Rebuttal To Heart Presumption Discussion

This is an important case to read even though it is a non published decision. This opinion reviews the relevant law under Labor Code section 3212.2 dealing with the heart presumption.

The applicant was a correctional officer with the Department of Corrections. During the Thanksgiving holiday the applicant developed an upper respiratory infection. The applicant then developed bronchitis which spread to his heart. The virus caused a viral
myocarditis which led to his sudden death.

A death claim was filed and Labor Code section 3212.2 was raised. The applicant’s reporting physician indicated that the death resulted from a heart problem that resulted from the respiratory illness. The defendant’s medical indicated there was no medical basis for linking the death to the applicant’s employment.

The Workers’ Compensation Judge (WCJ) determined the case was industrial related because the defendant’s medical did not overcome the presumption. The Workers’ Compensation Appeals Board (WCAB), on petition for reconsideration, reversed the WCJ stating the injury was non-industrial.

The appellate court, on review, indicated that the presumption is one affecting the burden of proof and is rebuttable.

The burden is on the employer to prove the applicant’s trouble did not rise out of and in the course of employment. The employer must show a contemporaneous nonwork-related event to show it is non industrial.

The employer must show a nonindustrial event occurring at the same time as the heart trouble developed or manifested itself. Concluding that there is no medical evidence is not sufficient for overcoming the presumption.

Case: Jackson v WCAB
This is a non-published opinion

Harvey Brown
3501 Jamboree Rd. Suite 602
Newport Beach, CA 92660

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