In California Workers’ Compensation Law, Safety and Law Enforcement Officers are afforded an Evidentiary Presumption for Pneumonia Injuries. This article will discuss the medical condition of Pneumonia, the Pneumonia Presumption, the application of the presumption, and Caselaw of interest.
What Is Pneumonia?
Pneumonia is an Injury to the Lungs. It is an infection which inflames the air sacs in the lungs. These air sacs are called the “alveoli.” Pneumonia can infect either one lung or both. The air sacs may fill with fluid or pus. Pneumonia can cause coughing with phlegm or pus, fever, chills, and difficulty breathing.
There are a variety of organisms which can cause pneumonia. These organisms can include bacteria, viruses and fungi.
Pneumonia can be a serious disease which can be life-threatening.
Why Is There A Presumption?
Caselaw has reported that “[n]o doubt, the inclusion of pneumonia within the terms of the presumption was made because of the commonly accepted concept that pneumonia, even if caused by viral infection, is also induced by exposure to inclement weather and to fatigue brought about by patrol duty or other demanding activities of police work.” See Thullander vs. WCAB, 38 Cal. Comp. Cases 380, 1973 Cal. Wrk. Comp. LEXIS 2214 (Cal. App. 1st Dist. June 26, 1973) (writ denied)
What Is The Presumption?
Labor Code Section 3212 provides “[i]n the case of members of a sheriff’s office or the California Highway Patrol, district attorney’s staff of inspectors and investigators or of police or fire departments of cities, counties, cities and counties, districts or other public or municipal corporations or political subdivisions, whether those members are volunteer, partly paid, or fully paid, and in the case of active firefighting members of the Department of Forestry and Fire Protection whose duties require firefighting or of any county forestry or firefighting department or unit, whether voluntary, fully paid, or partly paid, and in the case of members of the warden service of the Wildlife Protection Branch of the Department of Fish and Game whose principal duties consist of active law enforcement service. Excepting those whose principal duties are clerical or otherwise do not clearly fall within the scope of active law enforcement service.
Some such as
- Telephone operators
- Office workers
The term “injury” as used in this act includes hernia when any part of the hernia develops or manifests itself during a period while the member is in the service in the office, staff, division, department, or unit, and in the case of members of fire departments, except those whose principal duties are clerical, such as stenographers, telephone operators, and other office workers.
Also in the case of county forestry or firefighting departments, except those whose principal duties are clerical and in the case of active firefighting members of the Department of Forestry and Fire Protection whose duties require firefighting.
In the case of members of the warden service of the Wildlife Protection Branch of the Department of Fish and Game whose principal duties consist of active law enforcement service, excepting those whose principal duties are clerical or otherwise do not clearly fall within the scope of active law enforcement service such as stenographers, telephone operators, and other office workers, the term “injury” includes pneumonia … that develops or manifests itself during a period while the member is in the service of the office, staff, department, or unit. … The compensation that is awarded for … pneumonia shall include full hospital, surgical, medical treatment, disability indemnity, and death benefits, as provided by the workers’ compensation laws of this state.
… pneumonia so developing or manifesting itself in those 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 presumption shall be extended to a member following termination of service for a period of three calendar months for each full year of the requisite service, but not to exceed 60 months in any circumstance, commencing with the last date actually worked in the specified capacity.
The … pneumonia so developing or manifesting itself in those cases shall in no case be attributed to any disease existing prior to that development or manifestation.” [emphasis added]
Is There Another Pneumonia Presumption Statute?
Yes. There is Labor Code Section 3212.10, which provides that “[i]n the case of a peace officer of the Department of Corrections who has custodial or supervisory duties of inmates or parolees, or a peace officer of the Department of the Youth Authority who has custodial or supervisory duties of wards or parolees, or a peace officer as defined in Section 830.5 of the Penal Code and employed by a local agency, the term “injury” as used in this division includes …, pneumonia… that develops or manifests itself during a period in which any peace officer covered under this section is in the service of the department or unit. The compensation that is awarded for that injury shall include full hospital, surgical, medical treatment, disability indemnity, and death benefits as provided by the provisions of this division.
The …pneumonia… so developing or manifesting itself shall be presumed to arise out of and in the course of 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. This presumption shall be extended to a member following termination of service for a period of three calendar months for each full year of requisite service, but not to exceed 60 months in any circumstance, commencing with the last date actually worked in the specified capacity.
Does the Presumption Apply to Me?
The first step to see if presumption applies in your case is to determine whether your particular position and the particular department are included within the Labor Code’s provisions concerning the Pneumonia Presumption. Also, you can consult with your Human Resources Department. Finally, you can consult with an attorney.
How Does Is Apply In Pneumonia Case?
The presumption creates an evidentiary advantage that is afforded to those individuals for whom it applies. The presumption applies if the pneumonia develops or manifests during employment. Also, it can be extended out to up to 60 months from the last date of employment-based upon years of service. The presumption means that pneumonia will be considered work-related if it is not rebutted by the claims administrator. If it is considered as work-related, then workers’ compensation benefits will be provided and the medical treatment will be paid for by the claims administrator.
Can The Presumption Be Rebutted?
Yes. The presumption can be rebutted. The claims administrator will attempt to prove that a pneumonia pre-dated the injured workers start of employment in that position.
Has There Been Caselaw Concerning Pneumonia?
Yes. There has been caselaw applicable to the pneumonia presumption.
Valley Fever as a Form of Pneumonia
In a Noteworthy Case, when the Evaluator described Valley Fever as a Pneumonia, the WCAB allowed for the Pneumonia Presumption to apply. Antron Lee vs. State of California 2017 Cal.Wrk.Comp P.D. Lexis 543.
Pneumonia Presumption Rebutted
In Reynolds vs. WCAB 76 C.C.C. 269 (writ denied), Defendant was able to offer a medical opinion that “Decedent’s death did not appear to be related to a respiratory infection, but rather to problems with sleep apnea, hypoventilation, hypotension, and decline in mental status due to use of fentanyl combined with other narcotics.”
Presumption Not Rebutted
In City and County of San Francisco vs. WCAB (1972) 37 C.C.C. 157(writ denied) Essentially In the case, the source of the pneumonia in the matter was unknown. Thus, the presumption was unrebutted and applied.
If The Presumption Does Not Apply, Should I Pursue My Pneumonia Claim?
Yes. The presumption is merely an evidentiary advantage with respect to the case. Even if the presumption does not apply, an Injured Worker is still capable of pursuing and prevailing on a pneumonia claim.
If The Pneumonia Presumption Is Rebutted, Can I Still Pursue My Claim?
Yes. An aggravation or acceleration of a pre-existing medical condition is still an industrial injury. Essentially, the rebutting of the presumption may allow the claims administrator to claim apportionment to pre-existing conditions. Without the presumption, you still would be able to claim all of the workers’ compensation benefits. The only difference would be a reduction in the permanent disability benefits if apportionment to non-industrial factors is applicable.
What If I Need Advice?
If you would like a “free” consultation concerning any workers’ compensation case, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. They have been helping people in Central and Southern California deal with their worker’s compensation cases for 28 years. Contact us today for more information.