Cancer Presumption under attack
Public safety officers have the cancer presumption. If the officer is exposed to known carcinogens and the cancer arises or manifests itself during the officer’s employment, the cancer is presumed work related. The attack on the cancer presumption is on proving the exposures were to “known carcinogens”.
The cancer safety presumption is set forth in Labor Code section 3212.1(d). The law states:
“The cancer so developing or manifesting itself in these cases shall be presumed to arise out of and in the course of employment. This presumption is disputable and may be controverted by evidence that the primary site of the cancer has been established and that the carcinogen to which the member has demonstrated exposure is not reasonably linked to the disabling cancer. Unless so controverted, the appeals board is bound to find in accordance with the presumption.”
The WCAB has held in Faust v. WCAB the injured worker must establish the following:
1) He or she is an active public safety officer;
2) The injured officer must demonstrate exposure to a known carcinogen as defined by the International Agency for Research on Cancer (IARC);
3) The cancer has developed or manifested itself during the period when the injured officer was in active service. Once the officer has demonstrated his/her burden of proof, the presumption arises and the burden shifts to the employer. To rebut the presumption, the employer must show:
1) Evidence that the primary site of the cancer has been established; and
2) That the exposure to the known carcinogens is not reasonably linked to the disabling cancer. In a recent case Fain v. WCAB, the 5th District Court of Appeal held a widow of a Fresno police officer did not prove that her husband’s fatal brain cancer arose from work. While the case was not published or certified thereby limiting any precedent, the decision reveals an important element an officer must prove to be entitled to the cancer presumption.
In Fain, the Court found the injured police officer did not show an exposure to a known carcinogen. The list of known carcinogens is outlined in the IARC Monographs on the Evaluation of Carcinogenic Risk to Humans. The IARC breaks down the classifications into different groups 1-4. Group 1 outlines agents that are carcinogenic to humans. Examples include the following: Sulfuric acid, Asbestos, Benzene, and Carbon dioxide
Group 2A and 2B outlines agents that are probably and possibly carcinogenic to humans. Examples include: Lead compounds, Diesel engine exhaust, Household chemicals, and combustion Engine exhaust, and gasoline.
Public safety officers are, at times, directly exposed to known carcinogens- hydrocarbons and benzene, in the suppression of fires. However, police officers must document still document exposures given the fact the employers will litigate the issue. Examples of exposures to known carcinogens are: Car fires– Hydrochloric acid, Nitric acid, Benzene, Toluene, Carbon dioxide, Cadmium Structure or land fires– Benzene, Hydrocarbons, Hydrochloric acid, Sulfuric acid, Carbon dioxide, Methane Diesel Exhaust– Benzene, Carbon dioxide
It is imperative police officers document the exposures. If the officer has responded to a car or structure fire, record the exposure as to the date and the type of fire. The reason for documenting exposures is simple. The injured officer must prove exposure to a known carcinogen in order to have the cancer presumption apply. This fact proved to be the difference in the Fain case, where the Court of Appeal denied benefits, since the officer did not show an exposure to a known carcinogen.
The cancer presumption is under attack by counties and cities. The employers are looking at every angle to deny an officer or dependent the cancer presumption. However, the primary attack by cities and counties in disputing the cancer presumption is challenging the public safety officer’s exposures to known carcinogens. It is therefore critical to record all exposures to carcinogens like fuel spills, car fires, and structure fires.
Cities and counties have now subverted the purpose of the cancer presumption to force an injured public safety officer to endure lengthy litigation on the issue of exposure to a known carcinogen. Firefighters can block the current attack by carefully recording their exposures.