Friday, May 24, 2013

Why I Don't Believe in Presumptions

A recent Oregon case provides an interesting perspective on statutory presumptions, and is demonstrative of why I generally don't believe in these statutory creatures.

Alan Hull worked as a fire district chief for the Estacada Rural Fire District.

In June 2007, the Clackamas County Sheriff's Office informed him that it suspected one of his long-term employees had embezzled $1.9 million from the fire district during the course of several years. The sheriff's office asked him to go undercover and gather evidence against the employee.

Hull agreed to do so, and the employee was later arrested.

The embezzlement, however, became the subject of public concern and anger. Some members of the public demanded that Hull be removed from office.

He suffered a heart attack in October 2007, shortly after asking his wife if she had overheard a comment by a nearby individual about the embezzlement.

Hull filed a claim for benefits, contending his heart attack was the result of stress from his undercover work and the community anger directed at him.

An administrative law judge ruled that Hull was not entitled to benefit from the statutory "firefighter's presumption," which provides a rebuttable presumption that a firefighter's cardiovascular condition is a compensable occupational disease.

The judge reasoned that since Hull's heart attack was caused by his stress, his claim was for a "mental disorder" and not a cardiovascular condition. The judge then proceeded to apply the heightened standard of proof for the compensability of mental disorder claims and denied Hull's request for benefits.

After the Workers' Compensation Board reversed the Court of Appeals Court of Appeals said it read Oregon's statutory scheme as providing that when a cardiovascular disease is caused by a stress-related mental disorder, the firefighters' presumption does not apply.

Since it was undisputed that Hull's heart attack was caused by his work-related stress, his heart attack had to be treated as a mental disorder, the court said.

In my mind, and I'm no doctor obviously, stress from fighting fires and saving lives, dealing with death, doom and destruction on a regular basis is no different than stress from engaging in a job activity that is generally outside the scope of defined duties but nevertheless results in considerable damage to the heart.

I'm no expert on Oregon work comp law, but Hull's claim wasn't for psychiatric or psychological injury - it was specifically for a heart attack and the Workers' Compensation Board's decision was the correct application of the law.

The applicable statutory presumption, ORS 656.802(4) reads:

"Death, disability or impairment of health of firefighters of any political division who have completed five or more years of employment as firefighters, caused by any disease of the lungs or respiratory tract, hypertension or cardiovascular-renal disease, and resulting from their employment as firefighters is an occupational disease. Any condition or impairment of health arising under this subsection shall be presumed to result from a firefighters employment. However, any such firefighter must have taken a physical examination upon becoming a firefighter, or subsequently thereto, which failed to reveal any evidence of such condition or impairment of health which preexisted employment. Denial of a claim for any condition or impairment of health arising under this subsection must be on the basis of clear and convincing medical evidence that the cause of the condition or impairment is unrelated to the firefighters employment."

In comparison, the Court of Appeals found that Hull's myocardial infarction was a physical event that was the product of a mental disorder under 656.802(1)(b), and thus applied 656.802(3) dealing with "mental disorders":

Notwithstanding any other provision of this chapter, a mental disorder is not compensable under this chapter unless the worker establishes all of the following:

"(a)The employment conditions producing the mental disorder exist in a real and objective sense.

"(b)The employment conditions producing the mental disorder are conditions other than conditions generally inherent in every working situation or reasonable disciplinary, corrective or job performance evaluation actions by the employer, or cessation of employment or employment decisions attendant upon ordinary business or financial cycles.

"(c)There is a diagnosis of a mental or emotional disorder which is generally recognized in the medical or psychological community.

"(d)There is clear and convincing evidence that the mental disorder arose out of and in the course of employment."

The Court said that the mental disorder provision was an exception to the firefighter's presumption and said that the legislative history supported this interpretation.

Because there was no dispute factually that Hull's heart attack was either induced or aggravated by mental stress, the Court said the injury must be analyzed under the mental stress statute.

My suspicion is that had Hull and his attorney anticipated that stress would trump the heart attack presumption that the case would have been worked up differently and that there would not be case law on the issue.

This is one of the reasons why presumptions lead to increased litigation, perhaps unfair denial of benefits, and are just plain troublesome.

Had Hull known that his case would be analyzed as a mental case rather than a physical case he would have presented sufficient evidence that such was the case. Rather, Hull relied up on a presumption that turned out to be inapplicable.

But it makes no sense because it is undisputed that Hull's heart attack was cause by work issues!

Perhaps technically the Court of Appeals is correct, but in the application of this case the analysis is backwards. One way or another it is undisputed that Hull's heart attack was industrially caused but for an incorrect application of the evidence.

The case was remanded, presumably for further work up. In the meantime a firefighter who went above and beyond call of duty suffers not only indignity, but a real injury, real disability, and further delay. 

And the employer may get to pass the buck onto other social systems for its ultimate responsibility.

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