WCDefenseCA

Happy Monday, dear readers!

Your humble blogger hopes you are staying dry, as the Bay Area is in enjoying a rinsing-off by the rains.

Today I bring to your most discerning attention the Court of Appeal opinion in the published case of City of South San Francisco v. WCAB and City of Pacifica.

The case involves a firefighter who worked for each of the two cities involved (South San Francisco until 2001, and then Pacifica after that).  While employed by Pacifica in 2005, applicant developed nasal obstruction in 2005, and then a growth on his neck which turned out to be a tumor.  Mr. Johnson, the applicant in question, developed nasopharyngeal cancer.  Because Labor Code section 3212.1 operated to apply a presumption of industrial causation, the main question was which of the two employers should be on the hook for the benefits to be provided.

The claim was filed against Pacifica, which denied the claim and joined South San Francisco.  The later eventually settled the case and sought contribution from Pacifica.  But, at arbitration, the case went in favor of Pacifica, because the latency period of the cancer suggested injurious exposure occurred during applicant’s time with South San Francisco.

And the case ended there, and everyone lived happily ever after.  The end.

Just kidding – did I mention this went up to the Court of Appeal?

The Agreed Medical Evaluator relied on studies showing solid tumors (like the growth on applicant’s neck) had a latency period of at least 10 years, and the estimated last exposure period was in 1996 or 1997, while applicant was still employed by South San Francisco.

Now comes the fun part – the AME expressed doubt that there was sufficient evidence to even conclude that the exposures visited upon firefighters could have caused the cancer, but there were two standards of proof at play.

The first one was general compensability, which had a presumption in favor of the applicant.  The second was the preponderance standard for which of his employers was responsible.  As such, because the AME’s evidence was more persuasive than not as to the latency period, even though that evidence might not have been more persuasive than not as to causation in general, South San Francisco got stuck with the whole shebang.

The Court of Appeal, in upholding the WCAB and the arbitrator’s findings, reasoned “[w]e simply do not find that same worker protection policies embodied in section 3212.1 implicated in allocation of liability between employers.”

So what does that mean for us on the defense side?  Well, sometimes, when there are multiple defendants involved, the applicant’s involvement can gum up the work.  Who needs one of those trouble-making applicant attorneys to file for hearings and make objections while we’re trying to close a file?  Why not just wrap it up with a C&R and handle it among the clearly more civilized attorneys of the defense bar?

WRONG.

Look, there are a LOT of reasons why it’s better to continue to litigate the case-in-chief rather than to seek contribution.  But, as far as it relates to this Court of Appeal decision, there’s clearly another one.

With this fresh Court of Appeal decision in hand, a defendant might want to resist taking one for the proverbial team and seeking contribution later – the standards are different.  While the multiple defendants are involved in the case-in-chief, perhaps they all have an incentive to try to beat that presumption, or any other high standard involved in the case.  There is potential in cooperation between defendants to share information to mount an effective global defense.  Not so, once the OAC&R issues.

What do you think, dear readers?  Is your humble blogger giving contribution a bad name? Or is it better to keep everyone trapped in a case as long as possible to squeeze contribution to a C&R (rather than contribution as reimbursement)?