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Jackson v. Workers' Compensation Appeals Board10/27/2005
CERTIFIED FOR PUBLICATION
OPINION ON REHEARING
We conclude that the Workers' Compensation Appeals Board (WCAB) erred in concluding that the evidence presented in this case rebutted the presumption in Labor Code section 3212.2 that the applicant's heart trouble arose out of and in the course of his employment as a correctional officer for the Department of Corrections.
FACTUAL AND PROCEDURAL BACKGROUND
I. Facts
Barryn Davis, Sr., worked as a correctional officer with the Department of Corrections at Deuel Vocational Institution in Tracy, California, from 1986 to 1999. He was the guardian of Barryn Davis, Jr.
During the 1999 Thanksgiving holiday, Davis, Sr., developed an upper respiratory infection. Davis, Sr., then developed bronchitis which spread to the heart. The virus caused a viral myocarditis that led to Davis, Sr.'s sudden death by heart attack at his home on December 15, 1999.
II. Procedure
Cynthia Jackson, as the guardian ad litem for Barryn Davis, Jr., filed an application for adjudication of claim asserting that Davis, Sr.'s heart attack arose out of and in the course of his employment. In those proceedings, Jackson invoked the presumption contained in Labor Code section 3212.2, which provides in relevant part: "In the case of officers and employees in the Department of Corrections having custodial duties, . . . the term `injury' includes heart trouble which develops or manifests itself during a period while such officer or employee is in the service of such department or hospital. [ ] . . . [ ] Such heart trouble so developing or manifesting itself in such cases shall be presumed to arise out of and in the course of the employment. This presumption is disputable and may be controverted by other evidence, but unless so controverted, the appeals board is bound to find in accordance with it."
The matter was submitted on the police report, the coroner's report, and the reports of two physicians concerning Davis, Sr.'s heart trouble. On the applicant's behalf, Robert A. Blau, M.D., stated he believed that Davis, Sr.'s heart attack stemmed from upper respiratory infection. Dr. Blau's report concluded that under Labor Code section "3212[.2], heart disease developing, manifesting or progressing during an individual's employment as a peace officer is considered to be an industrial injury."
The Department of Corrections submitted a report by Eugene Ogrod, M.D. Dr. Ogrod conceded that Davis, Sr., died of a heart problem that derived from his respiratory illness. Dr. Ogrod, however, argued that the viral process "can be acquired in the course of a variety of daily activities in which there is contact with the public. So, there is nothing specific about the patient's occupation that would lead us to conclude that his viral infection and the secondary myocarditis was occupationally related." The doctor continued, "absent the application of the heart problem presumption, we would consider this a nonoccupational medical problem." Dr. Ogrod's report concluded, " here would be nothing in the sequence of events that would be linked to a specific occupation or to suggest that his occupation placed him at greater risk for developing this set of problems. If the heart problem presumption is applied, it is applied on an administrative basis. I am not saying it is inappropriate to apply it on that basis. I am simply saying that there is no medical basis that would justify linking this patient's acute medical problems to his occupation, absent an administrative decision to apply the presumption."
The administrative law judge (ALJ) concluded that Dr. Ogrod's medical opinion did n
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