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.
What Diseases Are Covered And What Diseases Are Not
Heart disease takes many forms. The Commission has reaffirmed that “chest pains” alone do not constitute heart disease, but angina (chest pain from constricting blood flow) can be. Sinus tachycardia (abnormally fast heart rate) is a form of heart disease, although in some cases, medical experts may disagree that that is even a disease at all. PVC’s (premature ventricular contractions), a type of arrhythmia, have also been found to be a form of heart disease, as have benign and infrequent conditions such as sinus arrhythmia. On the other hand, the full Commission has ruled that postural orthostatic tachycardia syndrome, a nervous system disorder affecting the body’s regulation of blood pressure, is not heart disease covered under the presumption because the presumption only applies to diseases of the heart and not to every condition that tangentially affects the heart. Therefore, it is important to understand the nature of the medical condition in determining if it is a form of heart disease.
We are seeing an increased incidence of cardiomyopathy claims. Cardiomyopathy is disease of the heart muscle tissue causing the heart to malfunction. Ischemic cardiomyopathy is usually the result of a previous myocardial infarction (heart attack), so the success of defending these claims usually depends on whether there are defenses to the underlying heart attack claim. Non-ischemic cardiomyopathy, on the other hand, has many causes but stress is not one of them, at least not directly. In many cases, when the cause is not readily known, the diagnosis is “idiopathic” cardiomyopathy. However, medical science has discovered that a significant portion of those with idiopathic non-ischemic cardiomyopathy actually have a genetic cause which can now be explored through DNA testing. With some types of cardiomyopathy, such as hypertrophic cardiomyopathy, genetics is the primary or sometimes the only known cause. Therefore, knowing the type of cardiomyopathy involved is critical to the defense of these claims.
The Cancer Presumption
These cancer claims can be successfully defended. The key to the defense of many cancer claims is to make certain the type of cancer the claimant has is one that falls strictly under the cancers listed in the presumption (e.g.- rectal cancer which is covered vs. colon cancer which is not). Moreover, the claimant still must prove exposure to a toxic substance that is a known or suspected carcinogen capable of causing the type of cancer involved. But not all substances are carcinogens and not all carcinogens cause all types of cancer, so compensable exposure is not a certainty.
Lung cancer, while a form of cancer, is typically brought under the respiratory disease section of § 65.2-402(A) covering firefighters. These claims have been successfully defended on several grounds, the most effective defense being that the firefighter did not work long enough for the work exposure to have caused the lung cancer. Typically, if there is less than ten years from the date of the first occupational exposure to the date the cancer is diagnosed, then that short length of time is medically and scientifically insufficient for the exposure to have been the cause of the cancer regardless of the actual degree of exposure. In these cases, as in many lung cancer cases, smoking is likely the sole cause.
Even if a presumption claim is compensable, there are other issues that impact the claim:
· When does the statute of limitations begin to run on a presumption claim?
· When does the employer’s exposure for medical benefits and compensation begin? What is the date of communication of occupational disease or “date of accident” for a presumption claim when there is no such communication?
· Are there other financial resources available to the employee that can be used to settle the workers’ compensation claim for a reasonable amount?
· How do you determine who the responsible employer is at the time of “last injurious exposure” under the presumption?
A more thorough discussion of these and other important issues that arise in presumption claims can be found in the “Articles” section of our website at www.whittanddelbueno.com