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Cop Cancer Presumption Defeated by AME’s Opinions

January 23rd, 2013

My dear readers may recall a three-part post on the presumptions afforded firefighters and police officers in questions of medical causation.  Specifically, Labor Code section 3212 calls for heart trouble which manifests during employment to be presumed compensable.  Similarly, Labor Code section 3212.1 applies to cancer.  Sit back, dear readers, and hear the tale of how this presumption was defeated in a recent writ denied case (for the more curious readers, the panel case is that of David Pesko v. City of Westminsterplease e-mail your humble blogger if you would care for a copy of the panel opinion.)

Officer Pesko of the Westminster Police Department filed an application claiming injury in the form of throat cancer.  The diagnosis was made by applicant’s treating physician, and he eventually underwent surgery and returned to light duty.  (Sources have reported that in response to this claim, Westminster has equipped all patrol cars with sirens and speakers, abandoning the prior procedure of having officers yell at the driver to pull over.)

The parties agreed to go to an AME to resolve all disputes, who found that the throat cancer “developed strictly as a consequence of non-work related HPV infection” which occurred prior to his employment with Westminster PD.

The injury was denied and the matter proceeded to trial, where the workers’ compensation Judge found that the AME’s opinions were substantial evidence, even though the Primary Treating Physician disagreed (sometimes, the AME’s opinions are controlling, even in the face of a PTP’s disagreement).

In denying applicant’s petition for reconsideration, the WCAB recognized that “[p]ursuant to Labor Code section 3212.1, a peace officer who is exposed to a known carcinogen and develops or manifests cancer while employed is entitled to the presumption that the cancer is industrially caused.”

However, citing City of Long Beach v. Workers’ Compensation Appeals Board (Garcia), the panel reasoned that the AME showed that “the odds that applicant’s cancer is industrial ‘are vanishingly small’,” which satisfied the Garcia standard that “an employer demonstrates the absence of a reasonable link if it shows no connection exists between the carcinogenic exposure, or that any such possible connection is so unlikely as to be absurd or illogical.”

However, one of the commissioners dissented, and would have granted reconsideration.  The dissenting opinion stated that the only way to overcome the presumption found in Labor Code section 3212.1 was to show that there was no link between the applicant’s exposure to carcinogens and his cancer – it doesn’t matter which is the more likely cause of the cancer, the non-industrial exposure prior to employment or the industrial exposure during employment; all that matters is the fact that there was an exposure, and the presumption of 3212.1 should kick in.

This blog has witnesses the cookie crumble both ways – a deputy sheriff’s congenital heart disease has been found industrial, while a corrections officer’s heart disease was found to have manifested prior to his employment.

The problem with expanding the application of the “presumption” is that you have cases such as these: a 99% certainty that the injury is caused by non-industrial infection, found by an Agreed Medical Evaluator, and one out of three commissioners would find the defendant-employer liable.

Several cities have had to cut their law enforcement and fire department budgets to accommodate potential liability, as can be seen in this latest police-chase footage from the frozen North of Eureka:

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