Kirk v. Retirement Bd. of San Francisco
Filed 5/9/13
Kirk v. Retirement Bd. of San Francisco CA1/3
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
THREE
HENRY KIRK,
Petitioner and Appellant,
v.
RETIREMENT
BOARD OF THE CITY & COUNTY OF SAN FRANCISCO,
Respondent.
A133321
(San Francisco County
Super. Ct. No.
CPF-10-510577)
This
is an appeal from judgment following the trial court’s denial of a petition for
writ of administrative mandamus (writ
petition) filed by appellant Henry Kirk.
The underlying administrative proceedings resulted in a decision by
respondent Retirement Board of the City and County of San Francisco (board) to
deny appellant’s application for retirement disability based on a heart
condition that rendered him unfit to continue his service with the San
Francisco Police Department. For reasons
discussed below, we affirm the judgment.
FACTUAL
AND PROCEDURAL BACKGROUND
Appellant
became employed as a police officer for the
Francisco Police Department (police department) in 1975, ultimately
attaining the classification of Inspector II before his retirement in June 2008
due to his heart-related physical impairment.
Appellant’s
heart trouble appears to have surfaced in the 1980s, when he began to notice
rapid heart beating and other symptoms, first, when exercising in 1983, and,
next, when he passed out while driving a police vehicle in pursuit of a suspect
in 1983 or 1984. With respect to the
latter incident, appellant missed about a week of work before returning to full
duty. It was around this time that
appellant was promoted to Inspector.
In
1990, Dr. Frank Malin diagnosed appellant with paroxysmal supraventricular
tachycardia (PSVT). A few years later,
in 1994, appellant’s primary care physician, Dr. Borah, noted appellant
had a four-year history of high blood pressure for which he prescribed
Lisinopril. Also while under
Dr. Borah’s care, appellant was treated for hypertension as well as
periodic cardiac arrhythmias and tachycardia that typically would occur during
times of emotional or physical stress
and for which he prescribed Verapamil.
In
1997, Dr. Borah referred appellant to cardiologist Dr. Andrew
Rosenblatt after appellant reported experiencing rapid heart beating, dizziness
and light-headedness while driving a private vehicle. Appellant advised Dr. Rosenblatt that he
had been experiencing lightheadedness with rapid heart beating, sometimes
during rest and sometimes about 20 minutes into exercise (prompting him to
avoid exercise because he was “too frightenedâ€). Appellant denied to Dr. Rosenblatt that
he was under unusual stress or strain, but reported chewing tobacco and having
immediate family members (mother, father and brother) with high blood pressure. Dr. Rosenblatt concluded appellant had
probable hypertensive cardiovascular disease and possible cardiomyopathy, and
suggested he wear a heart monitor for 24 hours.
During this period, the monitor recorded abnormal ventricular ectopic
activity.
Also
in 1997, appellant was accused of leaking confidential information contained
within a police department promotional exam.
After a full investigation by local, state and federal agencies
(including a federal grand jury), appellant was exonerated of misconduct. At the time, appellant does not appear to
have informed his treating physicians, including Dr. Rosenblatt, that he
was experiencing any unusual stress arising out of these investigations.
In
February 1998, appellant was evaluated by Dr. John O’Brien for purposes of
a workers’ compensation claim. Appellant
had been assigned to a department position with limited physical activity due
to a medical order by Dr. Rosenblatt that precluded appellant from engaging
in work with undue stress.
Dr. O’Brien diagnosed appellant with “cardiomyopathy either
idiopathic or secondary to hypertension.â€
In his report, Dr. O’Brien described cardiomyopathy as a
“progressive disease†causing deterioration of the heart muscle sometimes
caused by infection or high blood pressure.
Dr. O’Brien acknowledged uncertainty as to the cause of appellant’s
particular condition, but noted it could have developed as “an idiopathic
dilated cardiomyopathy . . . [and led to] symptoms which began in [the]
1980s.†In any event, Dr. O’Brien
concluded: “Whatever the cause of Mr. Kirk’s cardiomyopathy, it certainly
developed during the years he was a San Francisco police officer and, as such,
at least in my experience, qualifies him under the provisions of the California
Presumption Statute. There are no
factors, at least in my experience, that successfully rebut this statute.†Dr. O’Brien thus recommended appellant
avoid activities with significant physical or emotional stress, but noted his
prognosis would depend on the progression of his disease.
Dr. Rosenblatt
also continued to treat appellant during this time. In May 1998, Dr. Rosenblatt again
expressed uncertainty as to whether appellant was suffering from
cardiomyopathy. In June 1998, however,
Dr. Rosenblatt diagnosed “early cardiomyopathy†after appellant reported
“occasional bouts,†elevated blood pressure and mild PSVT. Throughout the Summer and Fall of 1998,
Dr. Rosenblatt noted appellant was experiencing more heart palpitations, shortness
of breath, elevated heart beats, mild dizziness, and “feeling like passing outâ€
with certain activities like sexual activity and dancing. In December 1998, appellant’s Holter monitor
showed episodes of single PVBs.
Dr. Rosenblatt initially recommended appellant not return to police
work. Later, he recommended appellant
return to a light-duty assignment, which he did, beginning the less-stressful
assignment of checking guns in 1999.
In
July 1998, appellant was evaluated by Dr. Paul Anderson for the purpose of
determining “any work-related contribution.â€
Appellant told Dr. Anderson “he did not feel under a great deal of
occupational stress†at that time.
Dr. Anderson diagnosed appellant with hypertensive cardiovascular
disease with cardiomyopathy, a history of right trochanteric fracture and
paroxysmal atrial tachycardia. Agreeing
with Dr. O’Brien that appellant’s condition came within the statutory
presumption for public safety officers, Dr. Anderson concluded there was
“no indication that he would have developed symptomatic coronary disease at
this time absent his work.†While
cautioning against more stressful police duties, Dr. Anderson permitted
appellant to “continue in his usual and customary occupation as an inspector
. . . .â€
Medical
progress reports prepared by Dr. Rosenblatt in 1999 noted, among other
things, that appellant’s Holter monitor had registered 17 episodes of
ventricular bigeminy and small palpitations, he had reported two incidents of
rapid heart-beating and light-headedness, and his echocardiogram study indicated
no significant change since 1998.
Dr. Rosenblatt’s reports also noted appellant’s father died of
heart disease and his mother had high blood pressure. Similar reports from the time period of
October 1999 to October 2002 noted no significant episodes or developments but
continued occasional palpitations and elevated blood pressure.
On
July 24, 2007, Dr. Rosenblatt examined appellant and reported that, from a
cardiac standpoint, he was doing well with the exception of rare
palpitations. Four days later, on July
28, 2007, appellant collapsed and lost consciousness while dancing at a private
event, suffering a cardiac arrest. After
initially receiving emergency medical care that included emergency
catheterization, hypothermia treatment and life support, appellant received an
implantable cardiac defibrillator. Then,
following nearly six months of recuperation, appellant returned to police duty
on January 19, 2008.
On
January 17, 2008, appellant was examined by Dr. Robert Blau in connection
with his July 2007 workers’ compensation claim.
In a 33-page report dated January 26, 2009, Dr. Blau concluded
appellant’s heart trouble in July 2007 stemmed from “a progression of his
previously diagnosed and rated cardiomyopathy,†which, he noted, was “a result
of 25-plus years of hypertension.â€
Dr. Blau did not address the link (if any) between appellant’s
heart condition and his police service except to state “[he] has already
received acknowledgement of his hypertension and cardiovascular disease being
industrial.â€
On
March 18, 2008, appellant suffered another cardiac arrest while driving
home from work. A medically-trained
passerby saw appellant slumped over the steering wheel of his car and
administered first aid, saving his life.
Appellant, who sustained cognitive impairment due to his brain’s oxygen
deprivation, underwent another cardiac device surgical implantation
procedure. Upon the advice of several of
his treating physicians, appellant did not return to work, retiring effective
June 28, 2008.
title="">[4]
Just
before his retirement, on June 10, 2008, appellant applied for an industrial
disability retirement, indentifying a “cardiac arrest†in July 2007 as his
disabling condition. For purposes of
assessing his application, appellant was evaluated by Dr. Thomas Allems on
April 29, 2009. Dr. Allems examined appellant and
performed an extensive review of his medical history and records, ultimately
finding him unfit to serve as a law enforcement officer in any capacity and
thus “appropriately medically retired on a non-service connected basis.â€
With
respect to the underlying cause of appellant’s heart trouble, Dr. Allems
found it unrelated to his service as a police officer: “[Appellant’s] dilated
cardiomyopathy is likely idiopathic in nature; he may have a genetic
predisposition. As a result of his
cardiomyopathy he has had symptomatic supraventricular and ventricular
arrhythmias, dating back to the 1980s, with eventual ventricular arrhythmic
arrests on two occasions in July 2007 and March 2008. This sequence of events reflects the natural
history of his underlying cardiomyopathy.â€
In
reaching this conclusion, Dr. Allems acknowledged appellant’s condition
had been deemed work-related for purposes of workers’ compensation. Nonetheless, Dr. Allems made clear his
opinion that, from a medical standpoint, appellant’s condition was not
industrial in origin:
“I understand that his heart disease has
been accepted as work related for Workers’ Compensation purposes under the
California Labor Code statute for ‘heart trouble’ in peace officers. Absent that presumption – which is not based
on established occupational risk factors – his heart disease is nonindustrial
in origin, from a medical standpoint. [¶] With reasonable medical
probability, his cardiomyopathy . . . was unrelated to any factors of his
employment as a San Francisco police officer.
His heart pathology would have occurred at the same time (becoming
symptomatic shortly after his employment began) and progressed at the same rate
and requested the same degree of medical treatment absent his being employed as
a peace officer. There is no biological
mechanism that would link his heart condition to his employment as a peace
officer. These general medical
principles meet the ‘evidence to the contrary’ requirement of section 16.85 as
it relates to San Francisco police officers in my opinion.â€
Appellant’s
application was thereafter assigned to a hearing officer from the American
Arbitration Association for hearing.
After a contested hearing and rehearing, the hearing officer finally
denied appellant’s industrial disability retirement application on April 9,
2010. In doing so, the hearing officer
found appellant incapacitated from performance of his regular police officer
duties and entitled to a presumption that his incapacity was related to his
performance of those duties. However,
the hearing officer found this presumption rebutted by the board with proof
appellant’s heart condition was a pre-existing heart disease identified as
cardiomyopathy unrelated to his police work.
The board thereafter adopted the hearing officer’s findings and decision
in their entirety at its May 2010 regular board meeting.
On
July 27, 2010, appellant filed a petition for writ of administrative mandamus
pursuant to Code of Civil Procedure section 1094.5 (writ petition), seeking to
have the findings and decision denying his industrial disability retirement
application overturned. Following
another hearing, the trial court denied appellant’s writ petition and entered
judgment against him. In doing so, the
trial court specifically found that Dr. Allems’s opinions provided
sufficient evidence that appellant’s heart condition was non-industrial in
nature to overcome the contrary presumption.
On September 22, 2011, appellant filed a timely notice of appeal.
DISCUSSION
On
appeal, appellant raises the sole contention that the denial of his writ
petition was erroneous because it stemmed from an unproven factual finding – to
wit, that his heart condition did not arise out of and in the course of his
employment as a police officer.
Accordingly, appellant asks this court to reverse the judgment against
him and remand the matter to the trial court for entry of an order in his
favor. The following legal principles
govern our review.
According
to the San Francisco
Charter, “Any member of the police department who becomes incapacitated for
performance of his or her duty by reason of any bodily injury received in, or
illness caused by the performance of his or her duty, shall be retired.†(San Francisco Charter,
Appendix
A, § A8.586-3.) Where, as here, a member of the police
department with five or more years of service is incapacitated for performance
by reason of a heart-related medical condition that develops or manifests
itself during the course of such service, a rebuttable presumption exists that
the condition arose out of and in the course of the member’s employment.
Ord. No. 559 (1939) (section 16.85), see also San Francisco Administrative Code § 16.86.) It is the role of the board, the local administrative agency
and respondent in this case, to determine whether a particular member’s
condition falls within the meaning of this presumption, thereby entitling him
or her to the benefit of industrial disability
retirement. (San
Francisco Charter, § 12.102; San Francisco Charter,
Appendix A, § A8.518.)
In
this case, appellant’s application for industrial disability retirement was
referred to a hearing officer, who found the presumption
under section 16.85 rebutted by evidence that his condition was non-industrial
in nature. As such, the hearing officer recommended rejecting appellant’s
application for industrial disability retirement, a decision subsequently
adopted by the board in its entirety.
Like other administrative decisions, the board’s decision in this case
was subject to review by the California Superior Court, which was required to
exercise its independent judgment on the evidence presented to the hearing
officer and determine whether the weight of such evidence supported the
decision. (Code Civ. Proc.,
§ 1094.5; see also Fukuda v. City of
Angels (1999) 20 Cal.4th 805, 817 (Fukuda);
Strumsky v. San Diego County Employees’
Retirement Assn. (1974) 11 Cal.3d 28, 44-45 (Strumsky).) For purposes of
this first level of review, the party challenging the administrative decision –
here, appellant – has the burden of proving the agency’s decision and
underlying findings were in fact against the weight of the evidence. (Fukuda,
supra, 20 Cal.4th at p. 817; Breslin v. City and County of San Francisco (2007) 146 Cal.App.4th 1064,
1077-1078 (Breslin).) [“In the trial court, the [petitioners] had
the burden of proof to show that the [agency’s] decision was not supported by
the weight of the evidence — that is, that the decision was not supported by
the preponderance of the evidenceâ€].) In
doing so, the challenging party must overcome the “strong presumption of
correctness†that accompanies the agency’s findings. (Breslin, supra, 146 Cal.App.4th at p. 1077.) As the California Supreme Court
explains: “The findings of a board where
formal hearings are held should and do come before the courts with a strong
presumption in their favor based primarily on the [rebuttable] presumption
contained in section 1963, subsection 15, of the Code of Civil Procedure
[currently Evidence Code section 664] ‘That official duty has been regularly
performed.’ Obviously, considerable
weight should be given to the findings of experienced administrative bodies
made after a full and formal hearing, especially in cases involving technical
and scientific evidence.†(
p. 812; see also Mason v. Office of
Admin. Hearings (2001) 89 Cal.App.4th 1119, 1131 (Mason).) Moreover, given
this heightened burden, “rarely, if ever, will a board determination be
disturbed unless the petitioner is able to show a jurisdictional excess, a
serious error of law, or an abuse of discretion on the facts.†([Sipper
v. Urban (1943) 22 Cal.2d 138, 144] (conc. opn. of Schauer, J.).)’ (Fukuda
v. City of Angels, supra, 20 Cal.4th at p. 814.)†(Mason,
supra, 89 Cal.App.4th at p. 1131 & fn. 40.)
On
appeal, our task is to determine whether the trial court’s judgment is
supported by substantial evidence. (
p. 824; see also Yakov v. Board of Medical Examiners (1968) 68 Cal.2d 67, 72-73 [“the
question before this court turns upon whether the evidence reveals substantial
support, contradicted or uncontradicted, for the trial court’s conclusion that
the weight of the evidence does not [support the agency’s findings]â€].) We therefore must uphold the trial court’s
factual findings unless they “so lack evidentiary support that they are
unreasonable.†(Breslin, supra, 146 Cal.App.4th at p. 1078; see also
of Rancho Cucamonga v. Regional Water Quality Control Bd. (2006) 135 Cal.App.4th 1377, 1387.) Otherwise stated, we “may overturn the trial
court’s factual findings only if the evidence before the trial court is
insufficient as a matter of law to sustain those findings
. . . .†(
v. Zolin (1992) 11
Cal.App.4th 655, 659.) The trial
court’s legal conclusions, in turn, are subject to de novo review. (Breslin, supra, 146 Cal.App.4th at pp. 1076-1077. See also Topanga
Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506,
515 [whether an agency’s factual findings support its final decision is a legal
issue reviewed de novo].)
Turning now to the facts at hand, we begin with those
facts not in dispute: Appellant was a member of the police department with
assigned police duties who suffered from the heart condition cardiomyopathy
that surfaced during his years of service, thereby entitling him to the
presumption under section 16.85 that his condition arose out of and in the course
of employment. The fact remaining in
dispute, to the contrary, is whether substantial contrary evidence proved
appellant’s cardiomyopathy did not
arise out of and in the course of his employment. The relevant evidence is as follows.
The
fact finders that considered appellant’s application for industrial disability
retirement at the administrative and trial court levels found the presumption
under section 16.85 successfully rebutted by, among other evidence, the medical
opinions of Dr. Allems. As described
in detail above, Dr. Allems opined
appellant had experienced a “typical cardiomyopathy history over the
years of intermittent episodes of symptomatic supraventricular tachycardia
(including a couple of episodes of syncope) with documentation of a variety of
supraventricular and ventricular arrhythmias on physiological studies
progressing to eventual ventricular arrhythmic arrest/sudden death, prompting
installation of an automatic implanted cardiac defibrillator in July 2007. . .
[followed by] a second ventricular defibrillation arrest in March 2008.†Dr. Allems then concluded appellant’s
cardiomyopathy was not caused by any aspect of or event during his police
service; it was caused, “with reasonable medical
probability,†by a biological mechanism unrelated to his employment, and
“would have occurred at the same time . . . and
progressed at the same rate and requested the same degree of medical treatment
absent his being employed as a peace officer.â€
In
reaching these opinions, Dr. Allems evaluated appellant and undertook an
extensive review of his medical history, particularly for the period of 1983 to
early 2009. This medical history,
independently set forth in the record, is consistent with Dr. Allems’s
opinions. For
example, medical records from Drs. Rosenblatt, Moran and Borah reflect that
appellant was diagnosed with PSVT in 1990 and with cardiomyopathy in 1997 or
1998. However, appellant, whose
immediate family likewise had a history of high blood pressure, began
experiencing heart trouble as far back as the early 1980s. In particular, there was evidence appellant
experienced rapid heart beating and related symptoms in 1983 while exercising
and, again, in 1983 or 1984 when he passed out during a police vehicle
chase. Nonetheless, throughout the 1980s
and early to mid-1990s, appellant for the most part engaged in normal police
duties, rising to the rank of Inspector II despite occasional episodes of PSVT,
elevated blood pressure and cardiac arrhythmias. Then, in 1997, appellant began treatment with
cardiologist Dr. Rosenblatt, who definitively diagnosed cardiomyopathy in
June 1998 after first noting it as a possible diagnosis in 1997 (along with
probable hypertensive cardiovascular disease).
These diagnoses were based on, among other things, treadmill testing and
echocardiograms of appellant’s heart, which collectively ruled out coronary
artery disease and myocardial infarction.
Dr. Rosenblatt’s treatment of appellant for cardiomyopathy continued
throughout the late 1990s and 2000s, during which time his medical notes
indicated appellant’s continued reports of rapid heart beating, shortness of
breath, dizziness or “passing out†feelings, light-headedness, and heart
palpitations. These medical records from
appellant’s treating physicians, including his longtime cardiologist, are
consistent with Dr. Allems’s opinions regarding the natural,
non-industrial progression of appellant’s cardiomyopathy.
Appellant
denies this record amounts to credible evidence his cardiomyopathy pre-existed
or was otherwise unrelated to his police service. We disagree.
The medical opinions provided by Dr. Allems after his extensive
review of appellant’s medical condition and history met the board’s duty to
prove the nonexistence of the presumed fact that his cardiomyopathy was
work-related. Specifically,
Dr. Allems’s opinions constitute competent
evidence supporting a logical inference in the board’s favor that the origins
of appellant’s condition were distinct from his police service and, moreover,
that his condition’s worsening over the years was simply the predictable and
natural progression of cardiomyopathy (a “progressive diseaseâ€) during the
course of, yet unrelated to, his service.
(See Morgenroth v. Pacific
Med. Center, Inc. (1976) 54 Cal.App.3d 521, 530-531.) The board had no greater burden of
proof. (See Evid. Code, § 606 [“The effect of a presumption affecting the burden of proof
is to impose upon the party against whom it operates the burden of proof as to
the nonexistence of the presumed factâ€]; see also Duncan v. Department of Personnel Administration (2000) 77
Cal.App.4th 1166, 1174-1175 & fn. 6 [factual
findings must be sustained if supported by substantial evidence, which in some
cases may be in the form of a single witness’s testimony];
As
appellant is quick to point out, there is other evidence in the record
suggesting a link between his heart condition and police service. For example, in February 1998,
Dr. O’Brien acknowledged, similar to Dr. Allems, that appellant’s
condition could have developed as “an idiopathic dilated cardiomyopathy†which
then led to “symptoms which began in [the] 1980s.†However, Dr. O’Brien ultimately
concluded that, “[w]hatever the cause of Mr. Kirk’s cardiomyopathy, it
certainly developed during the years he was a San Francisco police officer†and
that “[t]here are no factors, at least in my experience, that successfully
rebut [the California Presumption Statute].â€
Similarly, in
July 1998, Dr. Anderson
evaluated appellant for workers’ compensation purposes and agreed his
cardiomyopathy came within the statutory presumption given that there was “no
indication that he would have developed symptomatic coronary disease at this
time absent his work.†Whatever the
weight of this evidence (which we need not decide), contrary evidence does not
require reversal, particularly in light of the great deference accorded lower
court findings in writ proceedings.
(E.g., Fukuda, supra, 20 Cal.4th at p. 812; compare
reasonably susceptible of an interpretation that plaintiff’s myocardial
infarction [that occurred in cold weather while on a private ski trip] is the
cause of his present disability, it matters not that the same evidence could
support a contrary inference that the cause of disability was plaintiff’s
predisposition to coronary artery spasmsâ€].)
As such, this evidence provides no grounds for setting aside the
trial court’s conclusion that Dr. Allems’s opinions provide substantial
“evidence to the contrary†for purposes of rebutting the section 16.85
presumption.
title="">[6] (See § 16.85 [the presumption
that a police officer’s heart trouble that manifests during his or her
employment arises out of and in the course of that employment is rebutted by
“evidence to the contraryâ€].)
In so
concluding, we briefly address why appellant’s authority, Jackson v. W.C.A.B. (2005) 133 Cal.App.4th 965 (
holding. In Jackson, the court was called upon to
consider the application of the heart trouble presumption for correctional
officers contained in Labor Code section 3212.2. (Jackson,
supra, 133 Cal.App.4th at pp. 971-972.)
Similar to our case, the officer’s employer sought to rebut this
statutory presumption with evidence his heart trouble was attributable to a
preexisting disease unrelated to his employment. While the administrative agency accepted the
employer’s evidentiary showing, the reviewing court concluded it was
insufficient as a matter of law: “[S]ubstantial evidence does not support the
[board’s] finding that [the officer’s] heart trouble was unrelated to his job.
The only evidence on this subject was presented by Dr. Ogrod in his
report. There, the doctor conclusively stated ‘there is nothing specific about
the patient’s occupation that would lead us to conclude that his viral
infection and the secondary myocarditis was occupationally related.’ The doctor
also stated, ‘[t]here would be nothing in this sequence of events that would be
linked to a specific occupation or to suggest that his occupation placed
him at greater risk for developing this set of problems.’ Simply pointing
out that there is nothing specific about his job that caused his heart attack
or put him at a greater risk for this condition does not satisfy the
[employer’s] burden to prove that a contemporaneous non-work-related event was
the sole cause of the heart attack in question. Moreover, this ‘evidence’ does
not demonstrate the heart trouble here was attributable to a preexisting
nonindustrial disease. Stated another way, there
was no evidence in the record that [the officer’s] respiratory illness was not
related to his job as a correctional officer. The conclusion that there is
‘no medical basis that would justify linking this patient’s acute medical
problems to his occupation’ further failed to establish that any
non-work-related event was the sole cause of this heart attack or that this
heart disease was the result of a preexisting disease unrelated to his job.
Without any such evidence to controvert the presumption of Labor Code section
3212.2, that presumption controls.†(
972 [italics added].)
interpreting and applying a statutory heart presumption under the workers’
compensation system rather than the retirement system, is distinguishable on
its facts. There, as the court held, the
examining physician, Dr. Ogrod, presented no medical evidence the
employee’s condition was non-industrial in nature; Dr. Ogrod merely
pointed out the absence of any evidence
that the condition was related to his occupation. (Jackson, supra, 133
Cal.App.4th at p. 972 [Dr. Ogrod concluded there was “no medical
basis that would justify linking [the employee’s] acute medical problems to his
occupationâ€].) Here, to the contrary,
Dr. Allems gave a non-industrial medical explanation for the cause of appellant’s
cardiomyopathy – to wit, that he “has had symptomatic supraventricular and
ventricular arrhythmias, dating back to the 1980s, with eventual ventricular
arrhythmic arrests . . . .â€
Dr. Allems then went on to explain “[t]his sequence of events
reflects the natural history of [appellant’s] underlying cardiomyopathy,†which
“would have occurred at the same time . . . and progressed at the same rate and
requested the same degree of medical treatment absent his [police
service]†Thus, contrary to
simply point out the lack of evidence that the applicant’s condition was
industrial. Rather, Dr. Allems
provided factually-supported medical opinions demonstrating the non-industrial
nature and non-industrial progression of appellant’s condition, thereby
successfully rebutting the applicable presumption under section 16.85. Accordingly, Jackson does not command reversal of our judgment.
The
judgment is affirmed. Costs are awarded
to respondent.
_________________________
Jenkins,
J.
We concur:
_________________________
Pollak, Acting P. J.
_________________________
Siggins, J.
name="_ftn1" title="">[1] Appellant was first promoted to
Inspector in 1984 or 1985.
In 2005, he began another
light-duty-assignment, reviewing arrest reports to determine appropriate
follow-up, an assignment he held until 2008.
