence he was required to wear a duty belt as a condition of his employment. TYPES OF CANCER Faust v City of San Diego (2003) 68 Cal. Comp. Cases 1822; 2003 Cal. Wrk. Comp. LEXIS 585 (Appeals Board en banc) COLON CANCER, BURDEN OF PROOF under Labor Code section To make a prima facie showing that the cancer is presumptively compensable, applicant must show that she or he was employed in an included capacity; that there has been exposure to a known carcinogen 1

6 during employment; and that cancer developed or manifested within the statutory time frames. To rebut the presumption, defendant must identify the primary site of the cancer and show that the carcinogen is not reasonably linked to the disabling cancer. (Id., at pp ) Daniel Bigelow v City of Paso Rabies, psi; The 4600 Group, Lien Claimant, 2013 Cal. Wrk. Comp. P.D. LEXIS 532 COLON CANCER, BURDEN OF PROOF, MEDICAL EVIDENCE Police officer was employed for four years when he was diagnosed with colon cancer. He claims the presumption under Labor Code section (ci). Each party must satisfy a two-prong analysis: for applicant, that he was a peace officer entitled to the presumption, and he must demonstrate exposure to a known carcinogen at work; for defendant employer, they must show the primary site for the cancer (here, the colon), and that the carcinogens applicant claims to have been exposed to during work are not reasonably linked to the cancer. Unless so controverted by defendant, the judge is bound to find in accordance with the presumption. The parties utilized the services of Panel Qualified Medical Examiner ( PQME ) Dr. Gerald Levine, M.D.. Dr. Levine concluded that colon cancer has a latency period of years, even though no studies support a specific latency period for colon cancer; and that there has been no carcinogen exposure, such as benzene, linked to colon cancer in the medical literature. On reconsideration, the Appeals Board reasoned that the absence of a study showing a link between certain carcinogens and cancer does not rebut the presumption. Dr. Levine failed to state that applicant s work related exposure was not reasonably linked to his colon cancer. Similarly, the WCAB was not persuaded by Dr. Levine s discussion of latency periods. Therefore, defendant did not rebut the presumption, and it was found that the applicant did sustain colon cancer presumed under Labor Code section The Town of Hillsborough, psi, administered by The Cities Group v WOW, Robert Chinca, 2015 Cal. Wrk. Comp. LEXIS 87 LYMPHOMA Applicant is a Police Officer who manifested a cancerous tumor in 1/2013. Applicant established he had been exposed to known carcinogens as defined by ARC (International Agency for Research on Cancer) during employment with the Town of Hillsborough from 4/1996 through 1/2013 within the meaning of Labor Code section Dr. Levy, an Agreed Medical Evaluator, found that during surgery to remove a lipoma, applicant s surgeon discovered non-hodgkin s large B-cell lymphoma. Further, AME Levy determined the latency period for lymphoma is between three and ten years. Applicant had subclinical manifestations of the disease one or two years before the tumor developed, clearly within his employment period. Employer failed to rebut the presumption by showing there was no reasonable link between exposure to known carcinogens and the development of cancer. Gregory Oyler v County of Sonoma, psi, Northern Claims Management, 2015 Cal. Wrk. Camp. P.D. LEXIS 228 KIDNEY CANCER Employer successfully rebutted Labor Code section cancer presumption by proving the Deputy Sheriffs cancer was not reasonably linked to exposure to carcinogens during employment; and pursuant to the opinion of the Agreed Medical Evaluator, the latency for the development of kidney cancer was calculated at eleven years, six years before applicant began his employment with the County of Sonoma. Applicant worked as a Deputy Sheriff from 2007 until Thus, the cancer developed and/or manifested before he was hired by the County and the presumption did not apply. 2

7 Steven Judd v City of Desert Hot Springs, Corvel Corporations, 2014 Cal. Wrk. Comp. P.D. LEXIS 463 KIDNEY CANCER, DEVELOP OR MANIFEST Applicant worked as a sworn peace officer until 11/ 2004 and his kidney cancer did not manifest until The trial judge found that applicant was 14% permanently partially disabled as a result of an injury sustained during cumulative trauma periods from 11/1997 through 1/1999 and 2/2000 through 11/2004 in the form of kidney cancer that arose out of and occurred in the course of his employment pursuant to Labor Code section On reconsideration, defendant argued applicant did not have an industrial injury and was not entitled to the cancer presumption for peace officers because the cancer manifested or developed seven years after employment. The parties utilized Prakash Jay, M.D. as an Agreed Medical Evaluator who found a latency period of most solid tumors, including kidney cancer, to be ten years or longer. Thus, the presumption applies due to the fact cancer developed during applicant s employment as a peace officer. A medical opinion is needed to ascertain when a cancer develops or begins to develop. Development predates manifestation. If the expert finds that a cancer developed during employment, the applicant is entitled to the presumption. City of Fresno v Workers Comp. Appeals ad. (Case) 78 Cal. Comp. Cases 987 (writ den.) When the latency period causes development to predate applicant s industrial exposure, the presumption is rebutted. Law v Workers Comp. Appeals ad. (2003) 66 Cal. Comp. Cases 497 (writ den.); Sameyah v Los Angeles County Employees Retirement Assn. (2010) Cal. App. 41h gg, If the applicant has not been diagnosed with cancer, but symptoms have begun, the cancer has manifested. City of Los Angeles v Workers Comp. Appeals Sd. (Darling) (2000)70 Cal. Comp. Cases 1147 (writ den.); County of El Dorado v Workers Comp. Appeals Sd. (Klatt) (2000) 65 Cal. Comp. Cases 1437 (writ den.)) Seaveilo v County of San Diego, (2012)77 Cal. Camp. Cases 596; 2012 Cal. Wrk. Comp. LEXIS 72 BASAL CELL CARCINOMA, INSIDIOUS AND/OR PROGRESSIVE Deputy Sheriff was diagnosed with basal cell carcinoma two years after retirement. The cancer was excised from applicant s nose in 07/2009 by a MOHS procedure. Applicant received a stipulated settlement in the amount of 4% permanent disability with a finding of an insidious disease process, the possibility of higher future permanent disability, and a need for future medical care. Defendant sought reconsideration based in part because the basal cell had been identified and removed; it was not an insidious process. The Agreed Medical Evaluator opined it was likely the condition would not recur, and no medical evidence supported that the condition was progressive in nature. Any reservation of jurisdiction by the WCAB was contrary to law. The only issue is whether this skin cancer should be considered an insidious disease process for the purpose of the Workers Compensation Appeals Board (WCAB) reserving jurisdiction beyond five years after the date of injury under Labor Code section The WCAB on reconsideration reversed the trial judge s decision, finding applicant s skin cancer is not a progressive, insidious disease process for which there are no grounds to reserve jurisdiction. The Appeals Board found the medical evidence did not support a finding applicant s condition was a progressive insidious disease process, based on the reasoning of Agreed Medical Evaluator Dr. Daniel Bressler, M.D.. Dr. Bressler opined a recurrence is unlikely, and because the basal cell had been excised, it was not progressive. There had been no recurrence as of Insidious disease process, according to AME Bressler,... describes a disease that can not be diagnosed over a long period of time. It tends to be slowly progressive and can recur late. (Writ denied.) 3

8 Tanya Orepreza Zamora v Santa Clara County Department of Corrections, psi, (2015)80 Cal. Comp. Cases 373; 2014 Cal. Wrk. Comp. P.O. LEXIS 357- (Appeals Bd. Noteworthy Panel Decision) UTERINE CANCER, JOB TITLE At the time of injury on 11/06/2012, applicant demonstrated she was exposed to a known carcinogen while in the service of the employer as provided in Labor Code section (b). Defendant argues at the time of exposure, applicant was not yet a sworn peace officer, which should be sufficient to rebut the presumption. Applicant was doing the job duties of a Deputy Sheriff (occupational group 490), performing custodial duties relating to inmates, but had not officially been sworn in with her colleagues due to being off work from a prior work injury. Applicant was working as a Correctional Officer, classified as a public officer under Penal Code section Penal code section was amended in 9/2010 to include correctional officers working for the employer under the classification of peace officer ; applicant s colleagues had been sworn in under this new designation. In 11/2012, applicant was off work after her diagnosis of uterine cancer. Applicant was sworn in as a Correctional Deputy in July Defendant argued applicant was not a peace officer within the meaning of newly amended Penal Code section because she had not been sworn in as a deputy sheriff; therefore, applicant should be denied the cancer presumption. The trial judge and Appeals Board disagreed, determining the applicant s job title at time of manifestation was not dispositive; she was a peace officer as defined by Penal Code section for purposes of applying the presumption under Labor Code section William Olive v County of Butte, Sheriffs Dept., psi York, 2012 Cal. Wrk. Camp. P.D. LEXIS 376 MYXOID LIPOSARCOMA, PRESUMPTION REBUffED, LATENCY Deputy Sheriff claims to have sustained injury to his left hip and left buttock area due to cancerous tumor that manifested during the continuous trauma period of 11/19/1999 through 12/22/2009. The cancer was diagnosed in 12/2009. Applicant testified he had been exposed to known carcinogens, including lead bullets, gasoline fumes, and chemicals during regional fires, invoking the cancer presumption for law enforcement under Labor Code section The presumption is rebuttable by defendant if it can be shown environmental factors did not cause the cancer. Toxicologist and Panel Qualified Medical Examiner Dr. Thomas Allems, M.D. found the cancer that developed and manifested was not, in the medical literature, associated with the carcinogens applicant was exposed to during his service with the employer. Citing Same yah v Los Angeles County Employees Retirement Association (2010) 75 CCC 1384, defendant argued it was...highly unlikely the cancer was industrially caused because the period between the exposure and the manifestation of the cancer is not within the cancer s latency period. Dr. Allems opined the latency period was over twenty years, and applicant s exposure during employment at the time the cancer was discovered was ten years. Defendant rebutted the presumption by showing the cancer developed earlier than applicant s employment; and, applicant failed to show the latency period could have been shorter than twenty years. 4

9 HEART TROUBLE/HYPERTENSION William E. Garland, Jr. v Workers Compensation Appeals Board, City of Santee (Fire Department), psi, administered by Tristar Risk Management, 73 Cal. Comp. Cases 913; 2008 Cal. Wrk. Comp. LEXIS 169 HEART TROUBLE- At trial, the workers compensation judge (WCJ) denied retired Firefighter Captain s claim for heart trouble based on evidence of premature ventricular contractions and mitral valve prolapse. Applicant filed for reconsideration, citing the WCJ s failure to find the presumption under Labor Code section 3212 applied. The petition for writ of review was denied. The parties utilized cardiologist Dr. Jerrold Glassman as the Panel Qualified Medical Evaluator (POME) who found applicant did not suffer from organic heart disease, and was able to perform all activities without restriction. Nearly all individuals experience intermittent heart palpitations and irregular heartbeats, and in the absence of heart disease, these conditions are benign according to Dr. Glassman. Applicant offered the medical opinion of internist Dr. Prakash Jay, M.D. who found workrelated cardiovascular issues. The Appeals Board found the medical literature and clinical practice did not support Dr. Jay s findings. It was therefore reasonable to accept Dr. Glassman s medical opinion as substantial medical evidence. In this case, heart palpitations and irregular heartbeats were not putting the heart in a troubled condition. Heart trouble was defined in this case as a disorder of the heart, cardiovascular system, or other area of the body that places the heart in a troubled condition. Hart v Workers Comp. Appeals Sd., (1978) 82 Cal.App.3d 619, 624, 147 Cal. Rptr. 384,43 CCC 747. Muznik v Workers Camp. Appeals Board (1975) 51 Cal.App.3d 622, 124 Cal. Rptr. 407,40 CCC 578 HEARTTROUBLE, DEFINITIONS Firefighter retired after 33 years of employment after he was taken off work when he became dizzy and fell while working a fire in a three-story apartment house. Applicant was told he had work related heart trouble, and at trial, the medical evidence was in conflict between the treater Dr. Allen, M.D., an Agreed Medical Evaluator Dr. Morton Kritzer, M.D. and Dr. Reuben Merliss, M.D. hired by applicant. The issues on appeal were the nature and extent of the injury and whether apportionment applied. The medical findings were that applicant suffered from significant arteriosclerotic coronary heart disease, aggravated by employment and hypertension. During a treadmill exercise, applicant s blood pressure rose rapidly, and his heart showed signs of insufficiency which caused him to skip beats. An electrocardiogram was suspiciously abnormal. Long term hypertension is associated with heart disease, and with functional alterations of the heart. Two doctors opined the hypertension was not caused by work, but was aggravated by it. At trial, the judge ruled 50% of the cause of the injury was due to pre-existing conditions, which rated after apportionment at 30.25% permanent disability. The trial court judge did not find heart trouble, thus no presumption applied. To be eligible for the presumption under Labor Code section 3212, heart trouble must have developed or manifested during employment. Either developing or manifesting of the injury during service will satisfy Development is defined as the existence of the injury in an asymptomatic stage. Manifestation is defined as the production of definite symptoms. From head note #7. Heart trouble is defined as any injury or disease to that portion of the body which, from an anatomical standpoint, is the heart. Gov. Code, sections , and 55 Qps.CaLAtty.Gen. 24, 26. 5

10 On Writ of Review, the Court of Appeals found heart trouble that develops or manifests during employment is occupational causation that satisfies the presumption under Labor Code section 3212 for firefighters. Legislative intent was to design 3212 to restrict pre-employment heart disease as a factor preventing compensation for in-service heart trouble. State Employees Retirement System v Workmen s Comp. App. Bd., 267 Cal.App.2d 611, 617; 73 CaLRptr Since an amendment to Labor Code section 3212 in 1959 prohibits attribution of the injury to pre-existing disease, and the only evidence the disability became disabling was the event that caused applicant s retirement, apportionment was improper. Applicant is eligible for the full amount of his disability rating without apportionment. About the Author: Teresa Dietz is a member of the dedicated workers compensation team at the Office of County Counsel with the County of San Diego. As a civil trial attorney, Ms. Dietz represented business owners and corporations with their litigation, operations and transactional needs. In 2005, she joined State Compensation Insurance Fund in San Diego where she was instrumental in obtaining a favorable Court of Appeals decision protecting contract and third party beneficiary rights to access negotiated rates for medical treatment from vendor members of preferred provider organizations. In private practice, Ms. Dietz represented school districts, hospitals, and a county while serving as conflict counsel for a local municipality. She has served as chair and co-chair of the Workers Compensation section of the San Diego County Bar for years, is a member of the State Bar Workers Compensation section, has provided seminars, taught para-legal certification courses, judged moot court competitions for local law schools, and served as a judge pro-tem for the Superior Court for 15 years. Ms. Dietz is also a founding member of the Animal Law section of the San Diego County Bar and is involved with German Shepherd dog rescue. 6

11 CA AWC S.D JK THE HONORABLE LINDA F. ATCHERLEY is a judge at the San Diego District Office of the WCAB. From 1987 to Feb Judge Atcherley represented injured workers in workers compensation, personal injury, social security disability, and employment cases. She is a past president of the California Applicant s Attorneys Association. She was named Applicant Attorney of the year in 2008 by the State Bar of California Workers Compensation Section. She is a member of the Executive Committee of the State Bar Workers Compensation Section as of She has been a presenter at numerous workers compensation conventions and seminars and participated in the external user groups on the Permanent Disability Rating Schedule, EAMS, the SDJB and Disability Notices. 10/20/2015 2:30 PM

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