Ninth Circuit decision highlights value of medical evidence

Ms Jamie Madriaga of Cox Wootton Lener Griffin & Hansen LLP have discussed the opinion of the Ninth Circuit Court of Appeal in the US in an article published by Standard Club. The writer noted the value of medical evidence in rebutting section 20(a) presumption in an aggravating injury case.

Under the United States’ statutory compensation law for injured shipyard employees (the LHWCA), such employees benefit from the presumption that an injury is work-related if they show harm, and that workplace conditions could have caused, aggravated, or accelerated such harm.

If an employee’s pre-existing condition is aggravated or accelerated by work conditions, the employer can be liable for the claimant’s entire disability, not just the aggravated or accelerated portion.

Employers have an opportunity to rebut the presumption with evidence that the harm was not work-related.

In Calabrese v BAE Sys Haw Shipyards, Nos. 18-72644, 18-0155, 2020 US App LEXIS 5075, 2020 WL 777652 (Ninth Circuit, February 18th 2020), Appeal Court rejected the broad proposition that pain at work necessarily equates to an aggravation of an earlier condition because medical evidence had established that the claimant’s employment did not cause his underlying condition and resulting permanent disability.

In this case the claimant worked as a production support/maintenance foreman at his employer’s facility at Pearl Harbour. During a period off from work, the claimant developed optic neuritis. Steroid treatment for the claimant’s optic neuritis caused him to develop bilateral avascular necrosis of the hips. The claimant alleged that he experienced pain while at work due to his hip condition, which ultimately rendered him disabled.

The claimant conceded that his employment did not cause his underlying hip condition, but he asserted that the pain he experienced at work while walking up his employer’s stairway constituted an “aggravation” that entitled him to benefits under the LHWCA.

The ALJ denied his claim for benefits, and the Benefits Review Board affirmed the ALJ’s finding that the employer had rebutted the section 20(a) presumption.

The claimant petitioned the Ninth Circuit to seek review of the Board’s order. The Ninth Circuit denied the claimant’s petition as the record supported the Board’s finding that the employer had presented substantial evidence to rebut the section 20(a) presumption.

The Ninth Circuit relied on the opinion of the employer’s medical expert that established:

  • the claimant’s employment did not cause the claimant’s avascular necrosis or any resulting disability;
  • the claimant would experience pain regardless of his activity, whether he was at work or at home lying in bed; and
  • the disability resulted from a natural progression of the pre-existing condition rather than from an employer-related aggravation.

The Ninth Circuit also held that the cases cited by the claimant were distinguishable.  The writer said that the key takeaway from the Calabrese opinion was that practitioners should ensure that they utilize medical expert testimony. The decision highlighted the critical value of medical evidence to rebut the causal connection between employment-related activities and a claimant’s disability.

Although a claimant carries the burden of persuasion throughout the claim, medical evidence is crucial in defending against LHWCA claims premised on aggravation of a pre-existing condition – provided that the medical opinion establishes that the claimant’s employment did not cause any aggravation or acceleration of a prior injury, or that the claimant’s disability resulted from the natural progression of the pre-existing condition.

In this case, the employer’s medical expert’s report concluded that the work-related aggravation had not caused the claimant’s disability. The Benefits Review Board determined the medical evidence rebutted the presumption of causation and that instead the claimant’s harm was caused by natural progression of the underlying condition. The Ninth Circuit affirmed.

https://www.standard-club.com/risk-management/knowledge-centre/news-and-commentary/2020/03/article-ninth-circuit-decision-highlights-the-value-of-medical-evidence-in-rebutting-section-20-a-presumption-in-aggravating-injury-case.aspx

https://www.standard-club.com/media/3283993/calabrese-v-bae-jmadriaga-summary-cwl.pdf

Full case report at: http://cdn.ca9.uscourts.gov/datastore/memoranda/2020/02/18/18-72644.pdf