Walter Faust vs. City of San Diego

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WORKERS' COMPENSATION APPEALS BOARD 1 2 STATE OF CALIFORNIA 3 Case No. 4 5 SDO 244774 WALTER FAUST, 6 Applicant, 7 vs. OPINION AND DECISION AFTER RECONSIDERATION (En Banc) 8 9 10 CITY OF SAN DIEGO, Permissibly Self-Insured, Defendant(s). 11 12 13 The Workers’ Compensation Appeals Board (Appeals Board) 14 granted reconsideration of the Findings and Orders issued by a 15 workers’ compensation administrative law judge (WCJ) on July 15, 16 2002, 17 cumulative industrial injury in the form of cancer while employed 18 as a firefighter by the City of San Diego from February 4, 1972 19 through 20 presumption of Labor Code section 3212.1 is applicable to this 21 claim and that defendant has not met its burden of rebutting the 22 presumption.1 23 reconsideration. 24 Because 25 secure in which the December WCJ 27, 1997. Defendant of the uniformity of found filed important decision that applicant Applicant an answer legal in not contends to issues cases did the that petition presented, arising sustain under and the for to section 26 27 1 All further statutory references are references to the Labor Code unless otherwise indicated. 1 3212.1, the Chairman of the Appeals Board, upon a majority vote of 2 the members, reassigned this case to the Appeals Board as a whole 3 for an en banc decision after reconsideration. (Lab. Code, §115.)2 4 We hold that under section 3212.1, as amended in 1999, when 5 an applicant establishes both exposure to a known carcinogen and 6 the 7 specifies, the cancer is presumed to be an industrial injury. 8 burden 9 (1) by evidence establishing the primary site of the cancer and 10 (2) by evidence establishing that there is no reasonable link 11 between the carcinogen and the cancer. 12 that no reasonable link exists; it does not rebut the presumption 13 by 14 reasonable link. manifestation then merely shifts proving or development to that the defendant there I. 15 of is no cancer to rebut as the the section The presumption The defendant must prove evidence demonstrating a BACKGROUND 16 Applicant, Walter Faust, was employed as a firefighter by the 17 City of San Diego from February 1972 until his retirement on 18 July 4, 19 prostate cancer in April 1998. 20 underwent surgery in May 1998, and retired on July 4, 1998.3 21 June 22 Claim alleging cumulative industrial injury. 1998. 1998, Applicant’s medical condition was diagnosed as applicant He stopped working at that time, In filed an Application for Adjudication of On September 25, 23 2 24 25 26 27 The Appeals Board’s en banc decisions are binding precedent on all Appeals Board panels and WCJs. (Cal. Code Regs., tit. 8, §10341; Gee v. Workers’ Compensation Appeals Bd. (2002) 96 Cal.App.4th 1418, 1425, fn. 6, 67 Cal. Comp. Cases 236, 239, fn. 6.) 3 We note that the claimed period of cumulative industrial injury was limited to the period February 4, 1972, through December 27, 1997, and was also the period of injury found by the WCJ. FAUST, WALTER 2 1 1998, defendant denied liability for the claim of injury in the 2 form of cancer.4 3 Both parties obtained qualified medical evaluations. 4 Applicant’s qualified medical evaluator (QME), Prakash Jay, M.D., 5 in the report of February 10, 1999, concluded that applicant’s 6 prostate cancer 7 includes applicant’s 8 reference to studies concerning the occurrence of prostate cancer 9 in firefighters. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 was industrially reported related. history and Dr. Jay’s contains report extensive Applicant reported his history of exposure to Dr. Jay: “Mr. Walter Faust stated that he was employed by the City of San Diego Fire Department as a fire fighter from February 1972 until his retirement on July 4, 1998. He stopped working in April 1998 as a result of his prostate cancer. “Mr. Faust believed that his prostate cancer was contributed to by his cumulative work place exposures to carcinogens. He states that he has been exposed to smoke, combustion products, and carcinogens over many years during the course of his employment as a fire fighter for the City of San Diego Fire Department. Mr. Faust stated that during the course of his employment with the City he has fought many fires. He stated that he had previously fought all types of fires including structural fires, vehicular fires, ship fires, wild land fires, dumpster fires, and many garage fires. He stated that in the early years of his employment he did not use respiratory protection on a regular basis. He stated that many of the garage fires that he fought involved paint lockers, pesticides, and various chemicals. He indicated that in approximately 1990 or 1991 there was a tuna boat fire in which there were burning 4 Applicant’s claim of industrial injury to other body parts was resolved by an Award made pursuant to the stipulations of the parties issued by the WCJ on August 28, 2001. FAUST, WALTER 3 1 chemicals. He believed that the tuna boat had paint lockers, solvents, and thinners. He stated that in approximately 1973 or 1974 he fought a fire at San Diego Plating. He stated that this was a total burnout with lots of smoke from plating chemicals including various types of metals. He indicated that in 1975 there [was] a fire at Dave’s Display in which a lot of plastics and costumes were burning. He stated that in approximately 1995 or 1996 he fought a fire at a soap factory and indicated that a lot of different chemicals were burning during that fire as well. He stated that in 1978 he fought a fire at the Old Globe Temporary Theater which was constructed with creosote-coated poles. In approximately 1979 or 1980 he fought a fire at a warehouse on Commercial Avenue. He stated that approximately in 1990 there was a Western Metal fire which contained fire from paint and other chemicals. He stated that over the many years during the course of his employment he had fought multiple chemical fires which he responded to at the Tenth Avenue Terminal. He stated that he had fought many fires downtown at old dilapidated hotels and warehouses which involved the burning of chemicals. These were only some of the examples of the types of fires that he has fought. Mr. Faust had a list of multiple other fires that he had fought over the many years during the course of his employment. I have attached a copy of the list to this report.” (Qualified Medical Evaluation in Internal Medicine and Toxicology, Prakash Jay, M.D., February 10, 1999, pp. 1-2.) 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 In his discussion of causation, Dr. Jay cited and discussed 20 21 medical studies 22 prostate cancer in firefighters and that discussed the incidence 23 of 24 synergistic effect of the exposure to multiple carcinogens, and 25 the risks to firefighters of such exposure. (Id. at pp. 9-11.) 26 /// 27 /// cancers in FAUST, WALTER that found firefighters, significantly including 4 a increased discussion rates of of the 1 Dr. Jay stated: 2 “The fact that Mr. Faust has fought all types of fires including chemical fires, vehicular fires, garage fires, and is exposed to smoke and combustion products from plating chemicals including various types of metals, paints, plastics, pesticides, etc., indicates that he has been exposed to numerous carcinogens. The fact that prostate cancer risk is high among other occupations including chemists, textile workers, painters, and rubber tile workers indicates that Mr. Faust has been exposed to similar types of carcinogens that these occupational workers have been exposed to during the course of his employment as a fire fighter.” (Id. at. pp. 10-11.) 3 4 5 6 7 8 9 10 11 Finally, Dr. Jay discussed applicant’s exposure to cadmium, 12 “the only well documented chemical carcinogen that is implicated 13 in 14 applicant’s 15 company fire, and concluded that applicant had been exposed to 16 cadmium. 17 prostate cancer is industrially related. the causation of exposure On this prostate to various basis, Dr. cancer.” fires, Jay Dr. Jay especially concluded discussed the that plating applicant’s (Id. at. p. 11.) 18 Defendant’s QME, Frederick Y. Fung, M.D., in the report of 19 September 29, 1998, concluded that applicant’s condition was not 20 related to his employment as a firefighter. 21 22 23 24 25 26 27 Dr. Fung reported applicant’s history of exposure: “In terms of exposures, Mr. Faust states that he was first employed of February 4, 1972, by the City of San Diego as a firefighter. He retired about four months ago. During the first three to six months of his employment, he underwent basic firefighter training. After that, he worked at Station 1 for 14 years. He states that during those 14 years, he covered the downtown area and fought fires. He states that he fought furniture and mattress fires, FAUST, WALTER 5 1 11 soap factory fires, plating fires, tuna boat fires, airline fires. On one occasion, he also fought a creosote fire as a result of burning telephone poles. He also had a follow up fire control at the Aerospace Museum fire. He states that he was not required to wear personal protective equipment until 1985. Prior to that, it was up to the fire captain’s judgement. After that, he worked at Station 21 for three years, then Station 36 for two years, and then back to Station 21 for one year. He then worked at Station 9 for 2-3 years, and then at Station 3 for less than one year. He states that during his employment at these stations, he fought house fires, business fires and car fires. He states that he had several exposures with general coughing. He was not hospitalized as a result of any of these fires.” (Comprehensive Medical-Legal Evaluation, Frederick Y. Fung, M.D., September 29, 1998, p.2.) 12 In the discussion section, Dr. Fung stated further: 13 “Based on the history provided to me, Mr. Faust had exposure while fighting fires. However, he was not ill nor hospitalized for any of the exposures. 2 3 4 5 6 7 8 9 10 14 15 16 17 18 19 20 21 “Prostate cancers are generally greater in countries where the population consumes more animal fat. There are several occupational groups that have been suspected to have increase in prostate cancer, although the association is still controversial. The groups include exposure to cadmium, ionizing radiation such as the atomic bomb survivors. The mechanism of prostate cancer development is related to male androgenic hormone, testosterone. 22 23 24 25 “I have personally conducted a literature search regarding prostate cancer in firefighters. Based on the literature search, there are no documents in the world medical and scientific literature that associates prostate cancer and firefighters.” (Id. at p. 6, emphasis added.) 26 27 FAUST, WALTER 6 1 Dr. Fung concluded, concerning causation: 2 “Based on the history provided to me and evaluation of medical literature regarding prostate cancer, it is my medical opinion that this condition is unrelated to his employment as a firefighter with the City of San Diego. As the literature indicates, this condition is related to the person’s hormonal activities. There is no association between exposure by firefighters and prostate cancer.” (Id.) 3 4 5 6 7 On March 9, 1999, Dr. Fung issued a supplemental report in 8 which he reviewed Dr. Jay’s report and questioned the adequacy of 9 the medical studies and literature cited by Dr. Jay. In the 10 supplemental report, Dr. Fung addressed and challenged each of the 11 studies cited by Dr. Jay. Dr. Fung concluded: 12 “Based on review of Dr. Jay’s medical report, review and analysis of additional medical literature, my understanding of toxicology as a Board Certified Medical Toxicologist, and my understanding of the workplace as a Board Certified Occupational Medicine Specialist, it is my opinion that Mr. Faust’s prostate cancer is not related to his occupational exposure as a firefighter for the City of San Diego. My opinion remains the same as that outlined in my original report dated 9/29/98, that his cancer has not been caused, aggravated or accelerated by his employment exposure.” (Supplemental Medical/Legal Evaluation, Frederick Fung, M.D., p.3.) 13 14 15 16 17 18 19 20 21 At the hearings testified of and fires he fought and the burning materials to which he believes he 25 was exposed, including fires in commercial districts, residential 26 garages, 27 materials FAUST, WALTER automobiles, years as a He described the types of warehouses, pesticides, 7 26 2002, 24 canyons, for 24, firefighter for the City of San Diego. as employed April 23 such was 2002 applicant sites, he 7, 22 dumping that March and hotels, paints, and chemicals, 1 textiles, metals, 2 regularly wear 3 believed that he had been exposed to cadmium in some fires, but 4 was not certain of this. 5 Evidence, March 7, 2002, pp. 3-5; Minutes of Hearing and Summary 6 of Evidence, April 24, 2002, pp. 2-4.) Frank 7 resins, breathing Rodriguez, a and appliances. apparatus before Applicant 1983 or did not 1984. He (Minutes of Hearing and Summary of firefighter who worked together with 8 applicant for six years, testified that both he and applicant were 9 exposed to burning and burnt materials, including: burnt rubber 10 from 11 paints, textiles, and ceramics in fighting structural fires; burnt 12 batteries from vehicles and appliances; the products of canyon and 13 dump 14 Evidence, April 24, 2002, pp. 4-6.) vehicle and fires; and garage fires; burnt inks, magazines, resins, soot. (Minutes of Hearing and Summary of 15 Robert Needham, an employee of the San Diego Plating Company, 16 testified that sulfuric acid and muriatic acid were used in the 17 cleaning process of metals. 18 of rinse tanks, soap tanks, nickel plating, copper plating, and 19 chrome plating. 20 the 21 plating. 22 metals. 23 (Id. at pp. 6-7.) 24 cadmium The engine plating line was made up Needham testified: plating. Cadmium “The company usually sent out was used in certain types of The plating process was used to control corrosion of The corrosion proofing would break down in hot fires.” On July 15, 2002, the WCJ issued the Findings and Orders, 25 finding 26 injury in the form of cancer while employed by the City of San 27 Diego that from applicant February FAUST, WALTER 4, did 1972 not sustain through 8 cumulative December 27, industrial 1997. In 1 reaching the decision, 2 section 3212.1, but concluded that it had been rebutted by Dr. 3 Fung’s opinion. 4 (1970) 3 Cal. 3d 372, 378, 35 Cal. Comp. Cases 525, 529, as 5 authority 6 decision. for the WCJ relying on Dr. II. A the presumption of The WCJ cited Place v. Workers' Comp. Appeals Bd. 7 8 recognized firefighter who is Fung’s opinion in reaching the carcinogen and DISCUSSION exposed to a known 9 develops or manifests cancer while employed (or for a specified 10 period after the termination of employment) is entitled to the 11 presumption 12 presumption may be rebutted (1) by evidence that the primary site 13 of 14 exposure to the recognized carcinogen is not reasonably linked to 15 the disabling cancer. (Lab. Code, §3212.1.) the that cancer has the cancer been A. 16 is industrially established and (2) by caused.5 evidence The that FORMER SECTION 3212.1 17 Prior to the 1999 amendment of section 3212.1, an applicant 18 had the burden of establishing the prerequisites for applying the 19 presumption 20 required to demonstrate industrial exposure to a known carcinogen 21 and that the exposure was reasonably linked to 22 /// 23 /// 24 /// 25 /// 26 27 of injury under the section. The applicant was 5 For brevity, we generally refer only to firefighters in our opinion. However, section 3212.1 is also applicable to peace officers who are primarily engaged in active law enforcement activities. FAUST, WALTER 9 1 the disabling cancer.6 2 Before the 1999 amendment, the Court of Appeal in Riverview 3 Fire Protection Dist. v. Workers’ Comp. Appeals Bd. (Smith)(1994) 4 23 Cal. App. 4th 1120, 59 Cal. Comp. Cases 180, held that the term 5 “reasonable link,” as used in section 3212.1, had a plain meaning 6 that is clear on its face. 7 there is a logical connection between them. 8 were not required to show that industrial exposure to carcinogens 9 proximately caused their cancer, but they were required to show 10 something more than a mere coincidence of exposure and cancer, Two things are reasonably linked if Thus, firefighters 11 6 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Prior to the 1999 amendment, section 3212.1 provided: “In the case of active firefighting members of fire departments of cities, counties, cities and counties, districts, or other public or municipal corporations or political subdivisions, and active firefighting members of the fire departments of the University of California and the California State University, whether these members are volunteers, partly paid, or fully paid, and in the case of active firefighting members of the Department of Forestry and Fire Protection, or of any county forestry or firefighting department or unit, whether volunteers, partly paid, or fully paid, and peace officers as defined in Section 830.1 and subdivision (a) of Section 830.2 of the Penal Code who are primarily engaged in active law enforcement activities, the term ‘injury’ as used in this division includes cancer which develops or manifests itself during a period while the member is in the service of the department or unit, if the member demonstrates that he or she was exposed, while in the service of the department or unit, to a known carcinogen as defined by the International Agency for Research on Cancer, or as defined by the director, and that the carcinogen is reasonably linked to the disabling cancer. “The compensation which is awarded for cancer shall include full hospital, surgical, medical treatment, disability indemnity, and death benefits, as provided by this division. “The cancer so developing or manifesting itself in these cases shall be presumed to arise out of and in the course of the employment. This presumption is disputable and may be controverted by other evidence, but unless so controverted, the appeals board is bound to find in accordance with it. This presumption shall be extended to a member following termination of service for a period of three calendar months for each full year of the requisite service, but not to exceed 60 months in any circumstance, commencing with the last date actually worked in the specified capacity.” The 1999 amendment added subdivision designations. the third paragraph of this section. FAUST, WALTER 10 Subdivision (d) replaced 1 i.e., a logical connection between the two. 2 the legislative history showed that the purpose of the workers’ 3 compensation presumption statutes is to ease the burden of proof 4 for 5 “reasonable 6 section 3212.1 would be mere surplusage and would not have been 7 enacted. Accordingly, 8 inference that 9 worker’s cancer, 10 disputable presumption of industrial causation could be invoked. 11 However, in this case, the Court held that the applicant failed to 12 establish 13 occupational exposure prior to the latency period. (Riverview Fire 14 Protection Dist. v. Workers’ Comp. Appeals Bd. (Smith), supra.)7 certain safety link” a workers. to the be the If the reasonable Legislature equivalent of had “proximate intended cause,” if the evidence supported a reasonable occupational then The Court stated that a exposure reasonable link link because he contributed was did shown, not to the and the demonstrate Establishment of this linkage was a question of fact, to be 15 16 determined 17 Workers' Comp. Appeals Bd. (1990) 218 Cal. App. 3d 980, 55 Cal. 18 Comp. Cases 78 [Analysis of legislative history and application of 19 section 3212.1 before the 1999 amendment].) 20 /// 21 /// 22 23 24 25 26 27 by a preponderance of the evidence. (Zipton v. 7 A “latency period” has been described as: (1) “the period between the time of exposure to the disease-causing agent and the time when the disease has progressed to the point at which it can be diagnosed” (Hamilton v. Asbestos Corp., Ltd. (2000) 22 Cal.4th 1127,1135); (2) the period “between exposure to a toxic substance in the work environment and the development of clinically diagnosable symptoms” (Palestini v. General Dynamics Corp. (2002) 99 Cal.App.4th 80, 96); (3) “[t]he time from exposure to a chemical carcinogen to the appearance of a clinically-detectable cancer” and “the time of initial exposure to onset of cancer” (Riverview Fire Protection Dist. v. Workers’ Comp. Appeals Bd., supra, 23 Cal.App.4th at p. 1129, 59 Cal. Comp. Cases at p. 186); and (4) the “period between injurious exposure and subsequent development of disease.” (Industrial Indemnity Co. v. Workers’ Comp. Appeals Bd. (Pisciotta) (1983) 145 Cal.App.3d 480, 484, 48 Cal. Comp. Cases 559, 562.) FAUST, WALTER 11 B. 1 2 3 PRESENT SECTION 3212.1 In 1999, however, the Legislature amended section 3212.1 to provide, in relevant part: 4 5 6 7 8 9 “(b) The term ‘injury,’ as used in this division, includes cancer, including leukemia, that develops or manifests itself during a period in which any member described in subdivision (a) is in the service of the department or unit, if the member demonstrates that he or she was exposed, while in the service of the department or unit, to a known carcinogen as defined by the International Agency for Research on Cancer, or as defined by the director. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 *** “(d) The cancer so developing or manifesting itself in these cases shall be presumed to arise out of and in the course of the employment. This presumption is disputable and may be controverted by evidence that the primary site of the cancer has been established and that the carcinogen to which the member has demonstrated exposure is not reasonably linked to the disabling cancer. Unless so controverted, the appeals board is bound to find in accordance with the presumption. This presumption shall be extended to a member following termination of service for a period of three calendar months for each full year of the requisite service, but not to exceed 60 months in any circumstance, commencing with the last date actually worked in the specified capacity. “(e) The amendments to this section enacted during the 1999 portion of the 1999-2000 Regular Session shall be applied to claims for benefits filed or pending on or after January 1, 1997, including, but not limited to, claims for benefits filed on or after that date that have previously been denied, or that are being appealed following denial.” 25 26 27 FAUST, WALTER 12 1 The 1999 amendment requires that the applicant establish that 2 he or she is a firefighter or peace officer who falls within the 3 ambit of section 3212.1(a). The applicant must further demonstrate 4 exposure to a known carcinogen as defined in published standards 5 and that the cancer has developed or manifested itself during the 6 period when the applicant was in active service or for a specified 7 period, not to exceed 60 months from the last day of work in the 8 specified capacity, if the applicant’s service has terminated. 9 (Lab. 10 longer 11 exposure and the cancer. §3212.1(b)&(d).) Code, required to Therefore, establish a the reasonable applicant link is between no the 12 Accordingly, the presumption of compensability arises and the 13 burden shifts to the defendant when the applicant has made this 14 showing. 15 that the primary site of the cancer has been established and (2) 16 by evidence that exposure to the recognized carcinogen is not 17 reasonably linked to the disabling cancer. The defendant may rebut the presumption (1) by evidence C. 18 An 19 APPLICANT’S BURDEN UNDER PRESENT SECTION 3212.1 applicant must present evidence to 20 presumption that his or her cancer is industrial. 21 establish the Such evidence will include the following. 22 The applicant must establish employment as a firefighter, and 23 the dates of the employment. This may be shown by stipulation of 24 the parties, testimony, or documentary evidence. Before 25 26 27 the presumption may be applied, section 3212.1(b) requires that applicant demonstrate that he or she was exposed to an identified FAUST, WALTER known carcinogen. (Holtgrave 13 v. Workers’ Comp. 1 Appeals Bd. (2003) 68 Cal. Comp. Cases 953 (writ den.).) 2 applicant 3 carcinogen” 4 carcinogen is defined as such by the International Agency for 5 Research on Cancer, or otherwise so “defined by the director.” 6 (Lab. 7 director” are those regulated by the director of the Department of 8 Industrial Relations. (Lab. Code, §9004; Cal. Code Regs., tit. 8, 9 §§5208, 5209, 5210, 5217, 5218.) must establish with Code, that evidence, §3212.1(b).) the exposure generally The was to documentary, carcinogens a “known that “defined The by the the 10 The applicant must also demonstrate actual exposure to the 11 established known carcinogen during the period of employment as a 12 firefighter. 13 other credible evidence that may include expert testimony. The 14 applicant 15 proximate cause of the injury. (Riverview Fire Protection Dist. v. 16 Workers’ Comp. Appeals Bd. (Smith), supra.) is This may be shown by the applicant’s testimony or not required to show that the exposure is the No specific level of actual exposure needs to be shown; a 17 18 minimal exposure is enough to satisfy the applicant’s burden. 19 (Leach v. West Stanislaus Cty. Fire Protection Dist. (2001) 29 20 Cal. Workers’ Comp. Rptr. 188, 189 (Appeals Board Panel).) The applicant must also show the development or manifestation 21 22 of the cancer, 23 evidence 24 manifestation. that during must the statutory include the time date period, of by medical development or 25 Manifestation of the cancer includes the showing of symptoms 26 that are related to the disease, whether or not they are diagnosed 27 as cancer at the time they arise. FAUST, WALTER The date of manifestation may 14 1 be significantly earlier than the date of diagnosis, especially in 2 cases where the illness has an “indolent” or slow course. (County 3 of El Dorado v. Workers’ Comp. Appeals Bd. (Klatt)(2000) 65 Cal. 4 Comp. Cases 1437,1439 (writ den.).) The burden of proving these initial elements lies with the 5 6 applicant. When the applicant has shown: (1) that he or she was 7 employed in an included capacity; (2) that he or she has been 8 exposed to a known carcinogen during the employment; and (3) that 9 he or she has developed or manifested cancer within the statutory 10 time frames, then he or she has made a prima facie showing that 11 the cancer is presumptively compensable. D. 12 DEFENDANT’S BURDEN UNDER CURRENT SECTION 3212.1 The burden of rebutting the presumption now shifts to the 13 14 defendant. To rebut the presumption, the defendant must establish 15 by evidence two elements: (1) that the primary site of the cancer 16 has been identified; and (2) that the carcinogen is not reasonably 17 linked to the disabling cancer. First, the defendant must establish the primary site of the 18 19 cancer. (Lab. Code, §3212.1(d).) 20 site requires competent medical evidence. (See Zipton v. Workers' 21 Comp. Appeals Bd., supra.) The establishment of the primary 22 Second, the defendant has the burden of showing that the 23 carcinogen to which the applicant has demonstrated exposure is not 24 reasonably linked to the disabling cancer, i.e., the defendant 25 must provide evidence to establish that there is no reasonable 26 link. 27 Medical or similar expert scientific evidence is necessary to show that there is no reasonable link between the exposure and FAUST, WALTER 15 1 the cancer. A defendant may establish that there is no reasonable link 2 3 between the applicant’s 4 establishing the absence of a link between the exposure and the 5 cancer, 6 manifestation of the specific cancer excludes the exposure as the 7 cause of the applicant’s cancer. (Law v. Workers’ Comp. Appeals 8 Bd. (2003) 68 Cal. Comp. Cases 497, 499 (writ den.); Leach v. West 9 Stanislaus Cty. Fire Protection Dist., supra.) including exposure establishing and his or her illness by that the latency period of the The defendant’s burden is to prove by medical probability 10 11 that there is 12 demonstrated exposure to known carcinogens during the employment 13 and the development of cancer. (City of Anaheim v. Workers’ Comp. 14 Appeals 15 den.).) It is not enough for the defendant to show that no 16 evidence has 17 carcinogen and the cancer. 18 by evidence of reasonable medical probability that a reasonable 19 link does not exist. Bd. no reasonable (Pettitt) (2002) established a link 67 between Cal. reasonable Comp. link the Cases between applicant’s 1609 the (writ known Instead, the defendant must establish 20 Accordingly, evidence showing that no reasonable link has 21 been demonstrated to exist between the carcinogen or carcinogens 22 to which the firefighter has been exposed and the development of 23 the cancer, is not adequate to rebut the presumption of industrial 24 causation. 25 demonstrate that medical or scientific research has shown that 26 there is no reasonable inference that exposure to the specific 27 known To rebut the presumption, the evidence must explicitly carcinogen FAUST, WALTER or carcinogens is 16 related to or causes the 1 development of the cancer. 2 Expert evidence should include a review of studies or other 3 evidence that justifies an opinion or conclusion that there is no 4 reasonable link. 5 a foundation for the opinion. The studies should be attached to the report as 6 Evidence, such as medical literature, that does not relate 7 the exposure to the cancer is not evidence that no link exists. 8 To find otherwise would improperly place the burden of showing 9 industrial causation on the applicant. 10 there 11 incidence 12 suffered by the applicant does not rebut the presumption. are no in epidemiological firefighters of Therefore, the fact that studies the showing particular an type increased of cancer 13 Evidence that may rebut the presumption may include evidence 14 that there is no reasonable link between the primary site of the 15 cancer and the carcinogen to which the applicant was exposed, 16 because the period between the exposure and the manifestation is 17 not within the cancer’s latency period, as established by medical 18 evidence. (Leach v. West Stanislaus Cty. Fire Protection Dist., 19 supra; see also County of El Dorado v. Workers’ Comp. Appeals Bd. 20 (Klatt), 21 diagnosed less than five years after his employment began. 22 defendant presented medical evidence that the latency period for 23 colon cancer was at least ten years. 24 found that the defendant had successfully rebutted the presumption 25 of industrial causation with this evidence. 26 27 supra.) In Leach, the applicant’s colon cancer was The The Appeals Board panel If the defendant does not meet its burden of proving both requisite elements, i.e., the primary site of the cancer and the FAUST, WALTER 17 1 lack of a reasonable link between the exposure and the cancer, 2 then 3 compensability and an industrial injury must be found. (Lab. Code, 4 §3212.1(d).)8 the defendant has not III. 5 rebutted the presumption of CONCLUSION In summary, in a case where an applicant has invoked the 6 7 presumption of 8 burden of showing (1) that he or she was employed in an included 9 capacity; 10 carcinogen during the employment; and (3) that he or she has 11 developed or manifested cancer. 12 showing, 13 presumption by evidence that: (1) the primary site of the cancer 14 has been identified; and (2) that the carcinogen is not reasonably 15 linked to the disabling cancer. (2) the section that burden he 3212.1, or she shifts the has applicant been has exposed the to initial a known When the applicant has made this to the defendant to rebut the 16 An analysis using the above criteria must be completed before 17 a decision is reached on the presumptive compensability of the 18 claim in the present case. 19 one 20 evidence using the method required by section 3212.1, as set forth 21 above. 22 choose among conflicting medical reports and to select those that 23 are deemed most appropriate. (Jones v. Workers’ Comp. physician in Here, the WCJ relied on the opinion of preference to another, without analyzing the It is generally well settled that the WCJ has the power to Appeals Bd. 24 25 26 27 8 We note that a defendant’s successful rebuttal of the presumption of compensability does not bar the firefighter’s claim of industrially related cancer. However, in the absence of the presumption, it becomes the applicant’s burden to establish industrial causation by a reasonable medical probability. (See McAllister v. Workers’ Comp. Appeals Bd. (1968) 69 Cal. 2d 408, 416, 33 Cal. Comp. Cases 660, 665.) FAUST, WALTER 18 1 (1968) 86 Cal. 2d 476, 33 Cal. Comp. Cases 221.) 2 considered 3 evidence 4 record. (Place v. Workers’ Comp. Appeals Bd. (1970) 3 Cal. 3d 372, 5 378, 35 Cal. Comp. Cases 525, 529; Smith v. Workers’ Comp. Appeals 6 Bd. (1969) 71 Cal. 2d 588, 592, 34 Cal. Comp. Cases 424, 427; 7 Patterson v. Workers’ Comp. Appeals Bd. (1975) 53 Cal. App. 3d 8 916, 921, 40 Cal. Comp. Cases 799, 801.) 9 as this, where a statutory presumption is applicable, a systematic 10 analysis must be applied to the evidence presented. 11 cannot 12 physician 13 conflicting 14 appears to be of equal caliber. A mere difference of opinion 15 between physicians is not sufficient to rebut the presumption. opinion even though resolve in the one doctor may inconsistent with issue preference medical Therefore, 16 of of reasonable to another, reports as the contains Appeals The relevant and constitute other substantial reports in the However, in a case such link even The WCJ by selecting one if each of the evidence that substantial Board’s decision after 17 reconsideration, we will rescind the Findings and Orders issued 18 July 15, 2002, and return the matter to the WCJ for analysis of 19 the evidence in accordance with the principles set forth above, 20 and for new decision thereafter. 21 For the foregoing reasons, 22 IT IS ORDERED, the Appeals Board’s decision after the Findings and Orders issued July 15, 23 reconsideration, 24 2002, is RESCINDED, and the matter is returned to the workers’ 25 /// 26 /// 27 /// FAUST, WALTER that as 19 1 compensation administrative law judge for further proceedings and 2 new decision. 3 WORKERS' COMPENSATION APPEALS BOARD 4 (EN BANC) 5 _________________________________________ MERLE C. RABINE, Chairman 6 7 _________________________________________ WILLIAM K. O’BRIEN, Commissioner 8 9 _________________________________________ JAMES C. CUNEO, Commissioner 10 11 _________________________________________ JANICE JAMISON MURRAY, Commissioner 12 13 _________________________________________ FRANK M. BRASS, Commissioner 14 15 __________________________________________ A. JOHN SHIMMON, Commissioner 16 17 _________________________________________ RONNIE G. CAPLANE, Commissioner 18 19 20 DATED AND FILED AT SAN FRANCISCO, CALIFORNIA 21 December 11, 2003 22 23 SERVICE BY MAIL ON SAID DATE TO ALL PARTIES AS SHOWN ON THE OFFICIAL ADDRESS RECORD EXCEPT LIEN CLAIMANTS. 24 csl/tab 25 26 27 FAUST, WALTER 20