ADJ11941968 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied

Petition for Reconsideration filed by defendant and denied by WCAB panel

What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

AOE/COEApplicant prevailedbrain · low back · neck · bilateral knees

The evidence was insufficient to rebut the presumption of compensability for brain cancer under Labor Code section 3212.1, and defendant unreasonably rejected liability, leading to penalties under Labor Code section 5814.3.

Temporary disabilityDefendant prevailedlow back · neck · bilateral knees

The Board found that temporary disability benefits do not continue after retirement unless the employee is not retired from all purposes or the retirement decision was related to the industrial injury.

From the decision · page 12retired. Defendant relies upon Gonzales v. WCAB (1998) 63 Cal.Comp.Cases 1477, in which the court held that whether an employer is liable for [temporary] disability following retirement depends on his or her willingness to work. If the employee is retired for all purposes and not just from the particular employment, he would not be entitled to any temporary disability. (Gonzales v. WCAB (1998) 63 Cal.Comp.Cases 1477, 1479.)

What the panel did with the medical opinions

The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.

AMERelied upon

Diagnosed decedent with Glioblastoma multiforme (brain cancer) and opined that the carcinogen lead could be linked to the cancer under the presumption, but causation was unknown if the presumption did not apply. Reviewed studies and concluded that lead or products of combustion could not be ruled out as causes.

Dr. Green reviewed medical literature and studies, opining that lead exposure was a probable cause of the brain cancer under the presumption and that the defendant failed to rebut this causation.

From the decision · page 3With regards to his alleged cancer injury, the decedent was evaluated by Dr. Jonathan Green as an Agreed Medical Examiner. In his report dated 9/22/20, Dr. Green diagnosed decedent with Glioblastoma multiforme (brain cancer).

secondary_treaterPartially credited

Testified that the etiology of glioblastoma is primarily unknown and that there was no association found between lead and glioblastoma in the study he reviewed.

Dr. Silveira's testimony and study were reviewed by Dr. Green, who found the study inconclusive and insufficient to rule out causation by lead or combustion products.

From the decision · page 4The deposition of decedent's treating radiation oncologist, Dr. William Silveira, was taken on 5/2/22. Dr. Silveira testified that he provided a consultation regarding adjuvant radiation therapy for the decedent and that he had never testified as an expert witness. (Exh. N, Dr. Silveira deposition transcript, 5/2/22, pg. 14:3-7, 19-22.) In preparation for the deposition, Dr. Silveira reviewed a chapter on the etiology of glioblastoma and a study referenced in that chapter. Based upon his review, the doctor opined that the etiology of glioblastoma is primarily unknown in most cases. (Id. at pg. 15:21 - 22) The doctor also stated that the study he had reviewed found that there was not an association or link between lead and glioblastoma. (Id. at pg. 16:17 - 25) The doctor further testified that he was unaware of any studies showing no association between benzene or the by-products of combustion and glioblastoma. (Id. at pg. 17:15-18:4.)

AMERelied upon

Reported on cumulative trauma injury and maximum medical improvement with permanent impairment assigned.

From the decision · page 10The legal date of injury for a cumulative trauma is defined by Labor Code section 5412 as the date upon which the applicant first suffered disability and either knew, or should have known, that such disability was caused by his present or prior employment. In this case, the first evidence of disability is found in Exhibit B, Dr. Rothi's report dated 6/26/19, wherein he notes that there had

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Labor Code section 3212.1

Presumption of compensability for peace officers diagnosed with cancer under Labor Code section 3212.1

Employer has burden to rebut presumption by proving no reasonable link between carcinogen exposure and cancer.

From the decision · page 6Labor Code section 3212.1 sets forth a presumption of compensability for peace officers diagnosed with cancer. (Lab. Code§ 3212.1(a)(4)). The presumption applies if a statutorily covered employee demonstrates that cancer developed, or manifested during a period of service to the department, and that he or she was exposed to a carcinogen while in the service of the department as "defined by the International Agency for Research on Cancer (IARC) or as defined by the director [of the California Department of Industrial Relations]." (Lab. Code§ 3212.1(b)). Once this is shown, the employer has the burden of rebutting the presumption by proving that: (1) the primary site of the cancer has been established; and (2) the carcinogen to which the member has demonstrated exposure is not reasonably linked to the disabling cancer.

Labor Code section 5814.3

Penalties for unreasonable rejection of liability under Labor Code section 5814.3

Defendant unreasonably rejected liability for brain cancer injury, leading to penalties.

Gonzales v. WCAB (1998) 63 Cal.Comp.Cases 1477

Temporary disability benefits do not continue after retirement unless employee is not retired from all purposes or retirement decision related to industrial injury

Board must assess retirement status and relation to injury to determine entitlement to temporary disability after retirement.

From the decision · page 12retired. Defendant relies upon Gonzales v. WCAB (1998) 63 Cal.Comp.Cases 1477, in which the court held that whether an employer is liable for [temporary] disability following retirement depends on his or her willingness to work. If the employee is retired for all purposes and not just from the particular employment, he would not be entitled to any temporary disability. (Gonzales v. WCAB (1998) 63 Cal.Comp.Cases 1477, 1479.)

Labor Code section 3501(b)

ADJ11941968 · May 9, 2024

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

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