ADJ17557045 — California WCAB decision

What the panel ordered

Petition for Reconsideration is denied.

Petitioner County of Ventura seeks reconsideration of the 03/13/2024 decision that the presumption under Labor Code Section 3212.1 applies and has not been rebutted.

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What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

AOE/COEApplicant prevailedpancreas · liver

The petitioner failed to prove that the industrial exposures were not reasonably linked to the disabling cancer or that any such connection was absurd or illogical, thus the presumption was not rebutted.

From the decision · page 4IV. DISCUSSION There is no dispute as to applicant's exposure to carcinogens on the job. There is no dispute that after some four years of such employment as a peace officer he developed pancreatic and liver cancer. Petitioner essentially argues that applicant must bear the burden of proof of industrial causation despite the presumption set forth in Labor Code Section 3212.1. Applicant need not prove that the latency period for the development of his cancer is such that his industrial exposure did not cause the cancer. The burden was on petitioner to prove that the industrial exposures are not reasonably linked to the disabling cancer. There must either be no connection to the exposure and the cancer or "any such possible connection is so unlikely as to be absurd or illogical." City of Long Beach v. WCAB (Garcia) (2005) 70 CCC 109. Drs. Enyati and Leoni did not have to establish that applicant cancer was caused by the industrial exposures (though they both so opined). They only had to demonstrate that the connection was not non-existent or absurd or illogical. The medical literature offered by petitioner involves the medical demonstration of causation of certain cancers.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Applicant's uncontroverted exposure to carcinogens during employment as a peace officer from 2017 to 2022.

Favours Applicant prevailed

Supports the presumption of industrial causation under Labor Code Section 3212.1.

From the decision · page 3III. FACTS Applicant herein testified without rebuttal that in the course of his employment as a sworn peace officer between 2017 and 2022 he was exposed to gasoline fumes, benzene, drug paraphernalia, drugs, firearms and explosive discharges, gun cleaning and oiling materials, cigarette smoke, fire and other materials unknown (Summary of Evidence 12/19/2023). Defendant's Exhibits J, K and L are material data safety sheets for locations where applicant worked describing various substances, some of which were not considered safety hazards, and some of which were so considered. Applicant now suffers from pancreatic cancer, first diagnosed 12/18/2022 (Applicant's Exhibit 1, report of treating physician Sean Leoni, M.D. 03/29/2023).

Petitioner failed to prove that the connection between industrial exposure and cancer was non-existent or absurd.

Favours Applicant prevailed

Failure to rebut the presumption led to denial of petition for reconsideration.

From the decision · page 4IV. DISCUSSION There is no dispute as to applicant's exposure to carcinogens on the job. There is no dispute that after some four years of such employment as a peace officer he developed pancreatic and liver cancer. Petitioner essentially argues that applicant must bear the burden of proof of industrial causation despite the presumption set forth in Labor Code Section 3212.1. Applicant need not prove that the latency period for the development of his cancer is such that his industrial exposure did not cause the cancer. The burden was on petitioner to prove that the industrial exposures are not reasonably linked to the disabling cancer. There must either be no connection to the exposure and the cancer or "any such possible connection is so unlikely as to be absurd or illogical." City of Long Beach v. WCAB (Garcia) (2005) 70 CCC 109. Drs. Enyati and Leoni did not have to establish that applicant cancer was caused by the industrial exposures (though they both so opined). They only had to demonstrate that the connection was not non-existent or absurd or illogical. The medical literature offered by petitioner involves the medical demonstration of causation of certain cancers.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Labor Code Section 3212.1

Labor Code Section 3212.1 presumption of industrial causation of cancer.

The presumption applies to cancers arising from industrial exposure unless rebutted by the employer.

From the decision · page 4IV. DISCUSSION There is no dispute as to applicant's exposure to carcinogens on the job. There is no dispute that after some four years of such employment as a peace officer he developed pancreatic and liver cancer. Petitioner essentially argues that applicant must bear the burden of proof of industrial causation despite the presumption set forth in Labor Code Section 3212.1. Applicant need not prove that the latency period for the development of his cancer is such that his industrial exposure did not cause the cancer. The burden was on petitioner to prove that the industrial exposures are not reasonably linked to the disabling cancer. There must either be no connection to the exposure and the cancer or "any such possible connection is so unlikely as to be absurd or illogical." City of Long Beach v. WCAB (Garcia) (2005) 70 CCC 109. Drs. Enyati and Leoni did not have to establish that applicant cancer was caused by the industrial exposures (though they both so opined). They only had to demonstrate that the connection was not non-existent or absurd or illogical. The medical literature offered by petitioner involves the medical demonstration of causation of certain cancers.

City of Long Beach v. WCAB (Garcia) (2005) 70 CCC 109

Burden on employer to prove no connection or absurd connection between exposure and cancer.

Employer must prove that the connection between exposure and cancer is non-existent or absurd to rebut the presumption.

From the decision · page 4IV. DISCUSSION There is no dispute as to applicant's exposure to carcinogens on the job. There is no dispute that after some four years of such employment as a peace officer he developed pancreatic and liver cancer. Petitioner essentially argues that applicant must bear the burden of proof of industrial causation despite the presumption set forth in Labor Code Section 3212.1. Applicant need not prove that the latency period for the development of his cancer is such that his industrial exposure did not cause the cancer. The burden was on petitioner to prove that the industrial exposures are not reasonably linked to the disabling cancer. There must either be no connection to the exposure and the cancer or "any such possible connection is so unlikely as to be absurd or illogical." City of Long Beach v. WCAB (Garcia) (2005) 70 CCC 109. Drs. Enyati and Leoni did not have to establish that applicant cancer was caused by the industrial exposures (though they both so opined). They only had to demonstrate that the connection was not non-existent or absurd or illogical. The medical literature offered by petitioner involves the medical demonstration of causation of certain cancers.

Faust v. City of San Diego (2003), en banc, 68 CCC 1822

Minimal exposure is sufficient to satisfy burden of proof for causation under the presumption.

Even minimal exposure is enough to satisfy the applicant's burden under the presumption.

From the decision · page 5were ever in question and were not ignored by Dr. Enayati. The doctor's lack of understanding of Petitioner's assertion that Dr. Leoni did not have "any insight into the length of his (applicant's) assignments" ignores the fact that the industrial exposures are unquestioned. No specific level of actual exposure needs to be shown to prove causation; even a minimal exposure is enough to satisfy Applicant's burden. Faust v. City of San Diego (2003), en banc, 68 CCC 1822

ADJ17557045 · May 31, 2024

What the panel ordered

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