ADJ11869760 · September 7, 2021

The defendant failed to rebut the Labor Code section 3212.1 presumption linking the colon cancer to employment exposure. The medical evidence, including Dr. Hirsch's opinions, supported the presumption and the latency period argument was not sufficient to rebut it.

From the decision · page 1Defendant seeks reconsideration of the Findings, issued by the workers' compensation administrative law judge (WCJ) on September 8, 2020, wherein the WCJ found in pertinent part that applicant sustained injury arising out of and occurring in the course of employment (AOE/COE) in the form of colon cancer.

Defendant submitted no evidence to rebut the presumption linking colon cancer to employment exposure.

Favours Applicant prevailed

This failure meant the presumption stood, favoring the applicant's claim of injury AOE/COE.

From the decision · page 5Review of the trial record is clear; defendant submitted no evidence that medical or

Dr. Hirsch testified that the latency period for colon cancer can vary and he could not rule out a shorter latency period for the applicant's cancer.

Favours Applicant prevailed

This undermined the defendant's argument that the latency period was too short to link the cancer to employment.

From the decision · page 6Defendant also argues that the presumption has been rebutted because the latency period for colon cancer is longer than applicant's employment as a deputy sheriff with defendant. The Appeals Board has previously concluded that to successfully rebut the cancer presumption defendants are required to introduce medical/scientific evidence explicitly demonstrating that there are no circumstances under which applicant could develop cancer in a period of time that is less than the latency period. (City of Pittsburg v. Workers' Comp. Appeals Bd. (Ligouri) (2018 W/D) 83 Cal.Comp.Cases 711.) In our Ligouri decision we noted that latency periods can vary from case to case, and that the doctor in that matter, could not rule out the possibility of a shorter latency period. (Ligouri, supra, at p. 713.) Here, Dr. Hirsch did not, and could not, rule out the possibility that applicant's cancer had a shorter latency period.

Defendant was not denied due process despite the trial being conducted via telephone, and no harm was shown from this procedure.

Favours Defendant prevailed

This supported the panel's decision to affirm the findings despite defendant's procedural objections.

From the decision · page 6Finally, regarding defendant's argument that the trial conducted via telephone was a denial of due process, we first note that defendant participated in the trial, including taking applicant's testimony, and was in possession of the Joint Exhibits submitted into evidence. Also, although defendant argues that proceeding with the hearing denied the WCJ the opportunity to "assess" applicant's credibility (Petition, p. 7), the WCJ's Findings were based on the reports and deposition testimony of AME Dr. Hirsch, not applicant's testimony. (See Opinion on Decision.) It appears that applicant's testimony was consistent with the history he gave Dr. Hirsch as well as the reports in the medical records reviewed by Dr. Hirsch.

Dr. Hirsch diagnosed multifactorial toxic exposure and adenocarcinoma of the colon, widely metastatic to liver and lungs. He opined that the cancer was reasonably linked to exposures in employment and that the presumption of causation was not rebutted due to latency period variability.

Dr. Hirsch's medical opinions were relied upon by the WCAB to affirm the injury AOE/COE finding.

From the decision · page 1On May 22, 2019, applicant was evaluated by internal medicine agreed medical examiner (AME) Jeffrey A. Hirsch, M.D. Dr. Hirsch examined applicant, took a history, reviewed the

Labor Code section 3212.1

Labor Code section 3212.1 cancer presumption and burden of proof requirements

The presumption applies to cancer injuries and shifts the burden to the employer to rebut the link between cancer and employment exposure. The employer must prove the absence of a reasonable link to rebut the presumption.

From the decision · page 4(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.... (Lab. Code, § 3212.1)

Dr. Hirsch's deposition and supplemental reports consistently supported the causal link between employment exposures and colon cancer, and the presumption was not rebutted by latency period arguments.

From the decision · page 2Q....I mean he came to the county of Los Angeles ridded with cancer. Do you agree with that?... A. It approaches medical certitude that the applicant did not have any type of colon cancer Stage I, II, III, or IV. He did not have that when he became a sworn peace officer. As I testified a moment ago the natural history of this type of colon cancer is pretty rapid moving. So if he had colon cancer when he became a peace officer he would have died by 2018 absent treatment. (Joint Exh. 6, pp. 13 § 14.)