California: Firefighter Presumption Extension Given Retroactive Effect

The 2nd District Court of Appeals has reversed a W.C.A.B. decision which had refused to apply the presumption of causation for cancer to a firefighter based on the amendment to Labor Code § 3212.1 which became effective after diagnosis but before trial.

In Lozano v W.C.A.B., the dependents of William Lozano sought intervivos and dependency benefits based on the employee’s diagnosis of stomach cancer.  The diagnosis was made in 2007 but the case was not filed until November 2009.  William was employed as a firefighter at a defense base.  On 1/1/2009 Labor Code § 3212.1 was amended to include firefighter employees such as William with the cancer presumption.  The agreed medical examiner reported that if the presumption applied to William Lozano, his cancer should be presumed as work related.  The AME reported that William was exposed to multiple carcinogens but that he could not specifically include nor exclude the form or cancer as being related.

The Court framed the issue as follows:

“The issue presented is whether an amendment to the Labor Code, enacted by Senate Bill 1271 on February 19, 2008 and effective on January 1, 2009, which would extend the cancer presumption to firefighters like William, is applicable to the claim for workers’ compensation benefits filed on November 3, 2009… “

In its brief (8+page) decision the Court discussed the concepts of “retroactive” applications of statutory changes vs. “prospective” application.  In its formulation the Court noted the distinction between issues of substantive law affecting the rights of the parties and procedural law which affects courtroom procedure.  The Court differentiated legal changes which would affect the legal consequences of past actions as being substantive, while legal changes which govern the procedures to be followed to determine the legal significance of past events is not.

“Thus, the fact that the event giving rise to the cause of action occurred prior to the effective date of the statute is not determinative.  If the statute has the effect of altering the legal consequences of past conduct, the statute is retroactive.  If the statute governs only procedure that is to be followed in cases subsequent to the enactment of the statute, the statute is prospective…” 

In the Court’s perception, the legal effect of past events is not impacted by the statutory change, merely the procedural presentation of evidence:

“We hold the amendment of Labor Code section 3212.1 effected a procedural change, and accordingly that the presumption is properly applied in the post-enactment adjudication of this claim.  We therefore annul the decision of the appeals board and remand the case for further proceedings.”

COMMENTS AND CONCLUSIONS:

This is a case with pretty limited application at least for this code section as most of the claims that might be affected by it are probably long since resolved.  I think most of the workers’ compensation community would have expected the statutory extension of presumption of injury for public safety sectors to be pretty “substantive”, especially given the virtual impossibility of overcoming the presumption.  However, based on this analysis provided, the Court makes an unwavering case for its interpretation. 

I did note the number of authorities cited for the Court’s analysis is very limited (essentially only 3 cases are cited to support the principle point). At least one of the cited cases, Elsner v. Uveges, while extensively cited, might actually be interpreted as being contrary to the Court’s holding. In Eisner, the California Supreme Court ruled a statute which shifted the burden from plaintiff to defendant on the issue of negligence per se, was a substantive change in the law, not merely procedural, and reversed a finding of negligence and award of damages.

I think it is probably safe to assume this case will probably be taken up to the next level to give the Supreme Court a shot at the interpretation and to see if the Court of Appeals interpreted the higher Court’s holding correctly.

© Copyright 2015 Shaw, Jacobsmeyer, Crain & Claffey PC. All rights reserved. Reprinted with permission.