DEFENDING HEART/LUNG/CANCER PRESUMPTION CLAIMS
Some of the most arcane and difficult workers’ compensation claims to defend are those arising under the presumption in Code § 65.2-402, otherwise known as the “heart/lung” presumption. The key to defending these types of claims is having a thorough understanding of the complex legal and medical issues presented. These remain difficult claims to defend successfully. Nevertheless, it is possible to defend many presumption claims, particularly if one knows where to look.
A Short Employment May Be Defensible
Once applicable, the presumption in Code § 65.2-402 may only be overcome by the employer if it proves by a preponderance of the evidence that (1) the disease resulted from a specific non-work related cause and (2) that the disease was not caused by the employment. Both prongs of the test must be met by the employer to successfully rebut the presumption.
Virginia courts have rejected the notion that the employer must “exclude” the possibility that the employment was a cause. Rather, the question is whether the employment probably was a contributing cause of the disease. If the employee only worked a few months or years after being hired before the heart disease was discovered, then many cardiologists take the position that that particular employee did not work in the occupation long enough for the job to be a factor in his heart disease because heart disease typically takes many years or decades to develop and progress. In some cases, this is an issue worth looking into and discussing with the treating cardiologist.
Appealing To Your Senses
Litigated workers’ compensation cases in Virginia are initially heard by a deputy Commissioner. The deputy Commissioner then issues a written opinion that decides the case and the issues in controversy. What appeal rights do you have if the deputy Commissioner does not rule in your favor?
“I’m Not a Doctor, But I Play One on TV!”
Remember those commercial advertisements from years ago? Actors with medical roles marketed medical products to commercial television viewers, while jokingly acknowledging that they did not have a license to practice medicine.
Gimme Shelter
Employees injured in work accidents often times cannot return to the job they had at the time they were injured, usually because of doctor’s restrictions or physical limitations. In many instances, such employees receive vocational rehabilitation services. These services are designed to help an injured employee in a number of ways, such as obtaining employment for them that takes into account any physical restrictions they may have as a result of the work accident, or by providing training on a new set of skills for use at work.
Having Their Cake and Eating It, Too
In a compensable claim, workers’ compensation insurance pays for medical treatment the injured employee needs because of the work injury. Like regular health insurance, sometimes workers’ compensation insurance pays only a portion of the bill for medical treatment and the doctor or hospital writes off the unpaid amount.