Correctional Officer Heart Presumption Rebutted? You-betcha!
Labor Code section 3212.2 creates a presumption of industrial causation for corrections officers who, sustaining an injury to the heart (or “heart trouble”), have the injuries develop or manifest themselves during employment, or, in some cases, up to 5 years later.
But, practically speaking, is this presumption ever rebutted? Is it possible an evaluating physician will conclude the heart trouble developed or manifested itself before applicant began working for the Department of Corrections? After all, we’ve seen an industrial award to a sheriff’s deputy under section 3212.5 for a congenital heart defect.
The answer, apparently, is yes. I respectfully direct your attention to the writ denied case of Michael Yubeta v. Workers’ Compensation Appeals Board. [Forgive your humble author his “you-betcha” puns. Just give a polite smile and keep reading.]
Applicant corrections officer (the penal kind, not grammar), filed a claim for heart disease after thirteen years of employment by the Department of Corrections and Rehabilitation. The parties agreed to a medical evaluator who, after evaluating applicant, diagnosed him with cardiovascular disease and coronary heart disease.
However, following a thorough review of the records (possibly guided by a well drafted letter), the AME found the cardiovascular disease to have manifested itself before applicant began working for the DOC.
Therefore, reasoned the AME, the public safety officer presumption of section 3212.2 does not apply, and 85% of the impairment should be apportioned to non-industrial causes. The other impairments, including the psyche claim, went as these things normally do.
Did applicant petition for reconsideration? Yubet[ch]a!
In his report and recommendation that applicant’s petition be denied, the Workers’ Compensation Judge argued that the designation of an agreed medical evaluator reflects a recognition from the parties of the evaluator’s competence and impartiality.
Given this, the WCJ’s report continued, “[t]he question of when a disease process develops and manifests itself was a question of medical fact within the expertise of” the AME. As the AME found, the hypertension “develope[d] and manifest[ed] itself” before applicant became a correctional officer employed by the State.
The Workers’ Compensation Appeals Board denied applicant’s petition for reconsideration, adopting and incorporating the WCJ’s report. The Court of Appeal denied applicant’s writ of review.