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Workers' Compensation

California: The Latest Word on Pneumonia and the Presumption of Industrial Causation

Most workers’ compensation practitioners have general familiarity with the statutory presumptions of industrial causation applicable to peace officers. (See, Lab. Code § 3212, etc.) These statutory presumptions were enacted to make it easier for certain employees who provide vital and hazardous services to prove industrial causation. (City of Long Beach v. Workers’ Comp. Appeals Bd. (Garcia) (2005) 126 Cal. App. 4th 298 [70 Cal. Comp. Cases 209].) One of these provisions is Labor Code section 3212.10, which creates a presumption of industrial injury when a peace officer develops pneumonia while in the service of the law enforcement agency. One aspect of that statute that has been less well understood is the exact nature of pneumonia necessary for the presumption to be applicable. The recent panel decision in Marshall v. Santa Clara County Sheriff’s Department (April 8, 2019) 2019 Cal. Wrk. Comp. P.D. LEXIS 145, provides important clarification on that point.

Marshall, a deputy sheriff, worked for approximately 25 years at a correctional facility. His duties involved patrolling the facility and supervising the inmates. Throughout his tenure, there were many different types of birds, including thousands of pigeons, at the facility. Marshall developed a chronic cough and was later diagnosed with hypersensitivity pneumonitis. He claimed an industrial injury and was evaluated by a QME. Dr. Fishman, the QME, confirmed the diagnosis of hypersensitivity pneumonitis (pneumonitis). He explained that the terms, “pneumonitis” and “pneumonia” are used interchangeably in medical literature, but the etiology of both is different. Pneumonitis is a non-infectious, non contagious inflammation of the lungs, whereas pneumonia is an infectious inflammation of the lungs that is often contagious. Further, while the functional effect of both conditions on lung function can be similar or identical, pneumonia is caused by infectious agents while pneumonitis is caused by exposure to a non-infectious agent. Dr. Fishman was not aware of Marshall’s exposure to birds and opined that without knowledge of the specific antigen to which Marshall was exposed, it would be speculative to say that industrial exposure contributed to the development of pneumonitis. Marshall’s request to develop the record with further medical evidence was denied on the basis that he waited too long to make the request. The WCJ found that pneumonitis is not pneumonia within the meaning of Labor Code section 3212.10, and denied Marshall’s claim.

In its Decision after Reconsideration, the majority affirmed the WCJ’s decision, endorsing her application of a prior panel decision, Kimber v. City of Los Angeles (2017) 2017 Cal. Wrk. Comp. P.D. LEXIS 387 [82 Cal. Comp. Cases 1538]. Kimber, a police officer, developed flu-like symptoms. She was provided with medications, but they were not effective. She lost consciousness, was admitted to the hospital and died a few days later. An autopsy was performed, and the cause of her death was found to be acute bronchiotracheopneumonitis. Kimber’s dependents sought death benefits, claiming entitlement to the statutory presumption of industrial causation. The Agreed Medical Evaluator (AME) explained that pneumonitis and pneumonia are both lung infections that can arise from similar causes, but pneumonitis is an inflammation of the lining of the respiratory passages, whereas pneumonia is an inflammation/infection of the lung tissue, with fluid accumulation inside the lung. Without information on Kimber’s exposure to the virus that caused her death, the AME was unable to state that work duties played a role in her illness. The WCJ applied the presumption to find industrial causation, noting the similarities between pneumonitis and pneumonia and the public policy underlying the presumption in favor of peace officers. Defendant sought reconsideration and a panel rescinded the WCJ’s decision, stating that they could not read into the statutory language a medical condition (i.e., pneumonitis) that is not expressly covered by the statute.

In this case, the dissenting Commissioner states that she would have applied the presumption of industrial causation to Marshall’s claim and would have returned the matter to the trial level for further development of the record. She emphasizes the expert testimony of the AME that the terms “pneumonitis” and “pneumonia,” are used interchangeably in the medical literature and medical terminology. Given the interchangeable use of these two conditions, she is unable to conclude that the legislature intended to exclude non-infectious pneumonia (i.e., “pneumonitis”) from the definition of pneumonia. She also questions why the legislature would create a presumption that favors infectious etiology rather than environmental etiology, noting that such an intent would appear to conflict with the intent of the cancer presumption in Labor Code section 3212.1. Finally, since the distinction between pneumonitis and pneumonia is one of causation, the inevitable consequence will be a causation analysis to determine if the employee’s medical condition is pneumonia or pneumonitis, effectively eviscerating the purpose of the statutory presumption.

It is axiomatic that legislative intent is generally determined from the plain or ordinary meaning of the statutory language. In enacting Labor Code section 3212.10 the legislature used the word “pneumonia.” Can we assume that the reference to pneumonia reflects a conscious decision to exclude a type of inflammation of the lung, pneumonitis, that is non-infectious and non-contagious? Would such a restrictive reading of the statute, particularly given the AME’s testimony that pneumonia and pneumonitis are interchangeable terms in the medical literature, be contrary to the public policy underlying the statute? It seems quite likely that these questions will be front and center in any further proceedings in this matter.

Practitioners should check the subsequent history of the case before citing to it.

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