[00:00:00] Speaker 01: Next argument cases number 21, 1452, Afalayan against the Department of Justice. [00:00:07] Speaker 01: Mr. Burke. [00:00:11] Speaker 00: May I please the court. [00:00:12] Speaker 00: This case involves the denial of benefits for Ms. [00:00:15] Speaker 00: Lisa Afalayan due to the death of her husband while trying to be a border patrol officer. [00:00:20] Speaker 00: The government's denial of benefits was an error for three reasons. [00:00:23] Speaker 00: First, the government erred by improperly considering Agent F. Alliance sickle cell trait as a cause of his death. [00:00:30] Speaker 00: Second, the agency regulations impermissibly limit recovery to a single direct and proximate cause of death. [00:00:37] Speaker 00: And third, the evidence in the case does not provide substantial evidence to support the denial. [00:00:44] Speaker 00: First, the agency erred by considering sickle cell trait as a cause of Agent F. Alliance death. [00:00:49] Speaker 03: So what do you make out of the, I guess it's the 2012 amendment, maybe half the date long, adding heart attack and stroke as a ground for allowing benefits? [00:01:00] Speaker 03: Doesn't that suggest that the Congress didn't want to make other pre-existing conditions the ground for recovery? [00:01:16] Speaker 00: No, Your Honor. [00:01:17] Speaker 00: The 2012 amendment made clear that Congress approved of the exclusion for stress and strain and yet found that in particular cases when stress and strain leads to a heart attack or a stroke. [00:01:28] Speaker 03: No, but I don't think you're really addressing my question. [00:01:31] Speaker 03: My question is 2012 [00:01:32] Speaker 03: They say heart attack and stroke is going to qualify. [00:01:35] Speaker 03: In other words, we're not going to have a situation where we determine whether heart attack is the cause or climactic conditions were the cause or whatever. [00:01:47] Speaker 03: So they took this out. [00:01:49] Speaker 03: They took out the situation where pre-existing conditions could have contributed to the death. [00:01:57] Speaker 03: And they've said, okay, we're not going to allow those to be considered. [00:02:00] Speaker 03: Doesn't that suggest, the amendment suggests, that other pre-existing conditions are going to be considered in the causation analysis? [00:02:10] Speaker 00: Your Honor, potentially if those pre-existing conditions would be occupational diseases under the regulations. [00:02:15] Speaker 00: I'm unaware of a situation where an officer [00:02:18] Speaker 00: suffered from a heart attack or stroke due to pre-existing conditions that would not already be excluded under the statute that would become compensable under the 2012 Act. [00:02:28] Speaker 03: It's my understanding that under the 2012 Act... Well, I mean, you could have a situation almost exactly like this one in which there was a heart attack after a training exercise which was exacerbated by climactic conditions. [00:02:45] Speaker 03: And yet Congress said, okay, we're not going to, with respect to heart attack and stroke, engage in that kind of causation analysis. [00:02:56] Speaker 03: Doesn't that sort of suggest that maybe with respect to other pre-existing conditions that there is going to be that causation analysis? [00:03:05] Speaker 00: Your Honor, the 2012 statute should be read in the context for which it was passed. [00:03:09] Speaker 00: There was a problem recognized that many firefighters going into burning buildings and fully protected from the smoke and other hazards were dying because of the stress and strain that they were suffering while going into those buildings. [00:03:23] Speaker 00: Congress determined that these officers, their families should be compensated for their deaths despite the fact that these officers were frequently dying as a result of a heart attack or stroke brought on by stress or strain. [00:03:35] Speaker 00: And so Congress passed this act in order to bring those officers within the meaning of the statute. [00:03:42] Speaker 00: So I do not believe that that statute endorses. [00:03:44] Speaker 04: Also some of those cases that Congress was trying to address previously, um, they would have to inquiry, have to have an inquiry into whether the heart attack was due to the line of duty or due to some or physical health conditions. [00:04:01] Speaker 04: And so that's what Congress was trying to get at there, that you don't have to go through this complicated analysis of whether the proximate cause was the person's, you know, [00:04:14] Speaker 04: like history of smoking, for instance, or it was actually caused by the line of duty. [00:04:20] Speaker 00: Your Honor, I think the Morrow case is one of those cases where in that case the officer had smoke inhalation and then a number of weeks later died. [00:04:28] Speaker 04: I don't mean smoke inhalation. [00:04:30] Speaker 04: I mean poor health. [00:04:31] Speaker 04: I mean, I didn't go back and reread these cases, but I seem to recall at some point quite a while ago that that was some of the disputes that when people had heart attacks, [00:04:42] Speaker 04: or strokes that there was a dispute about whether the heart attack was caused by the strain of line of duty and the like, or it was just because they had pre-existing conditions that would put them at risk for a heart attack. [00:04:57] Speaker 04: And I thought that's what this legislation was intended to address. [00:05:01] Speaker 04: And that would be the same thing here, wouldn't it? [00:05:03] Speaker 04: That this condition puts him at an increased risk, but Congress chose not to address this one yet. [00:05:11] Speaker 00: Well, Your Honor, one main distinction between this case and the case where someone is smoking is that sickle cell trait is a benign trait. [00:05:17] Speaker 00: So yes, it put him at increased risk, but it could not cause his death. [00:05:23] Speaker 04: I mean, that's a fat question, whether the sickle cell condition here. [00:05:28] Speaker 04: I mean, if we're going to get there, then we have the opinions of at least a couple doctors that his sickle cell condition triggered a sickle cell crisis that was the primary cause of his death. [00:05:40] Speaker 00: Your Honor, there's no distinction between his sickle cell trait causing his death and an allergy causing an allergic reaction. [00:05:47] Speaker 00: And we have the case, the sickle cell trait, the evidence in the record is that it's a benign condition that has no impact on individuals' lives. [00:05:55] Speaker 00: The one exception is that it makes them more susceptible to adverse environmental conditions. [00:05:59] Speaker 03: Yeah, but we don't have any cases on that. [00:06:01] Speaker 03: There was a bee sting case, for example, at the agency, but we haven't said that an allergic condition can't be considered in the causation analysis under those circumstances, right? [00:06:17] Speaker 00: No, Your Honor, but the agency has. [00:06:19] Speaker 00: And if the agency is going to change its position here, [00:06:22] Speaker 00: and now say that these types of benign personal traits can be considered, it needs to explain why. [00:06:27] Speaker 00: And it's failure to explain why in this case. [00:06:28] Speaker 03: Well, that's the Beesting case didn't say. [00:06:30] Speaker 03: I mean, the Beesting case is very unclear as to what it's saying. [00:06:34] Speaker 03: It's quite brief. [00:06:37] Speaker 03: And it doesn't say preexisting conditions are irrelevant. [00:06:42] Speaker 00: No, Your Honor. [00:06:43] Speaker 00: However, we have the obvious parallel of the allergy in that case, and it was never even mentioned as a potential cause. [00:06:49] Speaker 00: The agency also, prior to the statute passed by Congress, issued guidance on COVID-19, saying that when an officer who had COVID-19 died, unless there was convincing evidence of another separate cause of death, they would presume that that death was caused by COVID-19. [00:07:07] Speaker 00: And we know that COVID-19, one of the main contributors to death in those cases, are benign traits like age, [00:07:13] Speaker 00: or other comorbidities like obesity, diabetes, or otherwise. [00:07:19] Speaker 04: I don't understand how this helped you. [00:07:21] Speaker 04: It seems to suggest that anytime Congress understands that there's a particular situation that requires a different rule rather than the default rule, they enact legislation [00:07:32] Speaker 04: to create that particular rule, but they haven't yet done that for sickle cell. [00:07:37] Speaker 04: I don't mean to be dismissive of this, this is a very tragic situation and I understand the issues here, but it doesn't seem that [00:07:49] Speaker 04: that it's impermissible for the agency to consider this under their regulation as one of the factors. [00:07:56] Speaker 04: And if they can't consider it as one of the factors, they get to determine whether it was the stress of the heat and climactic conditions was the primary cause or the sickle cell crisis was the primary cause. [00:08:09] Speaker 00: Your Honor, the first thing I would say is that the agency acted here before Congress did. [00:08:13] Speaker 00: So they had their own understanding of this current state of the law before Congress passed that law. [00:08:18] Speaker 00: Which one? [00:08:18] Speaker 00: The COVID-19. [00:08:21] Speaker 04: Yeah, but that's just, I mean, they've already passed even before this, though, the heart attack and stroke one, which was singling out specific events. [00:08:31] Speaker 04: What I'm suggesting to you is not relying only on the COVID, but that Congress is aware that sometimes these rules need to be changed to recognize specific situations. [00:08:44] Speaker 04: You know, there were instances prior to the heart attack rule where people had heart attacks and a lot of duty and couldn't get compensation and Congress addressed that. [00:08:52] Speaker 04: Maybe they need to do that for sickle cell too. [00:08:56] Speaker 00: Your Honor, they certainly could pass a law making it clear. [00:08:58] Speaker 00: However, in those cases prior to the passage of the law in 2012, when the agency denied those claims, it was in the cases that we have here [00:09:08] Speaker 00: It was because the officer died as the result of stress or strain or because of heart disease, which would qualify as an occupational disease. [00:09:15] Speaker 00: The agency itself has created two carve-outs from the definition of injury for things it believes could potentially cause a death and yet would not be compensable. [00:09:25] Speaker 00: And those are stress or strain, as you mentioned, and also occupational diseases. [00:09:30] Speaker 00: The government has not even contended in this case that sickle cell trait is an occupational disease. [00:09:35] Speaker 00: And that's because it is a benign trait. [00:09:37] Speaker 00: there is no law enforcement agency in the country that would bar someone from serving because they have sickle cell trait. [00:09:44] Speaker 00: He himself was declared medically fit before joining the border patrol. [00:09:49] Speaker 00: And so it is our inclination that the agency's choice to exclude these two particular factors from the definition of injury means that other benign personal traits cannot be considered. [00:10:00] Speaker 00: It would make no sense for the agency to deny a claim because when officers age, [00:10:04] Speaker 00: And similarly, it makes no sense to deny a claim because of an officer's sickle cell trait. [00:10:08] Speaker 04: Well, except if that sickle cell trait is what caused the death as opposed to the on-duty conduct or the on-duty whatever the circumstances sounding on duty were. [00:10:21] Speaker 04: I mean, isn't that the whole point is even if this occurred during the line of duty, the second step is to determine what is the primary proximate cause and if [00:10:33] Speaker 04: If sickle cell was the primary approximate cause, then you don't get compensation. [00:10:39] Speaker 00: Well, in our position that sickle cell trait can't be the primary cause because it is a benign personal trait. [00:10:44] Speaker 04: Why can't it be if the doctors say this is what caused his death? [00:10:48] Speaker 04: Well, the doctors identified it as a factor in the same way that... I don't want to quibble about what the evidence is, so if you don't agree with it, just assume that this is hypothetical. [00:10:57] Speaker 04: But some of the doctors said this was primarily due to a sickle cell crisis. [00:11:03] Speaker 04: And so let's just assume that's a fact, that it was the primary cause of his death. [00:11:09] Speaker 00: Well, a sickle cell crisis, yes, Your Honor, but that is not saying that it was primarily caused by his sickle cell trait. [00:11:14] Speaker 00: This is a condition where the sickle cell crisis or whatever the cause is. [00:11:19] Speaker 04: Okay, but now you're quibbling, I think, about what I don't want to argue about. [00:11:22] Speaker 04: What I want to understand is if this death was due to the sickle cell crisis, which doesn't have anything to do with the line of duty, then why does he get compensation? [00:11:32] Speaker 00: He gets compensation because the sickle cell crisis was caused by climatic conditions, exercise, and the fact that he had the sickle cell trade plankton contributing factor. [00:11:42] Speaker 00: The question is what caused the sickle cell crisis. [00:11:45] Speaker 00: The sickle cell crisis itself is not something that he had prior to training in New Mexico. [00:11:51] Speaker 00: The sickle cell crisis was something that was brought on during this final training run in the high altitude, high heat, and low humidity in the New Mexico desert. [00:12:00] Speaker 00: And so the question is, what brought on that sickle cell crisis? [00:12:03] Speaker 00: And here, Dr. Sinha in particular said that the viral illness, physical exertion, hot climate, dehydration, and altitude exposure were the factors that brought on that sickle cell crisis. [00:12:14] Speaker 03: Well, isn't it the case that no doctor said which of the two things, that is, the sickle cell trait or the climactic conditions, was a primary cause? [00:12:28] Speaker 03: And under the regulations, you would have to have evidence that the primary cause was climactic conditions, and you just didn't have that evidence. [00:12:37] Speaker 03: I mean, I understand your argument that you shouldn't take into account the single cell trait. [00:12:41] Speaker 03: Let's put that aside for a moment. [00:12:43] Speaker 03: It is the case, is it not, that on this record, there is no [00:12:51] Speaker 03: physician who's saying that the climactic conditions were the primary cause of this, right? [00:12:59] Speaker 00: No doctor used those words. [00:13:00] Speaker 00: However, Dr. Malysnik Polchan did say that [00:13:03] Speaker 00: Agent Afalion with a sickle cell trait had been engaged in heavy physical exercise throughout his life prior to this training, and that the only new factors that were introduced into his life that led to this sickle cell crisis and death were the altitude, hot climate, and dry conditions in Artesia, New Mexico. [00:13:20] Speaker 00: So although she did not use those words, she did expressly say that the only new factors that brought about Agent Afalion's death in this case [00:13:28] Speaker 00: were the altitude, heat, and low humidity. [00:13:32] Speaker 03: Okay, but I guess what I'm saying is putting aside your pre-existing condition argument that there's nothing wrong with the decision here. [00:13:40] Speaker 03: The regulation says climactic conditions or whatever else it is has to be the primary cause, and there's no evidence here that that was the primary cause. [00:13:49] Speaker 00: Well, there's certainly evidence that climatic conditions were a direct and proximate cause. [00:13:53] Speaker 00: And our second argument in this case. [00:13:55] Speaker 03: Sure, but of equal weight, apparently, with the sickle cell trait. [00:14:02] Speaker 00: Well, Your Honor, we do have an argument that the regulations impermissibly limit recovery to only a single direct and proximate cause, whereas the statute, in using the phrase direct and proximate result of death, incorporated the legal understanding that there may be multiple direct and proximate causes. [00:14:19] Speaker 00: So we think, at a minimum, the climatic conditions were a direct and proximate cause of agent-affiliance death, even if you find that they were not the direct and proximate cause. [00:14:28] Speaker 03: But the statute doesn't say multiple cause. [00:14:32] Speaker 03: It says the cause. [00:14:33] Speaker 00: It says the result, Your Honor. [00:14:35] Speaker 00: It says the direct and proximate result. [00:14:37] Speaker 00: And that is the only result that the statute is concerned about in that case, in that language. [00:14:44] Speaker 00: Your Honor, I'd like to reserve the rest of my time for rebuttal. [00:14:47] Speaker 01: Yes, no. [00:14:47] Speaker 01: You have your rebuttal time. [00:14:49] Speaker 00: Thank you, Your Honor. [00:14:52] Speaker 01: Mr. Long. [00:14:55] Speaker 01: Mr. Long, let me ask you what really has been bothering me. [00:14:58] Speaker 01: Let's just assume, as a hypothetical, that the person who dies does not have the sickle cell trait or any other cause of death. [00:15:11] Speaker 01: And yet, the same thing happens. [00:15:13] Speaker 01: He goes on the final mile and a half run. [00:15:17] Speaker 01: He drops dead. [00:15:20] Speaker 01: there would be no doubt would there, but that this would be compensable. [00:15:25] Speaker 02: I don't think that's true, Your Honor. [00:15:27] Speaker 02: And the reason is that the inquiry is what has been shown to be the cause of death, or the cause of death and the cause of injury that led to death. [00:15:39] Speaker 02: And so there would need to be evidence in the record for BJA's director to consider showing that climatic conditions were the direct and proximate cause of the condition that led to death. [00:15:50] Speaker 02: And so even if you take away the sickle cell trait in this instance or some other existing condition, then we need to show how the climatic conditions on that particular day led to injury and death. [00:16:05] Speaker 02: And so in this instance, we know that his whole training class took a run. [00:16:09] Speaker 02: Many completed without incidents. [00:16:11] Speaker 02: Tragically, Agent F. Land did not. [00:16:14] Speaker 02: we need to understand what happened with respect to him or with respect to someone who did not have the sickle cell trait that created this condition. [00:16:22] Speaker 02: And the requirement is showing by reponderance of the evidence, by the claimant of what the reasoning was. [00:16:29] Speaker 02: And here, the evidence simply did not add up to demonstrating that climatic conditions or some other external force was the significant factor in leading to the sickle cell crisis that then, or exhortation of Rambo [00:16:43] Speaker 02: myeliosis that then led to Agent Efilian's death. [00:16:48] Speaker 02: Without that showing, the statute simply does not provide recovery. [00:16:56] Speaker 03: had a situation in which someone died from heat stroke as a result in part from climactic conditions. [00:17:06] Speaker 03: And the evidence is the person was not overweight, but that if the person had weighed 40 pounds less, he would not have died. [00:17:15] Speaker 03: from this, it was a combination of his weight and the climactic conditions. [00:17:21] Speaker 03: I mean, is the government, under those circumstances, entitled to argue that the fact that this person weighed 40 pounds more was an equal cause of his death and that there can't be any recovery? [00:17:34] Speaker 03: I mean, the pre-existing condition thing is sort of amorphous. [00:17:42] Speaker 03: How do you come out on my hypothetical? [00:17:47] Speaker 02: Well, Your Honor, I think in that hypothetical, you have, let's assume that the doctors have posited what you're talking about. [00:17:56] Speaker 02: So if the medical evidence then said that the substantial factor, that the climatic conditions and the court in Dicta and Juno referred to unusually adverse climatic conditions, whatever the standard may be for that, that those climatic conditions were [00:18:13] Speaker 02: at were a greater force than everything else acting together. [00:18:17] Speaker 02: That's from the substantial factor definition in 20 CFR 32.3. [00:18:23] Speaker 02: If those climatic conditions were the greatest factor coming together. [00:18:27] Speaker 03: I'm assuming the doctors say it's the 40 pounds extra weight and the climatic conditions in combination caused the death and we can't say which of those two factors was the primary factor. [00:18:40] Speaker 02: I think then we're in this situation, Your Honor, in where... A recovery. [00:18:44] Speaker 02: Yes, where the doctors have medical evidence presented in the record doesn't identify an external force as the... So no recovery. [00:18:54] Speaker 03: Right. [00:18:55] Speaker 03: That's troubling to me because [00:18:57] Speaker 03: It makes it sound as though almost any condition that in some way could contribute to a death is going to perhaps enter into the calculus and deny recovery. [00:19:08] Speaker 03: And I'm not sure that I think that that's what Congress intended. [00:19:13] Speaker 02: Well, I mean, if we look at the court addressed the definition of personal injury in the Yanukovic decision, [00:19:20] Speaker 02: And in that case, the court noted that the Congress's focus was some sort of physical assault or trauma to the body. [00:19:31] Speaker 02: So that is what the act is directed at. [00:19:34] Speaker 02: And so the inquiry that I'm describing to your hypothetical focuses on what the external force was. [00:19:42] Speaker 02: What was the physical trauma leading to the bodily condition? [00:19:47] Speaker 02: We have medical evidence that identifies sickle cell trait. [00:19:50] Speaker 02: It also identifies dehydration, which is not a climatic condition. [00:19:53] Speaker 02: It identifies physical exertion, which could fall under the exception for physical stress or strain, the exception of injury. [00:20:00] Speaker 02: There's a number of factors that have been identified, and the medical evidence doesn't demonstrate [00:20:06] Speaker 02: how those interact. [00:20:08] Speaker 02: And to the contrary, Dr. Sina said that these other factors did contribute to a significant extent. [00:20:14] Speaker 03: And the other medical professionals didn't demonstrate that the climatic conditions... It sounds like you're saying if you could find one other person or one group of people who would have survived these climatic conditions, then there can't be any recovery. [00:20:31] Speaker 03: It just doesn't sound right. [00:20:32] Speaker 03: There's got to be some distinction among various pre-existing conditions. [00:20:37] Speaker 03: People are different and they react differently even within the realm of normal physical attributes. [00:20:44] Speaker 03: Some people are going to die from heat stroke under those circumstances and some people aren't. [00:20:50] Speaker 03: It can't be that any [00:20:53] Speaker 03: showing that there's some group of people who wouldn't have been affected by this could lead to denial of recovery for people within the normal range who would have died, who did die. [00:21:11] Speaker 02: That's not the argument we're making, Your Honor. [00:21:14] Speaker 02: We're not saying that the fact that some might have not been affected by this. [00:21:20] Speaker 02: Come on, BJ's director [00:21:23] Speaker 02: his decision was based on the medical evidence in the record, which was focused on analysis deriving mostly from agent ethyl ions. [00:21:31] Speaker 03: But what I'm asking is that there are all sorts of pre-existing conditions. [00:21:35] Speaker 03: How do we distinguish those that are relevant in determining causation and those that aren't? [00:21:40] Speaker 03: That's what I'm asking about, and I don't hear an answer so far as to how I can make that distinction. [00:21:47] Speaker 02: Well, I suppose that the flip side of it, Your Honor, I would submit is, well then, [00:21:52] Speaker 02: If the inquiry were otherwise, then BJA would not be able to analyze the full scope of potential causation and the various factors that might contribute. [00:22:01] Speaker 02: And so we have sickle cell trait. [00:22:04] Speaker 02: There could be obesity. [00:22:06] Speaker 02: There could be a number of physical traits, heart conditions prior to the amendment of the act. [00:22:13] Speaker 02: that could be factors and all of that should be within BJA's factual inquiry. [00:22:18] Speaker 03: If a pre-existing condition would have disqualified the person from employment and the person was nonetheless hired, I can see an argument there that you have to take account of that pre-existing condition. [00:22:32] Speaker 03: condition as being a causative factor. [00:22:35] Speaker 03: But here, you agree, everybody seems to agree, the fact that you have a sickle cell trait doesn't bar you from being employed as a law enforcement officer, right? [00:22:46] Speaker 02: Yes, that's right. [00:22:48] Speaker 02: But I don't see the, even if we were to remove sickle cell trait from these medical opinions, they don't state that external forces, climatic conditions, in this FLAX formulation, [00:23:02] Speaker 02: worthy substantial factor in aginephalaeans' deaths. [00:23:06] Speaker 02: So even if we take that away, and that is, I suppose, to some extent hypothetical because the doctors, at least three of the doctors do identify sickle cell trait, but taking it out, we still wouldn't know. [00:23:20] Speaker 02: We don't have any indication of what really, how these climatic conditions affected aginephalaean in any specific way. [00:23:27] Speaker 02: There's no linkage there. [00:23:29] Speaker 03: And I note that in talking about climatic conditions, the regulatory... Isn't it pretty clear that if you took out, you didn't consider the sickle cell trait, climatic conditions would have been the cause? [00:23:41] Speaker 02: I think that, I believe that Dr. Milucinich's, Polchon's [00:23:51] Speaker 02: opinion of excitational rabodimylosis is not primarily predicated on the presence of the sickle cell trait. [00:24:02] Speaker 02: I believe that her focus is that it can arise from strenuous physical exercise. [00:24:10] Speaker 02: That's what she pointed to as the causation there in her opinion. [00:24:17] Speaker 02: I agree that we don't know what the opinions would have been in the absence of identification of sickle cell trait. [00:24:25] Speaker 02: But again, the burden is on the petitioner to demonstrate how these factors came together. [00:24:31] Speaker 02: And the evidence in the record doesn't make that showing. [00:24:35] Speaker 04: Why doesn't the regulation provide a way for the agency to consider whether a condition [00:24:46] Speaker 04: contributes enough in addition to the heat stroke. [00:24:50] Speaker 04: I mean, it seems like, you know, you look at part one is, was the factor alone sufficient to cause the death? [00:25:00] Speaker 04: And in these pre-existing condition cases, that's probably going to be really hard to prove. [00:25:05] Speaker 04: But the second one is no other factors [00:25:09] Speaker 04: contributed to the death as so great of a degree. [00:25:13] Speaker 04: So if you look at the fact that there was a contributing factor, but that that couldn't have contributed as great of a degree as the external injury, then they would achieve compensation. [00:25:27] Speaker 04: So if the doctor's evidence here had been, well, sure, he had the sickle cell condition [00:25:34] Speaker 04: But it's clear that that wouldn't have caused the death. [00:25:38] Speaker 04: What caused the death is the heat stroke. [00:25:40] Speaker 04: Even with this condition that put him slightly at risk, we'd be in a different place, wouldn't we? [00:25:46] Speaker 02: I think that that's probably true. [00:25:48] Speaker 02: I think that it depends on this phrasing, but yes, I think that the general gist is right. [00:25:52] Speaker 02: And well, I think then that we go back then to the purpose of the act and the language of the act and the focus on these external forces. [00:26:02] Speaker 04: And the point that the court decided... So in Judge Dyke's hypothetical, if the person could have survived if he'd been 40 pounds less, even though he was at the end of a healthy weight range. [00:26:17] Speaker 04: But the evidence shows that he possibly or would have survived if it's still the evidence is that the climactic conditions were the met clause, too, to a greater degree. [00:26:32] Speaker 04: then the fact that he could have survived at 40 pounds less wouldn't prevent compensation, would it? [00:26:39] Speaker 02: The fact that he could have survived if he weighs 40 pounds less, I think that's... Well, if the doctor comes in, I know I'm changing his hypothetical, so... [00:26:49] Speaker 04: A little bit, but if the doctor comes in and says, look, heat conditions were the likely cause here, although the fact that he was 40 pounds overweight could have led to this, but I still think heat stroke is the primary cause. [00:27:07] Speaker 04: That would qualify under two, even the fact that there is another cause that could have contributed. [00:27:13] Speaker 04: It doesn't have to be the... In other words, subpart two allows for pre-existing conditions to contribute as long as it's... [00:27:23] Speaker 04: not one of the factors that contributed to as great of a degree as the external event. [00:27:28] Speaker 02: The chromatic conditions. [00:27:29] Speaker 02: That's correct. [00:27:30] Speaker 04: But we don't have that evidence here is the problem. [00:27:32] Speaker 02: Right. [00:27:33] Speaker 02: It is a mix of evidence that does not tell us exactly how or that exact proportion in a way that helps us track this substantial factor definition. [00:27:42] Speaker 02: That's right. [00:27:47] Speaker 02: And so for that reason, we've talked a bit about the medical evidence. [00:27:54] Speaker 02: We believe the substantial evidence supports the director's determination here and that the director followed BJ's regulations in performing the analysis. [00:28:04] Speaker 02: Just to talk about the question of whether or not other factors should be considered in a general sense with respect to the statute, as I mentioned before, in addition to these [00:28:15] Speaker 02: later enactment of the exceptions for heart attack and stroke. [00:28:19] Speaker 02: We also have the point that the regulatory definition of injury has for decades now identified external forces as the focus of the inquiry. [00:28:28] Speaker 02: And so you would need to look at external forces if you weren't also considering internal conditions [00:28:35] Speaker 02: potential factors other than external forces. [00:28:37] Speaker 02: So that long-standing regulatory definition helps highlight the point that the inquiry is not limited to external factors. [00:28:45] Speaker 02: And then finally, to touch on one other point that my friend was, I think, going to make is with respect to the Act [00:28:56] Speaker 02: does not permit multiple direct and proximate causes. [00:28:59] Speaker 02: The act speaks of a death as the direct and proximate cause of a personal injury. [00:29:05] Speaker 02: So death is compensable where it is the direct and proximate result of an injury. [00:29:14] Speaker 02: That suggests that there don't necessarily need to be multiple direct and proximate causes. [00:29:20] Speaker 02: And as to the causation of injury, as I've said, this is a long-standing regulatory definition that has focused on the substantial factor inquiry. [00:29:30] Speaker 02: And it is completely consistent with the statute itself. [00:29:35] Speaker 02: And if there are no further questions, thank you. [00:29:40] Speaker 01: Thank you. [00:29:41] Speaker 01: Mr. Burke. [00:29:43] Speaker 00: Thank you, Your Honor. [00:29:44] Speaker 00: Just a couple of points. [00:29:46] Speaker 00: First, the government makes the argument that in this case there was a mix of factors and so Ms. [00:29:52] Speaker 00: Appleline failed to meet her burden. [00:29:54] Speaker 00: But in this case, there was not a lack of evidence in the record as to what caused Agent Alpha Lion's death. [00:29:58] Speaker 00: We have the report of four doctors. [00:30:00] Speaker 00: We have the testimony from multiple fellow officers. [00:30:03] Speaker 00: And we have an evidentiary hearing. [00:30:05] Speaker 03: Under the government. [00:30:07] Speaker 03: The record shows that the doctors were unwilling to say that climactic conditions or sickle cell trait, that one of those was the primary cause. [00:30:19] Speaker 03: basically said it wouldn't happen unless you had the confluence of the two of them, and you can't say which one is the primary cause. [00:30:26] Speaker 03: That's the record, as I understand it. [00:30:29] Speaker 00: Yes, Your Honor. [00:30:30] Speaker 00: My only point is that in this case, under the government's position, there was no direct and proximate cause of Agent F. Alliance death. [00:30:37] Speaker 00: And that simply doesn't make sense. [00:30:39] Speaker 00: Something caused his death. [00:30:40] Speaker 00: Something [00:30:41] Speaker 00: was the direct and proximate cause of his death. [00:30:43] Speaker 03: Multiple causes. [00:30:44] Speaker 03: But the trouble, your problem is that where you have multiple causes and you can't single one out as the primary cause, then the claimant loses. [00:30:55] Speaker 00: Your Honor, my position is that the director, as a fact-finder in this case, had enough evidence to make a determination. [00:31:01] Speaker 00: He could have determined that, under his reading, single cell trait was the direct and proximate cause. [00:31:05] Speaker 03: He could have determined that... Sure, but wasn't he entitled to say, I can't tell which is the primary cause, therefore you lose? [00:31:11] Speaker 00: Well, in that case, there simply is no direct and proximate cause. [00:31:14] Speaker 04: But you're honored to move on. [00:31:15] Speaker 04: Well, there's multiple proximate causes. [00:31:17] Speaker 04: I mean, you yourself recognize that in certain contexts, you can get liability for multiple proximate causes. [00:31:24] Speaker 04: And I know you have that argument here on the legal side too, but assume we disagree with you. [00:31:28] Speaker 04: But again, the doctors have said this constellation of factors could have caused the death. [00:31:36] Speaker 04: But the director doesn't have to pick out which one [00:31:40] Speaker 04: caused it to deny you, it's your burden to show that it was a line of duty-connected injury. [00:31:47] Speaker 00: Yes, Ron, and we believe that burden was satisfied. [00:31:51] Speaker 04: But again, the evidence doesn't support that. [00:31:54] Speaker 04: If we're talking about evidence and we review the director's decision for substantial evidence, then the evidence from the doctors doesn't really single out [00:32:04] Speaker 04: the climactic conditions of the cause of death. [00:32:07] Speaker 04: It suggests that climactic conditions in possible combination with the sickle cell crisis. [00:32:12] Speaker 04: I don't know if there's anything else in there. [00:32:15] Speaker 04: I mean, that's, you know, unfortunately, there's a higher standard here for you to meet under these regulations. [00:32:21] Speaker 04: And you have to show that it wasn't something, or you have to show that it was primarily the [00:32:27] Speaker 04: in duty injury that caused it and not something else. [00:32:31] Speaker 00: Yes, Your Honor. [00:32:32] Speaker 00: And I would merely point to the fact that Dr. Natarajan, who performed the autopsy and was the only doctor to examine his body, did find that it was heat illness. [00:32:39] Speaker 00: But I'd like to move on. [00:32:41] Speaker 00: Judge Dyke, you asked the government where the line would be drawn, what pre-existing conditions may be considered, and what may not. [00:32:47] Speaker 00: And in our position, the government's regulations by carving out occupational diseases answer that question. [00:32:54] Speaker 00: Your point is well taken, that if sickle cell trait was a reason to deny Agent F a lion membership or candidacy for the border patrol, then certainly him having that might be a reason to deny him benefits, because he would have hidden it or lied about it or in some other way have been negligent. [00:33:11] Speaker 00: But they welcomed him into the border patrol, they welcomed him into training, and they declared him medically fit. [00:33:17] Speaker 00: And then they turned around and used that factor to deny his claim. [00:33:21] Speaker 00: And the PSOB Act is a remedial statute that should be construed liberally. [00:33:26] Speaker 04: Can I just ask you a different hypothetical? [00:33:28] Speaker 04: Suppose that we're not talking about sickle cell or something like that. [00:33:33] Speaker 04: But suppose during the course of this training run, one of the agents had a brain aneurysm. [00:33:44] Speaker 04: And, you know, it's during a training run, so you can consider that an injury in the line of duty, but then you have to determine whether the aneurysm was actually the proximate cause of the death. [00:33:55] Speaker 04: You know, what caused the aneurysm and whether it was a line of duty or something else, and all the evidence suggests [00:34:00] Speaker 04: This was a genetic issue or it was pre-existing. [00:34:06] Speaker 04: Nobody had discovered it. [00:34:07] Speaker 04: It hadn't been discovered in pre-entry physicals, but that the heat conditions had nothing to do with it. [00:34:13] Speaker 04: This person died solely as a result of an aneurysm. [00:34:17] Speaker 04: In some sense, that's a pre-existing condition. [00:34:20] Speaker 04: It may be undiscovered. [00:34:22] Speaker 04: Would, in your view, that be compensable because the aneurysm occurred during [00:34:27] Speaker 04: climactic conditions with the run? [00:34:29] Speaker 00: No, Your Honor, because in that case, as you pointed out, there was no evidence that the heat played any role whatsoever. [00:34:35] Speaker 00: If he had a condition where he would have been completely fine and lived a normal life, but because he was placed in the heat, that acted and for some reason caused... So it's not just pre-existing conditions can't play a role, it's that [00:34:51] Speaker 04: that if they are the cause, I'm a little confused now because you were saying pre-existing conditions can't be used as a basis for denial, but in that hypothetical, you agree that it would be a basis for denial. [00:35:03] Speaker 00: Well, in that case, there's no evidence that there was any injury acting on the officer whatsoever. [00:35:10] Speaker 04: They died during the training run. [00:35:12] Speaker 04: So that means the injury during the line of duty and then you have to go to the next step to determine what the proximate cause was. [00:35:21] Speaker 00: Yes, Your Honor, but in that case there was no evidence that one of the factors under the regulation were [00:35:27] Speaker 00: even a cost, much less a direct and profitable cost. [00:35:30] Speaker 04: Right, okay, but hopefully we're not debating this legal issue about whether it can be one or multiple causes. [00:35:35] Speaker 04: I'm going with the regulation, and so I don't understand, I'm sorry I've got you over your time, why you could consider that pre-existing condition just because it could possibly have no connection and can't consider sickle cell because it might have no connection to the duty, but it might have a connection to the duty. [00:35:54] Speaker 00: Your Honor, our main distinction is that the undisputed evidence in this case is that sickle cell trait is a benign personal trait. [00:36:01] Speaker 00: In that case, the aneurysm you're talking about is clearly not benign because it itself acted to cause this injury in death. [00:36:07] Speaker 00: In our opinion, the sickle cell trait is no different than age, race, sex, or an allergy, which all make an officer more susceptible to certain adverse conditions. [00:36:18] Speaker 00: Under the government's view, they could always pull out a number of factors that could have played a role, throw up their hands and say that there is not enough evidence to find that there is a direct and proximate cause. [00:36:29] Speaker 00: One final point, if I may. [00:36:31] Speaker 03: I mean, I wonder whether you might have a standard which would say if this is a well-known risk factor for death under these circumstances, that that kind of pre-existing condition can be considered, but the government is not able to sort of gin up on an individual basis some other contributing factor which isn't a well-known risk factor. [00:36:55] Speaker 03: That's just an idea. [00:36:57] Speaker 03: I don't know whether that's the right line. [00:36:59] Speaker 03: But I'm searching for some way of distinguishing between those pre-existing conditions which could be considered and those which couldn't. [00:37:08] Speaker 03: And it seems to me that that is an important line in this case. [00:37:16] Speaker 00: Your Honor, I think this court drew the line quite well in Juneau. [00:37:19] Speaker 00: In that case, the officer in question had a pre-existing heart condition. [00:37:23] Speaker 00: and diabetes myelitis. [00:37:27] Speaker 00: And in that case, the court found that those conditions made it very likely that the stress or strain of chasing a suspect would cause his death. [00:37:36] Speaker 00: And in that case, the conditions themselves were not because of death, and yet they made it more likely that the stress or strain would result in his death. [00:37:44] Speaker 00: And this court found that the stress or strain was the cause of death in those cases. [00:37:49] Speaker 00: That could be a way that this court could, the agency below can certainly consider [00:37:53] Speaker 00: that certain conditions or traits of an officer could make them more susceptible to certain conditions, and then find that those conditions were the actual cause. [00:38:05] Speaker 00: The point here is that as a benign condition, while it makes him more susceptible, it cannot act on its own. [00:38:12] Speaker 00: The injury is the traumatized condition of the body. [00:38:15] Speaker 00: But trauma could not have been caused by a benign condition. [00:38:18] Speaker 03: It's not entirely a benign condition in the sense that it is a risk factor that can make you more susceptible to death under these circumstances. [00:38:28] Speaker 00: Well, Your Honor, to the extent that age is not a benign condition, then I would agree with you. [00:38:33] Speaker 00: Age makes all of us more susceptible to any number of hazards that we will encounter in our lives. [00:38:40] Speaker 00: And yet the age does not cause someone to succumb or be injured. [00:38:44] Speaker 00: by those factors. [00:38:45] Speaker 00: The actual incident that triggers the event is the cause. [00:38:50] Speaker 00: When my grandmother breaks her hip falling in the shower, it's not because her injury was not caused by her age, it was caused by the fall. [00:38:57] Speaker 00: Her age simply makes her more susceptible to serious injury from falls and from other conditions. [00:39:05] Speaker 00: The one last point I would like to make is Judge Dyke, you said that if sickle cell trait was not considered, [00:39:11] Speaker 00: you asked whether it would be compensable. [00:39:13] Speaker 00: And the government said that it would not because of the evidence in this case. [00:39:16] Speaker 00: I would just first say that if you find that sickle cell trait should not have been considered, at a minimum, this case should be reversed because the director clearly included sickle cell trait as one of the causes and one of the reasons for his confusion. [00:39:29] Speaker 00: However, the evidence in this case makes very clear that climatic conditions played a much more significant role than the stress or strain of running a 1.5-mile training run. [00:39:41] Speaker 00: And the evidence is the testimony from his fellow officers saying that Agent Athelion was a stallion, a machine in an incredible shape. [00:39:49] Speaker 00: He was a man for whom running a mile and a half at the moderate pace he did is certainly not the kind of stress or strain that could have ended his life. [00:39:59] Speaker 00: And with that, Your Honors, thank you. [00:40:06] Speaker 01: Thank you. [00:40:06] Speaker 01: Thanks to both counsels. [00:40:08] Speaker 01: The case is taken under submission.