Handling and Defending the Heart/Lung Presumption. Ralph L.Whitt, Jr. Whitt & Del Bueno 4461 Cox Road, Suite 100 Glen Allen, VA (804)

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1 Handling and Defending the Heart/Lung Presumption Ralph L.Whitt, Jr. Whitt & Del Bueno 4461 Cox Road, Suite 100 Glen Allen, VA (804)

2 Handling and Defending The Heart/Lung Presumption Why be concerned about defending presumption claims? $$$$$$ The Commission estimates that on heart and lung presumption claims (excluding cancer) from 2001 through 2008, the payout in compensation has averaged around $3 million in the aggregate each year

3 From 2001 to 2008, the Commission estimates payouts for medical expenses each year on all presumption claims (excluding cancer) has risen from approximately $750,000 to almost $5 million Predict around $8 million in total payouts each year on just heart/lung presumption claims, excluding cancer claims Cancer claims comprise around 5-10% of presumption claims, so impact smaller

4 Handling and Defending The Heart/Lung Presumption: Overview Enacted in 1976 to solve the problem public safety employees had proving their heart or lung diseases were caused by their employment given limitations in medical science at the time Covers primarily law enforcement and firefighters, including certain volunteer firefighters Also covers Department of Emergency Management hazardous materials officers, sworn members of Dept. of Game and Inland Fisheries, special agents of Dept. of ABC, and various airport authority officers

5 Overview (Continued) Covers heart disease, respiratory disease (firefighters, etc.) and certain cancers (firefighters, etc.) In 2002, added infectious diseases (hepatitis, meningitis, TB and HIV) under separate statute and treated differently few cases litigated Disease must result in either partial or total disability (that is, wage loss or lost time from work) that does not have to exceed the seven-day waiting period Under presumption, it is presumed that a nexus or causal connection exists between certain public safety occupations and covered diseases But the presumption is rebuttable!

6 Overcoming the Presumption Employer/carrier has the burden by preponderance of credible evidence to overcome the presumption Employer must prove (1) the disease was not caused by the employment and (2) the disease resulted from specific non-work-related causes Proving risk factors for the disease not enough; must prove causes For (1) prong, must prove that the employment was not likely a cause or significant contributing factor in disease But do not have to rule out the possibility the employment played a role in the disease

7 Usually prong (2), that is, non-work-related causes, is not a problem to prove Problem usually is getting doctors to exclude the employment as a contributing factor

8 Overcoming the Presumption If cause of disease is unknown, then cannot overcome presumption because can t prove prong (2) Cannot use or rely upon medical opinion that simply disagrees with the presumption statute (for example, opinion that says, I don t believe that job stress ever causes heart disease, will be excluded) This applies to treating physicians as well as IME s

9 Overcoming the Presumption: WHAT TO DO? Investigate with employer the length of employment and job duties Short length of employment (for example, less than one year) may not be enough for physicians to relate disease to employment If less stressful job (for example, working in records), then may get physician to agree not work-related However, most physicians will find some significant stress in almost any job

10 Overcoming the Presumption: WHAT TO DO? Gather all relevant medical records, particularly past medical history If pre-existing disease, then may have defense to work-related cause Discuss causation with treating physicians Send treating physicians questionnaire on causation Consider IME

11 Covered Diseases: Heart Heart disease takes many forms Not every symptom or problem involving or affecting the heart is heart disease For example, a nervous system disorder affecting the blood pressure regulation which, in turn, affects heart rate is not heart disease Chest pain is not heart disease, but angina (chest pain from restricted coronary blood flow) may be

12 Covered Diseases: Heart (Continued) Rule of Thumb: any condition of the heart that affects function to the point where it causes symptoms and/or disability/restrictions can be a candidate for heart disease For example, a right bundle branch block is an electrical disturbance that affects the right side of the heart, but it generally is a benign condition or normal variant without symptoms and thus, should not be considered heart disease

13 Cardiomyopathy Disease of the heart muscle tissue causing a malfunction of the heart Many causes: drugs, alcohol, viruses, pregnancy, hypertension, genetics None of the known causes is occupational Exception: viral cardiomyopathy can be considered to have originated from the employment due to exposure to the public (police)

14 Cardiomyopathy (Continued) Ischemic cardiomyopathy: usually the result of a heart attack and therefore, defend as heart disease Non-ischemic cardiomyopathy: caused by drugs, alcohol, viruses, genetics Hypertrophic cardiomyopathy: almost always caused by genetics Idiopathic cardiomyopathy: no known cause, therefore, cannot overcome the presumption DNA testing has advanced to the point where testing in many cases may reveal the presence of gene defect linked to certain types of cardiomyopathy

15 Cardiomyopathy (Continued) DNA testing can be used by claimant, for example, to prove hypertrophic cardiomyopathy is NOT genetic At present, DNA testing can only test for a limited number of gene mutations linked to cardiomyopathy, so a negative test does not necessarily prove that there is no genetic link, it just means that the applicable genes may not have been tested

16 Cardiomyopathy (Continued) At present, medical science deems hypertrophic cardiomyopathy to be genetic, and the Commission has not yet required the employer to test all of the possible gene mutations to prove it..so far

17 Lung Cancer Analyzed under respiratory disease section of presumption covering firefighters, not the cancer section Most successful defense: claimant smoked and claimant did not work long enough for any occupational exposure to have caused cancer Conservatively, it takes years for any exposure to develop into lung cancer (the latency period )

18 Lung Cancer (Continued) If less than 10 years from date of first occupational exposure to date of diagnosis, then almost universally recognized as insufficient for occupation to have been a cause of cancer regardless of the intensity of exposure If years from date of first occupational exposure to date of diagnosis, then still arguably not enough time elapsed to have caused cancer If over 25 years of occupational exposure, you may have a difficult time excluding the employment as a contributing cause, unless The claimant has an equal or longer period of significant smoking history and is under age 65 Smoking history is a key to defense

19 Lung Cancer (Continued) Key #2: later claimant is employed = better protective equipment = less exposure Discuss causation with treating physicians even if unlikely to be successful You never know when they will exclude the employment and blame smoking for entire lung cancer even if the claimant has worked years as a firefighter For example, $500K claim $40K

20 Cancer Added to presumption in 1994 for volunteer and salaried firefighters Cancers covered under the cancer presumption are leukemia, pancreatic, throat, rectal, prostate, breast and ovarian

21 Cancer (Continued) Before the presumption can be applied, the CLAIMANT must prove he has a covered cancer, causing death or disability, 12 years of continuous service and contact on the job to toxic substances Toxic substances are defined as carcinogens that are known or suspected to cause the cancer in question Not every toxic substance is a carcinogen and not every carcinogen causes the type of cancer involved

22 Cancer (Continued) Cancer claims under the presumption can be successfully defended in many cases Make sure the cancer in question is one covered in the presumption For example, colon cancer is not covered, but rectal cancer is Doctors may inadvertently use terms interchangeably

23 Cancer (Continued) Investigate whether toxic substances likely encountered in firefighting are known or suspected to cause the cancer in question Lists of toxic substances encountered by firefighters are available Discuss diagnosis and causation with treating physicians Look for whether the cancer is primary or metastatic If metastatic cancer, look for whether primary is known (if not known, presumption may not apply)

24 Pre-employment Physical Just do it! If you do not perform a pre-employment physical, then presumption automatically applies no matter what the evidence is Even if the evidence is that the claimant had or likely had, for example, heart disease before his employment Be thorough (medical history, EKG, etc.)

25 Date of Accident under the Presumption For all occupational disease claims, including the presumption, the claimant must prove the date of accident Also known as the date of communication For most occupational disease claims, it is the date the doctor first told the claimant he had the disease and that it was work-related

26 Date of Accident (Continued) In presumption claims, there usually is no such communication The presumption supplies the missing communication that the disease is workrelated Why is this important? The date of accident determines when the claim begins to run

27 Date of Accident (Continued) This has an affect on the statute of limitations and on the date benefits commence What constitutes a date of communication in a presumption claim? It includes the date the claimant first learns that he has the disease AND at the same time or later knows about the presumption applying to his disease.

28 This can include the employer merely telling the claimant who is in ICU that there are workers compensation forms to be filled out and that he may or may not have coverage under the police heart/lung act. Statute of limitations (SOL) runs if a claim is filed more than 2 years after the date of communication/accident or more than 5 years after the last injurious exposure

29 For SOL purposes, you want an early date of communication (i.e. more than 2 years before the date of filing of claim If, on the other hand, the date of communication/accident is later (i.e.- months or years after the date of diagnosis), then compensation and medical benefits would not begin until later, possibly after major medical expenses incurred

30 This could potentially relieve the employer of most, if not all, of the early and expensive medical expenses and some or all compensation liability Remember: sometimes you want an early date of communication/accident to bar claim by SOL and sometimes you want a late date to reduce paying benefits

31 Compensation to Retirees For compensation to be owed in any occupational disease claim, there must be some wage earned by claimant within 52 weeks before the date of communication Wages can be from any source, not just the employer, and in any amount Important when first diagnosis of disease comes after claimant retired AWW, though, is calculated based on earnings during 52 weeks before last injurious exposure with liable employer

32 Myth: presumption claims cannot be defended Presumption claims can be successfully defended and exposure reduced if one knows what to look for Employers/insurers can save $ on claims by involving defense counsel early Even if few or no defenses, claim exposure can be reduced significantly through effective settlement that spreads the risk among WC, health insurance,vrs, Line of Duty, etc.

33 For example, one client had 4 presumption claims ranging from heart disease, lung cancer and throat cancer with total exposure over $800,000 Eventually two claims were withdrawn One claim with possible heart transplant with reserves over $600,000 was settled for $60,000 One claim went to hearing and VWC issued opinion denying claim Defending presumption can save you $

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