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:

1) The employee must show that he/she was exposed to a carcinogen, and that he/she developed cancer.

2) If the employee meets this burden, the burden shifts to the employer and the employer must show the following:

a) The employer must identify the origin site of the cancer. If no origin site can be identified, the employer is liable, and that liability is “bullet proof.”

b) If the employer establishes the origin site of the cancer, the employer must then affirmatively show that there is no reasonable link between the carcinogen and the cancer. This burden is more than the lack of evidence. That is, the employer’s physician cannot simply say that they cannot find a study that links the carcinogen with the cancer. Rather, the employer must show studies that affirmatively show that there is no link between the carcinogen and the contracted cancer.

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 employer’s 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 employer’s 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 employer’s 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.

CLOSING

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.

Footnotes:

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.

2 One reason for only articulating an exposure, as opposed to a threshold exposure, is the latency period between the exposure to a carcinogen, and the development of cancer. Given the time gap between exposure and development of disease, the employee can usually only identify that he/she was exposed, and not the amount of exposure.

3 Once a carcinogen is identified, one should reference the International Agency for Research on Cancer (IARC) classification of carcinogens. Under IARC, there is a definite link between a carcinogen in Group I and human cancer. In Group II carcinogens, there is a probable link between the carcinogen and human cancer and there is a definite link in animals between the carcinogen and cancer. In Group III carcinogens, there is no link between the carcinogen and cancer.

4 Batteries contain cadmium, an IRAC Group I carcinogen.

5 As of January 1, 2005, the employer will probably have an advantage in the no-link argument. The employer will search for an expert that testifies there is no link between the reported exposures and the type of cancer contracted. Effective January 1, 2005, the Labor Code prohibits an employee without attorney representation from hiring his/her own expert. Even if the employee has attorney representation, the attorney must pick an expert in conjunction with the employer, and pick from a panel that will probably be heavily weighted with employer-biased physicians. Without a favorable expert, the only way the employee will be able to attack the employer’s expert physician testimony is for the employee’s attorney to depose the physician in an attempt to demonstrate that the physician did not understand the law. Remember, under the law, no link in the literature does not mean there is no link between the carcinogen and the specifically contracted cancer. Rather, the expert physician must specifically articulate that the literature affirmatively shows there is no link between the carcinogen and the specific cancer. Thus, the employee’s attorney will have to question the expert physician and demonstrate that the expert failed to meet this burden.

6 The Fire Department has recently implemented a policy, which is actually a revision of an old policy that all employees shall wear SCOTTs during overhaul (until the Oxygen concentration in the environment is 19%). Without even analyzing the deficiencies of basing an exposure policy on oxygen concentration only, the policy is problematic in other ways. Although wearing SCOTTs will avoid an employee’s exposure to potentially dangerous substances, it does so at the risk of significantly increasing the potential of head, neck or back injuries. Further, although the policy was undoubtedly implemented to partially limit the Department’s exposure to liability, unless the Department consistently enforces the policy, the policy is ineffective in preventing liability. A policy that is not enforced does not protect against liability. When was the last time you saw a Battalion Chief wearing a SCOTT during overhaul or enforcing the requirement that all persons in a contaminated environment wear SCOTTs? In order to protect its firefighters, and protect itself from liability, the Department should provide lightweight respirators to use during overhaul, and enforce the use of those respirators.

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