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.