ADJ11604315 · March 20, 2023

The WCAB panel found the Petition for Reconsideration lacked substantial medical evidence to rebut the heart trouble presumption, relying on the absence of a key medical record and the QME's unsupported opinion.

From the decision · page 3Date of Injury: 07/01/2000 through 10/15/2018 Age on date of injury: 45 Occupation: Corrections Officer Body part injured: Heart Identity of petitioner: Defendant Timeliness: The petition is timely filed. Verification: The petition is verified. Date of the Award: December 29, 2022

No medical record dated February 10, 2018 exists to support pre-existing hypertension

Favours Applicant prevailed

The QME's opinion relied heavily on this non-existent record, undermining the employer's rebuttal of the presumption.

From the decision · page 4This is the problem which is not addressed by the Defendant, and was also overlooked by the trial judge in the first trial. QME Dr. Patel relies upon a verbal answer to a question posed by himself to the applicant regarding his medical history. Specifically, that the applicant admits to being diagnosed with `hypertension' 18 years earlier [estimated to be in 2000] in a (supposed) 02/18/2018 Kaiser record. In going through the medical file, this appears to be the result of Dr. Patel doing calculations in his head. But, the truth of the matter is never questioned.

QME Patel's opinion was based on unsupported inference and guesswork without substantial medical evidence

Favours Applicant prevailed

This lack of substantial evidence meant the employer failed to rebut the heart trouble presumption.

From the decision · page 7the applicant did not have LVH prior to employment. The QME disagrees with this finding. Before the echocardiogram in April 2021, the QME reported, "there is no mention of cardiac diagnosis or diagnoses referable to the heart throughout the review of medical records." (Joint BB, p. 6:242.) In his supplemental report he repeated, " there are no indications of heart trouble at this time." (Joint CC, p. 4:159.) In his deposition, the QME stated again, "how can you say that [he developed left ventricular hypertrophy] without any proof, though? I don't have an echocardiogram" (Joint AA, p. 16) A review of the medical records demonstrates that these statements are correct. (Id. at p. 12-14.) the applicant did not have hypertension prior to his [employment] with Defendant. The QME opined, "pre-existing conditions are exempt from the presumption for heart trouble for correctional officers" and provided 0% impairment based on pre-[existing] hypertension. (Joint FF, p. 3:104.) However, neither Defendant nor QME, can point to a single medical record to prove Applicant had pre-existing hypertension before he began his [employment] with Defendant.

QME Patel opined that the applicant's hypertension pre-existed employment based on an evaluation and a non-existent February 10, 2018 Kaiser record, which was later discredited.

The QME's opinion was found to be unsupported by substantial medical evidence due to reliance on a non-existent medical record and guesswork.

From the decision · page 3"PQME Patel did not opine that Applicant had pre-existing hypertension by wizardy, [sic] but relied upon his evaluation with Applicant. The basis for PQME Patel's opinion that the hypertension pre-existed employment was the evaluation with Applicant on March 13, 2019. The entire record reveals that

Labor Code § 3212

Heart trouble presumption under Labor Code § 3212

The presumption applies when heart trouble develops or manifests during or within the statutory period after employment.

From the decision · page 6The heart trouble presumption is triggered when there is either a development or manifestation of heart trouble during a period of employment. (Lab. Code § 3212.) The presumption is extended following termination of service for a period of three calendar months for each full year of requisite service..." (Lab. Code § 3212.)

Labor Code § 3212

Burden of proof on employer to rebut heart trouble presumption with substantial medical evidence

Employer must provide substantial medical evidence to rebut the presumption; mere opinion without evidence is insufficient.

From the decision · page 6Once the Applicant [establishes] the presumption, the burden of proof is imposed on the employer to rebut it using [substantial medical] evidence. (Lab. Code § 3212l See also Reeves v. Worker's Comp. Appeals Bd, (Reeves) 80 Cal. App. 4th 22, 30; Zipton v. Worker's Comp. Appeals Bd. (1990) 218 Cal. App. 3d 980, 988, fn. 4.) Without substantial medical evidence to support the employer's

Muznik v. Workers' Comp. Appeals Bd. (1975) 51 Cal. App. 3d 622; Thompson v. State of California (2017)

Hypertension alone is not 'heart trouble' under the presumption

Hypertension is distinguished from heart trouble and does not trigger the presumption by itself.

From the decision · page 8Secondly, even if Applicant did have hypertension pre-employment, this is not enough to rebut the presumption. California [Labor] Code section 3212.2 requires a finding of "heart trouble", which case law has well established that hypertension alone is NOT "heart trouble" within the meaning of presumption. (See Muznik v. Workers' Comp. Appeals Bd., (1975) 51 Cal. App. 3d 622; See also Thompson v. State of California, (2017) Cal. Wrk Comp. P.D. LEXUS 105 [distinguishing hypertension from "heart trouble"]. A finding that Applicant's Heart Trouble is rebutted because his hypertension predated employment creates precedent that hypertension is "heart trouble" and completely disregards case law on this issue.

Absence of a February 10, 2018 Kaiser medical record relied upon by QME Patel

From the decision · page 4This is the problem which is not addressed by the Defendant, and was also overlooked by the trial judge in the first trial. QME Dr. Patel relies upon a verbal answer to a question posed by himself to the applicant regarding his medical history. Specifically, that the applicant admits to being diagnosed with `hypertension' 18 years earlier [estimated to be in 2000] in a (supposed) 02/18/2018 Kaiser record. In going through the medical file, this appears to be the result of Dr. Patel doing calculations in his head. But, the truth of the matter is never questioned.

QME Patel's opinion based on unsupported inference and guesswork

From the decision · page 7the applicant did not have LVH prior to employment. The QME disagrees with this finding. Before the echocardiogram in April 2021, the QME reported, "there is no mention of cardiac diagnosis or diagnoses referable to the heart throughout the review of medical records." (Joint BB, p. 6:242.) In his supplemental report he repeated, " there are no indications of heart trouble at this time." (Joint CC, p. 4:159.) In his deposition, the QME stated again, "how can you say that [he developed left ventricular hypertrophy] without any proof, though? I don't have an echocardiogram" (Joint AA, p. 16) A review of the medical records demonstrates that these statements are correct. (Id. at p. 12-14.) the applicant did not have hypertension prior to his [employment] with Defendant. The QME opined, "pre-existing conditions are exempt from the presumption for heart trouble for correctional officers" and provided 0% impairment based on pre-[existing] hypertension. (Joint FF, p. 3:104.) However, neither Defendant nor QME, can point to a single medical record to prove Applicant had pre-existing hypertension before he began his [employment] with Defendant.