Wednesday, October 7, 2015

Courts and The Bargain

This week I've been writing about the Grand Bargain - whether it is still Grand and whether it is still a Bargain.

And my opinion has been that certainly workers' compensation has changed as has the economy it covers, and that each change involves bargaining and compromise. There are winners and there are losers.

We sometimes wonder how does the bargain change and why the winners and losers get redefined - a case reported yesterday in WorkCompCentral is demonstrative.

Armando Tavares had worked as a truck driver for Luis Scattini & Sons. The 48-year-old father of four complained of chest pains while he was at work on June 13, 2011.

After Tavares finished pressure-washing the disc brakes on his truck, he asked his supervisor for a ride to the doctor's office.

Tavares indicated that he needed to use the restroom before departing, and his coworkers became concerned when he did not emerge from the portable toilet.

Tavares' colleagues forced the door open and found him slumped inside. Emergency responders were summoned to the scene and they attempted to revive Tavares, to no avail. A coroner later determined that Tavares had died from ischemic heart disease.

Tavares' widow and dependent children filed a claim for death benefits, which Scattini contested.

Dr. Revels Cayton was assigned to the case as the panel qualified medical evaluator. Cayton opined that Tavares' work activities contributed to the cause of his heart attack and death.

Cayton noted that Tavares had "very severe coronary artery disease," which "placed him at increased risk for the development of a sudden cardiac event."

Cayton said he thought it was "fairly obvious given the extensiveness in the coronary disease," that Tavares would still be alive "had he not washed those disc brakes and had he not come to work that day."

Scattini then obtained a report from Dr. Maria Nellie Betancourt which attributed Tavares' death was "solely due to the nonoccupational, preexisting and extensive coronary artery disease without any contribution from work."

Betancourt opined that Cayton’s finding of a causal-connection was speculative because Tavares was not performing any physically demanding activities at the time of his heart attack.

As there was some evidence that Tavares had been complaining of chest pain for two days prior to his death, Betancourt said it was possible that Tavares' heart attack had actually begun long before he got to work.

Betancourt also posited that Tavares "may have had to do a Valsalva maneuver to force the stools out" when he was in the restroom. The Valsalva maneuver is the medical term for the act of attempting to forcibly exhale while keeping the mouth and nose closed.

Betancourt said this action "may have tipped the scales enough to provoke a cardiac decompensation leading to death," and she thought this was "most likely" what had happened.

The Workers' Compensation Judge relied on the opinions of both doctors to find that Tavares' death was compensable. He awarded $320,000 to Tavares' family last December.

Scattini petitioned for reconsideration, but a WCAB panel comprised of Commissioners Katherine Zalewski, Marguerite Sweeney and Deidra Lowe upheld Crymes' ruling in March.

Scattini then sought judicial review, and the 6th District Court of Appeal issued writ on Sept. 14, accepting the case.

I was frankly surprised to see an appellate court accept the case for review. There is a long line of case law about heart attacks at the work place, and in general, if a heart attack is experienced at work, regardless of the co-morbid factors or non-industrial onset, it is compensable.

Scattini's lawyer argues that the "WCAB's order denying reconsideration allows a decision to stand which does not comport with well-established legal precedent as to what constitutes credible scientific evidence," stating that the proper standard for review of the medical evidence is the Daubert standard.

The Daubert standard is used in Federal courts, and has been adopted formally by some states, discounted by other states, and some states have been silent on the issue. California is one of those states.

The general standard in California though is "substantial evidence": is the evidence "good enough" that it can be relied upon to support a conclusion, even in the face of perhaps better, contradicting evidence.

Did Scattini bargain (or in actuality, its insurance carrier, Star Insurance Company administered through Meadowbrook Insurance Group) for a heart attack? Did Tavares bargain for a fight?

Probably none of this. The bargain is being mediated by the courts in this situation, where neither Business nor Labor have much persuasion beyond the facts and the law, and there may be an alteration to the generally accepted standard of evidence in workers' compensation heart attack cases.

Or not.

Which brings me to my point about the Grand Bargain and its various permutations through the years - If the facts are not in your favor, argue the law; if the law is not in your favor, argue the facts; if neither the law nor the facts are in your favor, baffle 'em with bullshit.

Now you know how the Grand Bargain has become distorted over time.

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