PUBLISHED DECISION: THIRD DISTRICT COURT OF APPEAL UPHOLDS HEART TROUBLE PRESUMPTION
By Michael Amick and Kim Corbin

In a published opinion rejecting a decision by the Workers' Compensation Appeals Board, the Third District Court of Appeal held a physician's report that found no occupational link to a heart attack was not enough to defeat the "heart trouble" presumption afforded to state correctional officers. (Jackson ex rel. Davis v. WCAB, 2005 WL 2093026.) The applicant was represented before the appellate court by Mastagni, Holstedt, Amick, Miller, Johnsen & Uhrhammer.

Correctional officer Barryn Davis, Sr., developed an upper respiratory infection during the Thanksgiving holidays in 1999. The virus caused bronchitis, which spread to his heart, and a viral myocarditis that caused a sudden, fatal heart attack on December 15, 1999. Cynthia Jackson, guardian ad litem for Mr. Davis' son, Barryn Davis, Jr., came to Mastagni, Holstedt, Amick, Miller, Johnsen & Uhrhammer to file an application for survivor benefits on a claim the heart attack arose out of Mr. Davis' employment at the Department of Corrections.

Under Labor Code section 3212.2, heart trouble which a state correctional officer develops while employed is presumed to be work-related. The presumption was adopted by the Legislature to avoid the "battle of the experts" in workers' compensation cases over the relationship between stress, physical exertion, and heart disease. The presumption shifts the burden of proof from the employee to the employer when a heart injury is involved. The Workers' Compensation Appeals Board (WCAB) is bound by the presumption unless the employer presents sufficient evidence to rebut it.

Based on a police report, a coroner's report, and two medical reports regarding Mr. Davis' heart trouble, the WCAB administrative law judge found the injury was industrial. On a petition for reconsideration by the Department of Corrections, however, the WCAB overturned the judge’s decision. The Board based its decision on the report of a defense Qualified Medical Expert, who had concluded there was "nothing specific about the patient’s occupation that would lead us to conclude that his viral infection and the secondary myocarditis was occupationally related."

On appeal, the Third District Court of Appeal held the WCAB erred in finding the Department physician’s conclusion there was "nothing specific" relating Mr. Davis’ heart trouble to his job was sufficient to satisfy its burden to overcome the heart presumption. The court explained that to overcome the presumption, the employer must establish a contemporaneous, non-work related event was the sole cause of the heart trouble.

As Justices Robie, Scotland, and Cantil-Sakauye wrote, "Simply pointing out that there is nothing specific about his job that caused his heart attack or put him at a greater risk for this condition does not satisfy the Department of Correction's burden to prove that a contemporaneous non-work related event was the sole cause of the heart attack in question." The justices also ruled the Department had not provided any evidence of a contemporaneous non-work related event that would explain the heart attack.

The Third District granted the request for publication of this Opinion filed by Mastagni, Holstedt, Amick, Miller, Johnsen & Uhrhammer on behalf of the Peace Officers' Research Association of California Legal Defense Fund ("PORAC LDF"), the California Correctional Peace Officers' Association ("CCPOA"), the CAUSE Statewide Law Enforcement Association, the California Association of Highway Patrolmen ("CAHP"), the Sacramento Police Officers' Association ("SPOA"), the Sacramento County Deputy Sheriffs' Association ("SCDSA"), the Riverside Sheriffs' Association ("RSA"), the San Francisco Deputy Sheriffs’ Association ("SFDSA"), and the Deputy Sheriffs' Association of Alameda County ("DSA of Alameda County").

Michael Amick is a partner in the Workers' Compensation Department. Kim Corbin is a recent graduate from McGeorge School of Law who is clerking in our Workers' Compensation department.