FIREFIGHTERS AND THE WORKERS COMPENSATION CANCER PRESUMPTION
|By Karen Heald|
|Many of us know firefighters that have contracted cancer. The City and County of San Francisco has usually refused to cover these cancers as work-related, even though the California Legislature has created a rebutable presumption that cancer IS work-related. This article informs fire service suppression personnel about how the cancer presumption, found in the California Labor Code, works.
When the cancer presumption was first implemented in the California Labor Code, it created a rebutable presumption in which the fire service employee had to show a reasonable link between the carcinogen and the sustained cancer. This burden was often difficult for the worker to show.
In 2000, the California legislature changed the presumption, memorialized in Labor Code Section 3212.1, and the presumption created, as explained below, is much stronger for the employee. The new presumption is retroactive to cover any cancer developed after January 1, 1997.
Currently, the cancer presumption works as follows:
Employers rebut the assumption that the cancer is work-related in three ways. First, the employer can argue that the employee was not exposed to a carcinogen. Second, the employer can argue that there is a latency problem. That is, given the type of cancer, there has not been enough time between the alleged exposure and the development of cancer. Third, the employer may argue that although the employee was exposed to carcinogens A-Z, there is no link between those exposures and the cancer in question.
EVALUATING THE THREE ARGUMENTS USED TO REBUT THE CANCER PRESUMPTION
I. No Exposure
Remember that the employee has the initial burden to show an actual exposure to a carcinogen. By meeting this initial burden, the employee automatically circumvents the first of the employers arguments.
To meet the burden of showing exposure, the employee can use both expert and lay testimony to identify the exposure, and there is no minimum threshold of exposure that the employee must identify, just an exposure. Expert testimony would consist of an expert identifying carcinogens present in different types of exposures.
Lay testimony would consist of the employee going through the journal of his/her working days and identifying any structural fires, car fires, or other incidents to which the employee responded. The employee can also articulate specific recollections of incidents. The employer has no ability to rebut this type of lay testimony. Because of the latency period, the incidents that occurred early in ones career are most important. Identify the number of fires and where the fire occurred, and be as specific as possible. That is, identify a vehicle fire and note that plastics, rubber, batteries, or other articles were involved, and identify the type of building in which a fire occurred, like a government building known to contain asbestos.
In addition to specific data, where recollected or noted in journals, the employee should summarize incidents. For example, during the first ten years, the employee responded to an average of two fires per month, with an average on scene time of two hours, consisting of fire attack and overhaul, with SCOTTs used during fire attack, but not overhaul.
II. Latency Period
The biggest weakness in employee cases is the latency period, thereby creating the employers strongest rebuttal. As a general rule, if the latency period between the exposure to a carcinogen and development of cancer is less than five (5) years, the employee will loose. If the latency period is five-ten (5-10) years, the employee can win but it is sometimes difficult. If the latency period is ten-twenty (10-20) years, the case is solid, and with latency periods of over twenty (20) years, the employer will lose the latency argument.
III. No Link
The third way an employer can attack a cancer presumption case is to demonstrate there is no link between the carcinogen and the type of cancer. This generally becomes a dueling expert scenario, but to date, this type of proof has been difficult for the employer to show because no evidence of a link does not demonstrate that there is no link. That is, the employers expert must demonstrate an affirmative study showing no link between the carcinogen and the cancer, and not just a lack of evidence in the literature showing a link.
The City and County of San Francisco resists paying cancer presumption cases. These cases are expensive because of the medical treatment, the permanent disability and the death benefits. It appears that the resistance to pay is primarily an economic decision, and not a decision based on defined policy or consistent legal analysis. The groups that represent firefighters, both union and otherwise, should aggressively lobby the Fire Department administration regarding the economic need to cover these cases. A firefighter stricken with cancer should not have to fight the Fire Department and the City and County of San Francisco in order to get coverage for cancer care.
Finally, each member should carefully evaluate the attorney the member wants to use for workers compensation issues. Any attorney is willing to take the easy cases, such as an accepted back, knee, or shoulder injury, where that attorney often gets a generous contingency fee given the amount of expended time. However, because employers fight cancer cases, and cancer cases are difficult to manage, an attorney expends an inordinate amount of time handling a cancer case, and the attorney often does not make enough on contingency payments to compensate for the time expenditure.
Before you retain an attorney to represent you on an accepted shoulder, back or knee injury, ask that attorney if he/she will accept your cancer case, should such a scenario develop. If not, find another attorney. I can recommend a couple of very good attorneys that are willing to spend the time and money representing cancer clients. However, if you expect these attorneys to represent you should you develop cancer, you should also use these attorneys to represent you on your other simple work-related injuries that the City and County of San Francisco accepts and covers.
1 This analysis was articulated in a Workers Compensation Appeals Board opinion, Faust v. City of San Diego from December 2003. A California Appeals court has not reviewed any Workers Compensation Appeals Board opinion on this issue, so this analysis may change in the future.