Opinion Mondays: D.C. Stroke Case Shows Fighting COVID-19 Presumptions is Going to Be Up-Hill Battle

In a decision that illustrates the difficulty that many employers will face if their state has adopted a presumption of compensability in COVID-19 cases, the District of Columbia Court of Appeals recently reversed a decision that had denied workers' compensation benefits to a diabetic claimant on the basis that the District's presumption of compensability [see D.C. Code § 32-1521(1)] had been rebutted by the employer, whose medical expert testified that the dominant factors in causing the claimant's stroke were her uncontrolled hypertension and poorly controlled diabetes mellitus [Ramos v. District of Columbia Dep't of Empl. Servs., 2020 D.C. App. LEXIS 188 (May 28, 2020)]. The court acknowledged the doctor's testimony, but indicated he had failed to address the core issue in the case: whether the claimant's employment had aggravated claimant's hypertension. A core take-away: in COVID-19 cases, targeted evidence likely will be required to rebut the presumption of compensability.

Commentary: Rebuttal Evidence Must Be Targeted

In recent months, numbers of states, either through executive order or through actual legislation, have established presumptions of compensability favoring some workers who contract COVID-19. As I earlier noted here, rebutting the presumption is going to be difficult in many cases. The recent D.C. case, cited above and discussed herein, while not a COVID-19 case, illustrates a core problem in rebuttals: the employer's evidence must be targeted.

Here, for example, we see a situation in which, for a host of reasons, the claimant was a ticking bomb. Diabetic, with uncontrolled hypertension, she was essentially a stroke waiting to happen. Would her stroke occur at home or would it occur at work? I suspect the chances were 50-50. While workers' compensation law generally does not follow a positional risk rule, under the D.C. Act, the claimant's presence at work at the time she sustained the stroke was essentially all she needed to establish her prima facie case.

The employer's evidence established that she was a ticking bomb, but it failed in one important aspect, said the appellate court. The employer came forward with no evidence that the spark setting off the bomb was something outside the employment.

Applying this case to COVID-19, it won't be enough to show that a claimant might have contracted the disease outside the employment. That fact is likely a given. The employer will need to present some sort of evidence that non-employment factors were likely the dominant factors. It remains to be seen, for example, whether evidence that a worker's spouse or child first contracted the disease will be sufficient to rebut the presumption. I suspect that in some jurisdictions, that may be the case. Again, the employer's evidence must be targeted.

Background of the Instant Case

Ramos worked as a janitor for the employer. According to her credited testimony, she was required to move heavy trash cans. She testified that she also had to move quickly in order to complete her work within her five-hour shift. Ramos testified that on April 19, 2016, while working hurriedly, a "heat wave" came over her, her extremities went numb, and she collapsed. She was transported her to the hospital where she was diagnosed as having suffered from a hemorrhagic stroke.

Ramos was diabetic and had a history of hypertension, as well as a pattern of skipping the medications prescribed to control her high blood pressure. In the months following her stroke, Ramos's treating physician opined that her stroke was "a consequence of" her hypertension, further noting that the stroke had left her permanently unable to use her left hand and arm.

Issue: Causation

Ramos sought workers' compensation benefits. The parties agreed that the only contested issue was whether Ramos's stroke was causally related to her employment. The medical evidence on that question came primarily from Dr. Nimetz, who at the request of the employer, performed an IME of Ms. Ramos and examined her medical records. In his report, the doctor opined that the major contributory factors of Ramos's stroke were uncontrolled hypertension and poorly controlled diabetes mellitus. The doctor testified that he would not attribute the cerebrovascular event to Ramos's employment.

On cross-examination, Dr. Nimetz agreed that physical exertion increased a person's blood pressure, including a person who already had high blood pressure, and agreed that strokes could result from high blood pressure. The ALJ intervened during Dr. Nimetz's testimony, asking the doctor if he had an opinion as to whether or not Ramos's job responsibilities would in any way cause her to have the stroke. Nimetz replied that he was insufficiently familiar with the work environment and Ramos's duties to have an opinion.

ALJ's Decision — the D.C. Presumption

The District of Columbia Workers' Compensation Act, D.C. Code § 32-1501 et seq., affords claimants a presumption that an injury is causally connected to their work, and therefore compensable, whenever they present some evidence of a work-related event, activity, or requirement which has the potential of resulting in or contributing to the death or disability [D.C. Code § 32-1521(1), emphasis added]. Once triggered, the employer may sever this presumed causal connection only by presenting substantial evidence specific and comprehensive enough to sever the potential connection between a particular injury and a job-related event.

Applying the presumption statute, the ALJ found that Ms. Ramos had produced enough evidence to trigger the statutory presumption of compensability (discussed below) but that Dr. Nimetz's report and testimony constituted "substantial evidence" rebutting the presumption. Having disposed of the presumption, the ALJ concluded that Ms. Ramos had not proven causation by a preponderance of the evidence. The Compensation Review Board (CRB) affirmed.

Appellate Court Says ALJ Did Not Consider Aggravation Issue

The appellate court indicated Ms. Ramos's theory of compensability was that her work aggravated her preexisting hypertension. The issue before the ALJ was whether the employer had presented substantial evidence to rebut. Critical to the case, stressed the appellate court, is that an employer's substantial evidence must address the employee's specific theory of causation. The court noted:

Dr. Nimetz's report and testimony were generally non-responsive to Ms. Ramos's aggravation theory, and when he was ultimately pressed on it, he was agnostic [Opinion, p. 10].

The court continued that the relevant question was not whether her work was the most dominant or even a major contributory factor to her stroke; it was whether her work was a contributing factor, a question upon which Dr. Nimetz's report did not opine. The court added:

Dr. Nimetz's testimony drives home the point that the opinions in his report were non-responsive to Ms. Ramos's aggravation theory. The one time he was asked to hone in on the aggravation theory and express an opinion about how likely it was that Ms. Ramos's work triggered her stroke, Dr. Nimetz was utterly agnostic [Opinion, p. 11].

Employer Need Not Show Causation was "Impossible"

The appellate court stressed that substantial evidence need not be conclusive or even particularly compelling; but it did need to be "targeted." An employer need not show, in order to rebut the presumption of causation, that causation was "impossible." The court instructed that if Dr. Nimetz had opined that Ms. Ramos's exertion at work was unlikely to have triggered her stroke, that bare expression of unlikelihood might have cleared the substantial evidence bar. But the doctor disavowed any such opinion and no other evidence directly addressed the aggravation theory. The presumption was, therefore, unrequited and Ramos's claims were compensable.