ADJ12509226 · February 29, 2024

The applicant's compensable permanent disability and knowledge of its industrial cause occurred on November 13, 2019, within the statute of limitations period, so the claim is not barred.

From the decision · page 17In summary, and based on our review of the record, we conclude that the nature of applicant's disability was not amenable to lay attribution, and therefore required medical advice as to its relation to applicant's work activities for purposes of establishing a date of injury pursuant to section 5405. The first evidence of such advice in the evidentiary record was November 13, 2019. Because the concurrence of applicant's compensable permanent disability and knowledge that such disability was caused by his employment occurred on November 13, 2019, applicant's claim is not barred by the statute of limitations of section 5405. We will affirm the WCJ's March 27, 2020 Finding of Fact, accordingly.

Defendant relied on initial incomplete and inaccurate medical report to deny claim, which undermined public policy and delayed applicant's knowledge.

Favours Applicant prevailed

Supported the finding that statute of limitations did not bar the claim.

From the decision · page 4The WCJ's Report observes that defendant's Petition does not contest the applicability of the presumption of section 3212.1, or the WCJ's determination that the reporting of Dr. Padova was not substantial medical evidence until his deposition was taken on November 13, 2019. (Report, at p. 3.) The WJC observes that defendant erroneously relied on Dr. Padova's "incomplete and inaccurate" initial report, and that the application of the statute of limitations under the circumstances undermines public policy. (Ibid.)

Applicant did not have training or qualifications to recognize relationship between employment exposures and his cancer disability.

Favours Applicant prevailed

Supported the finding that applicant was not chargeable with knowledge of industrial causation before medical advice in 2019.

From the decision · page 10Under these circumstances we conclude there is substantial evidence to support the board's decision that applicant was not chargeable with knowledge that his disability was work related. Applicant did not have the training or qualifications to recognize the relationship between the known adverse factors involved in his employment and his disability. Applicant's expression of the belief, shared by most disabled employees, that his employment caused his disability does not mandate a contrary conclusion.

Applicant's credible testimony that early medical diagnoses were equivocal and conflicting, causing reasonable doubts about diagnosis and industrial causation.

Favours Applicant prevailed

Supported the finding that applicant did not have knowledge of compensable disability until medical advice in 2019.

From the decision · page 13We agree with the WCJ's finding that, given the unique and complex medical scenario outlined in this case, the applicant did not and should not have known of his industrial occupational disease until his 2008 diagnosis of cancer at the base of the tongue. Applicant was given a number of diagnoses, including cat scratch fever, and even testified that he was told that the mass could be congenital. Although squamous cell carcinoma was suspected, the early medical reports make clear that scans and biopsies were never definitive. Most importantly, the applicant testified that the diagnoses were always presented to him in an equivocal manner. The WCJ found his testimony in this regard credible, and because a WCJ has the benefit of viewing witnesses' live testimony, the WCJ's credibility determinations are entitled to "great weight." [Citation.] Given the disparate diagnoses given to the applicant when he first sought medical treatment, the fact that biopsies and scans were producing conflicting results, and the equivocal language communicated to the applicant, it would be understandable for a lay person such as the applicant to have reasonable doubts as to a diagnosis even when the weight of the medical evidence pointed to squamous cell carcinoma.

Initially opined no probable exposure to carcinogen linked to cancer; later testified applicant was exposed to carcinogens and cancer manifested during employment.

The WCJ found the initial 2008 report incomplete and inaccurate, giving more weight to the 2019 deposition testimony revising the opinion to support industrial causation.

From the decision · page 2Applicant filed a claim form for workers' compensation benefits in approximately June, 2008. (Minutes, at 5:19.) The employer directed applicant to attend an August 27, 2008 evaluation by James Padova, M.D. Therein, Dr. Padova conducted a clinical examination of applicant, and reviewed applicant's vocational and medical history. Dr. Padova opined that applicant had not "demonstrated probable exposure to a known carcinogen that could reasonably be linked to the cancer condition in question and, therefore, I would not consider this patient's testicular cancer as being presumptively related to his employment as a police officer." (Ex. 1. Report of James Padova, M.D., dated August 27, 2008, at p. 9.)

Johnson v. WCAB, 163 Cal.App.3d 467

Medical advice to an applicant that his disability was caused by employment is sufficient to trigger the statute of limitations under Labor Code section 5405.

Applied to determine when statute of limitations began to run in this case.

From the decision · page 92853] (writ den.) [general medical advice that work stress was depleting applicant's immune system insufficient to confer knowledge for purposes of section 5412].) Accordingly, "[t]here is no real disagreement that medical advice to an applicant for workers' compensation benefits that his disability was caused by his employment is sufficient to trigger the statute of limitations." (Johnson, supra, 163 Cal.App.3d 467.)

City of Long Beach v. WCAB (Garcia) (2005) 126 Cal.App.4th 298

The cancer presumption of Labor Code section 3212.1 eases the burden of proof of industrial causation for firefighters and peace officers exposed to carcinogens.

Applied to support the presumption of industrial causation for applicant's testicular cancer.

From the decision · page 167 We also note that the cancer presumption found in section 3212.1 as alleged by applicant is included within "a series of presumptions of industrial causation" enacted by the Legislature, reflective of a public policy whose purpose is "to provide additional compensation benefits to employees who provide vital and hazardous services by easing their burden of proof of industrial causation." (City of Long Beach v. Workers' Comp. Appeals Bd. (Garcia) (2005) 126 Cal.App.4th 298, 310§ 311 [70 Cal.Comp.Cases 109] (Garcia), citing Riverview Fire Protection Dist. v. Workers' Comp. Appeals Bd. (1994) 23 Cal.App.4th 1120, 1123§ 1124 [59 Cal.Comp.Cases 180].) The Court of Appeal in Garcia made clear, "the Legislature was concerned with the unfairness to firefighters and peace officers who, while exposed to carcinogens during the course of their job duties, nonetheless were denied benefits because it was not possible to prove the genesis of the cancer." (Id. at pp. 316-317.) Thus, the legislature enacted the cancer presumption of section 3212.1 precisely because of the difficulty in establishing causation of the condition.

Applicant's credible testimony that diagnoses were equivocal and conflicting, causing reasonable doubts about diagnosis and industrial causation

From the decision · page 13We agree with the WCJ's finding that, given the unique and complex medical scenario outlined in this case, the applicant did not and should not have known of his industrial occupational disease until his 2008 diagnosis of cancer at the base of the tongue. Applicant was given a number of diagnoses, including cat scratch fever, and even testified that he was told that the mass could be congenital. Although squamous cell carcinoma was suspected, the early medical reports make clear that scans and biopsies were never definitive. Most importantly, the applicant testified that the diagnoses were always presented to him in an equivocal manner. The WCJ found his testimony in this regard credible, and because a WCJ has the benefit of viewing witnesses' live testimony, the WCJ's credibility determinations are entitled to "great weight." [Citation.] Given the disparate diagnoses given to the applicant when he first sought medical treatment, the fact that biopsies and scans were producing conflicting results, and the equivocal language communicated to the applicant, it would be understandable for a lay person such as the applicant to have reasonable doubts as to a diagnosis even when the weight of the medical evidence pointed to squamous cell carcinoma.

Defendant relied on initial incomplete and inaccurate medical report to deny claim, which undermined public policy

From the decision · page 4The WCJ's Report observes that defendant's Petition does not contest the applicability of the presumption of section 3212.1, or the WCJ's determination that the reporting of Dr. Padova was not substantial medical evidence until his deposition was taken on November 13, 2019. (Report, at p. 3.) The WJC observes that defendant erroneously relied on Dr. Padova's "incomplete and inaccurate" initial report, and that the application of the statute of limitations under the circumstances undermines public policy. (Ibid.)