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California: Litigation Toolbox: Developing the Record When a Stroke Is Involved

January 11, 2023 (10 min read)

Question: What do the injured workers listed below have in common?

Answer: Each of these employees claimed a devastating industrial stroke.

A review of these cases provides an opportunity to learn how to incorporate best practices for developing the record when an alleged work-related stroke claim is involved.

Manuel Fagundes - Project manager sustained a specific injury (a carotid artery tear) resulting in a stroke while moving a four-thousand-pound tank at work.

Nathan Munso - Police officer, while on a business trip (and therefore was deemed a “commercial traveler”) suffered a specific injury (a carotid artery tear,) resulting in a stroke, leaving applicant with full scale amnesia and essentially unable to communicate.

Timothy Murray - Police Officer sustained a cumulative trauma (CT) injury to his circulatory system.  After exiting the Indiana Jones ride at Disneyland, he sustained a carotid artery tear resulting in a stroke. Substantial medical evidence indicated this injury was due to the cumulative effect of applicant’s performance of his usual and customary duties as a police officer over an extended period of time.

Behnam Behboudi - Pharmacist sustained a cumulative trauma (CT) in the form of stenosis of the carotid artery resulting in a stroke, due to long term stresses brought on by his employment.

I. Applicant Has the Initial Burden of Proof as to AOE/COE

In order to prevail in a workers’ compensation claim, the applicant must provide substantial evidence that the alleged industrial injury arose out of (AOE) employment and occurred in the course of (COE) employment. When the stroke occurs at work, the burden of proving “course of employment” is met. However, the challenge arrives when the applicant must link the stroke with their employment. The work environment need not be the sole cause of the stroke, but it must be a “contributing factor.” (See South Coast Framing v. Workers’ Comp. Appeals Bd. (Clark) (2015) 61 Cal. 4th 291, Lab. Code §§ 3202.5; 3600(a).) In most cases, “substantial medical evidence” is needed to connect the dots. Therein lies the rub: Substantial medical evidence is not always easy to obtain.

In the case of Manual Fagundes, 2022 Cal. Wrk. Comp. P.D. LEXIS 307, the defense offered “substantial medical evidence” in the form of a report from biomechanics expert, Kenneth A. Solomon, Ph.D. As noted above, Mr. Fagundes’ stroke occurred after attempting to move a four-thousand-pound tank, with the help of his colleagues. Dr. Solomon provided an extensive explanation as to how it was unlikely applicant had been exerting sufficient levels of force at work, just prior to the tear in the carotid artery. However, this evidence was not authored by a “medical” expert in workers’ compensation, but instead by a biomechanics expert. In addition to not being a medical physician, he appeared to be unclear on the correct legal theories that must be applied in these cases.

Therefore, the court concluded that the defense reports did not constitute “substantial medical evidence,” and that they could not be relied upon to deny AOE. Instead, the judge relied upon the remaining uncontroverted evidence, offered by applicant, to determine applicant’s stroke to be industrial.

The case of Salinas v. The Home Depot, PSI, 2022 Cal. Wrk. Comp. P.D. LEXIS 298, also dealt with a claim of industrial stroke. In that case, the WCAB was concerned the QME had used an incorrect legal theory and returned the matter to the trial level to develop the record as follows:

“Dr. Khanna used the incorrect standard when testifying that ‘Long hours, per se, may increase susceptibility, but are not neither necessary nor sufficient in and of themselves to cause a stroke.’ Necessary and sufficient is not the standard for causation in workers' compensation matters. Dr. Khanna must clearly opine utilizing the correct causation standard.”

II. Meeting the Burden of Proof

PRACTICE NOTE: The first step in developing the record for all workers’ compensation cases is to make a checklist of the evidence required to meet the client’s burden of proof linking the employment to the injury (AOE). Each time evidence is procured, a notation should be made next to each relevant item on the checklist as to the type of evidence obtained and the basis upon which it constitutes substantial medical evidence.

A. Use of the “Neutral Risk Doctrine”

The court, in the case of Munso v. Sacramento County Sheriff’s Dept., 2022 Cal. Wrk. Comp. P.D. LEXIS -- [see PDF at end of this article], was faced with a challenging set of facts. The applicant’s injury had left him unable to effectively communicate. In addition, amnesia had stolen his ability to recall the events immediately preceding his stroke. So, how would it be possible for applicant to meet his burden of proving that a “trauma” occurred shortly before his stroke?

Quoting the case of Clemmens v. Workers’ Comp. Appeals Bd. (1968) 261 Cal. App. 2d 1, 33 Cal. Comp. Cases 186, the Workers’ Compensation Judge (WCJ) applied the “neutral risk doctrine,” which is most often used in death cases when it is clear the death occurred while in the course (COE) of the worker’s employment, but it is not clear if the cause of death arose out of employment(AOE). The WCJ explained:

“The theoretical justification is similar to that for unexplained falls and other neutral harms: The occurrence of the death within the course of employment at least indicates that the employment brought deceased within range of the harm, and the cause of harm, being unknown, is neutral and not personal.”

The WCJ then explained the rationale for his finding of industrial injury:

“A very similar situation exists here. Applicant’s stroke was so severe that it resulted in amnesia and has rendered applicant unable to testify … Absent direct evidence to the contrary, applicant is entitled to a presumption that the traumatic event leading to his dissection arose out of his employment, while on commercial travel.”

Applying the neutral risk doctrine to the facts in the Munso case, and considering the attendant substantial medical evidence provided, the WCJ was able to issue a finding in favor of applicant, which was affirmed by the WCAB.

B. Use of Correct Legal Theory

In the case of Behboudi v. CVS Health Corp., 2022 Cal. Wrk. Comp. P.D. LEXIS 284, the WCJ relied on the QME in internal medicine, Dr. Ellis, in finding that the cumulative trauma of work stress caused Applicant’s stroke. Dr. Ellis had provided a series of examples as to how the long-term stresses of applicant’s employment as a pharmacist was one of the causes of applicant’s atherosclerosis, which advanced to such a degree that it resulted in applicant suffering a catastrophic stroke.  In addition, Dr. Ellis provided a plethora of medical research to support his legal theory as to causation.

The WCJ rejected the evidence from defense because the medical-legal evaluator did not use the correct legal theory in reaching his conclusion that applicant’s stroke was non-industrial. The defendant’s physician based his conclusion on statistical data that pharmacists, in general, do not sustain a higher rate of stokes than other similar situated individuals in other types of occupations.

The WCJ explained his reasoning as follows:

“Hence the legal issue before a medical-legal consultant attempting to determine causation of a cumulative injury must be to assess the physical or mental activities to which the employee was exposed, and then determine if that exposure over time caused a disability and/or a need for care…

To base a determination of a specific employee's injury solely upon the statistical class of employees to which the employee belongs is an incorrect legal theory of injury and cannot be accepted.”

III. Clarify Whether Injury Is “Specific” or a “Cumulative Trauma”

As you can see from the four examples set forth above, a stroke injury may be pled as either a specific injury (defined in Lab. Code § 3208.1(a)) or as a cumulative trauma injury (Lab. Code § 3208.1(b)). It is critical for the practitioner to study the initial medical record to determine which is the appropriate type of injury to plead in their particular case. This is critical in developing the medical record because each type of injury requires a different burden of proof.

In the case of Munso, supra, the carotid arterial dissection leading to the stroke was a physical specific injury and was not the result of a cumulative trauma.  Defendant attempted to refute industrial causation by arguing that the cumulative trauma of applicant’s leisure activities, such as his practice of jujitsu, could have been the mechanism of injury. However, since the injury in question is specific in nature, an argument regarding non-industrial causation of a cumulative trauma is not relevant.

Defendant further argued that it was applicant’s burden to prove that there was a traumatic event just prior to the stroke. However, given applicant’s amnesia and limited communication skills, that was not possible. Hence, the WCJ relied on the “neutral risk doctrine,” discussed above, to determine industrial causation.

The WCJ went a step further and acknowledged that claimant must meet their burden of proof. However, that does not negate the duty of the claims administrator, pursuant to 8 Cal. Code Reg. § 10109, to fully investigate the claim and to disclose any and all information regardless of whether that information requires or excuses benefits. Regulation 8 Cal. Code Reg. § 10109 states in part:

(a) … a claims administrator must conduct a reasonable and timely investigation upon receiving notice or knowledge of an injury or claim for a workers' compensation benefit.

(b) … (1) The administrator may not restrict its investigation to preparing objections or defenses to a claim, but must fully and fairly gather the pertinent information, whether that information requires or excuses benefit payment… The claimant's burden of proof before the Appeal Board does not excuse the administrator's duty to investigate the claim

The WCJ explained,

“The claims administrator was in a much better position to determine what traumatic event, if any, occurred just prior to the stroke. Since the claims administrator didn’t adequately investigate the injury per §10109, they are barred from relying on this issue as a way to skirt liability for this tragic injury.”

PRACTICE NOTE: It is interesting to compare the specific injury case of Munso, surpra, with the cumulative trauma case of Murray v. City of Fresno, 2016 Cal. Wrk. Comp. P.D. LEXIS 567. Both involved emergency service personnel with strenuous official duties. Both applicants sustained a carotid artery tear leading to a stroke. However, in the Munso case, the mechanism of injury was specific, rather than a cumulative trauma, as it was in the Murray case.  The only position that could prevail in each case was the one who offered proof for the type of injury in question. This illustrates the critical need to fully investigate the medical record to determine whether the injury should be pled as a specific or cumulative trauma injury. If an application has been filed, and it later turns out that the injury is other than what was initially pled, the relevant party should immediately amend the application to reflect the accurate type of injury. This will provide “due process” rights (notice and an opportunity to be heard) to opposing counsel to develop their record on the correct legal theory, thereby resulting in a level playing field for all parties.

IV. Conclusion

There is no set formula for developing the record in any given workers’ compensation case. All cases present unique issues, which often lead to cases of first impression requiring a trial. It is especially important that the discovery process begins as early as possible to detect any issues that a medical or other evaluator may need to address well before the case is set for a Mandatory Settlement Case (MSC). Waiting until the MSC may be too late to correct the record, resulting in severe detriment to your client.

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