ADJ9699542 · October 5, 2026

The Appeals Board found that the defendant failed to rebut the presumption under Labor Code section 3212.1 because the medical evidence did not establish the absence of a reasonable link between occupational carcinogen exposure and the cancers. The Board rescinded the WCJ's prior finding and found injury AOE/COE to the cancers resulting in death.

From the decision · page 14not adequately establish the medical or legal basis for his conclusion that the evidence overcomes the statutory presumption. Accordingly, the record does not establish the absence of a reasonable link between the occupational carcinogens and decedent’s cancers as required under section 3212.1. Finally, we will find that the requisite concurrence of disability and knowledge pursuant to section 5412 occurred on May 13, 2016, the date upon which applicants submitted their application for adjudication of claim (death claim). The formal filing of this initial pleading, in the absence of any other evidence to the contrary, served to officially anchor the requisite awareness alongside the underlying disability, thereby establishing May 13, 2016 as the operative date of injury in this matter. Accordingly, as our Decision After Reconsideration, we rescind the WCJ’s F&O and issue a new decision finding injury AOE/COE, that defendant failed to rebut the presumption pursuant to section 3212.1, and defer issues of temporary disability alleged from August 19, 2014 to June 20, 2015, death benefits, dependency, and CalPERS Special Death Benefit. For the foregoing reasons, IT IS ORDERED as the Decision After Reconsideration of the Workers’ Compensation Appeals Board, that the March 1, 2021 Findings and Order is RESCINDED with the following SUBSTITUTED therefor:

Decedent had unprotected, cumulative occupational exposure to IARC Group 1 carcinogens including benzene, vinyl chloride, and diesel fumes during his employment as a wildland firefighter.

Favours Applicant prevailed

This exposure satisfied the evidentiary requirements for the cancer presumption under Labor Code section 3212.1, supporting compensability.

From the decision · page 10(Sylves) (2017) 10 Cal.App.5th 119, 126 [82 Cal.Comp.Cases 301].) Here, decedent, while employed as a wildland firefighter and Fire Captain between October 1, 1997 and August 18, 2014, sustained unprotected, cumulative occupational exposure to IARC Group 1 carcinogens, including benzene, vinyl chloride, and diesel fumes. On January 5, 1998, physicians diagnosed him with Stage III rectal cancer. He subsequently developed HPV-16- positive squamous cell carcinoma of the right base of the tongue and recurrent metastatic rectal cancer. Therefore, the evidentiary requirements are satisfied for the application of the cancer presumption of compensability pursuant to section 3212.1. Having demonstrated actual exposure based on the above discussion, the burden then shifted to defendant to rebut the presumption.

PQME Dr. Fishman failed to provide substantial medical evidence to rebut the presumption, as he did not clearly explain the significance of nonindustrial factors or exclude a reasonable link between occupational exposure and cancer.

Favours Applicant prevailed

Without clear medical evidence rebutting the presumption, the Board found the defendant failed to meet its burden, resulting in a finding of injury AOE/COE.

From the decision · page 12Here, PQME Dr. Fishman failed to proffer substantial medical evidence sufficient to rebut the statutory presumption of compensability articulated in section 3212.1. Although he accurately identified the precise anatomical sites of the malignancies and appropriately recognized both the genetic mutation and the viral pathogen, his reports and subsequent deposition testimony conspicuously fail to articulate the precise significance he attributed to those nonindustrial factors. Specifically, the evidentiary record remains devoid of any clear explanation as to whether he considered the aforementioned biological factors categorically sufficient to establish that absolutely no reasonable link existed between decedent’s documented occupational exposure to known carcinogens and the subsequent development of his cancers.

Dr. Fishman opined that defendant rebutted the presumption but deferred the ultimate legal determination to the WCJ. However, the Appeals Board found his opinion insufficient to rebut the presumption because he did not clearly explain the significance of nonindustrial factors or exclude a reasonable link between occupational exposure and cancer.

Dr. Fishman's opinion failed to establish that the documented occupational exposures could not have contributed to the cancers, thus not meeting the statutory standard for rebuttal under Labor Code section 3212.1.

From the decision · page 12Here, PQME Dr. Fishman failed to proffer substantial medical evidence sufficient to rebut the statutory presumption of compensability articulated in section 3212.1. Although he accurately identified the precise anatomical sites of the malignancies and appropriately recognized both the genetic mutation and the viral pathogen, his reports and subsequent deposition testimony conspicuously fail to articulate the precise significance he attributed to those nonindustrial factors. Specifically, the evidentiary record remains devoid of any clear explanation as to whether he considered the aforementioned biological factors categorically sufficient to establish that absolutely no reasonable link existed between decedent’s documented occupational exposure to known carcinogens and the subsequent development of his cancers.

Labor Code section 3600

Employer liability requires injury arising out of and in the course of employment under Labor Code section 3600.

The Board reiterated the requirement for injury AOE/COE for workers' compensation benefits.

Labor Code section 3212.1

Presumption of compensability under Labor Code section 3212.1 applies to firefighters with cancer.

The Board applied the presumption to the decedent's cancers given his occupational exposure and found defendant failed to rebut it.

From the decision · page 7The WCJ issued her F&O dated February 26, 2021 finding that decedent did not sustain injury AOE/COE to his neck/tongue and colon/rectal in the form of cancer. In her Opinion on Decision, the WCJ reasoned that the presumption of compensability in section 3212.1 applied but that defendant successfully rebutted it because the evidence demonstrated “no reasonable link” between the carcinogens and the cancers. (Opinion on Decision, pp. 3-4.) In her Report, the WCJ stated as follows: With the history of non-industrial colon cancer, the Court finds the defendant demonstrated applicant’s terminal colon cancer was caused by Lynch Syndrome, not by an industrial factor. *** Dr. Fischman... state[d that] “[t]he decedent’s tongue cancer HPV-16 status was determined to be positive.” *** The... panel qualified medical examiner, Dr. Fischman [sic],... not[ed that] the HPV virus was located within the tumor itself, leading the doctor to believe it was nonindustrial in nature. *** The court found defendant successfully rebutted the presumption of Labor Code § 3212.1, and there is no finding of injury arising out of or in the course of employment for the applicant's neck/tongue cancer, colon/rectal cancer, and subsequent death. (Report, pp. 6-8.) It is from this F&O that applicants seek reconsideration.

Applicant Jennifer the applicant's testimony about financial hardship and family support after decedent's death.

Medical records documenting decedent's exposure to IARC Group 1 carcinogens including benzene, vinyl chloride, and diesel fumes during employment as a wildland firefighter.

From the decision · page 3Panel Qualified Medical Evaluator (PQME) Ira Fishman, M.D., prepared a report dated December 8, 2015, in which he reported that decedent actively participated in wildland firefighting from October 1, 1997, until his promotion to Fire Captain on June 1, 2009. During an average summer, decedent devoted approximately 800 to 1,000 hours to wildland firefighting and experienced less frequent smoke exposure from winter control burns without respiratory protection. (Joint Ex. Y, pp. 4, 28.) The comprehensive medical record review revealed two objective pathological findings: (1) a p16-positive squamous cell carcinoma of the right base of the tongue, treated with definitive chemoradiation therapy in December 2014; and (2) an invasive, 7.0 cm signet ring cell adenocarcinoma of the rectum with positive surgical margins. (Id. at pp.