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California: How to Defeat the Cancer Presumption in Labor Code Section 3212.1

June 09, 2020 (6 min read)

Publisher's Note: This article was corrected on June 22, 2020 to reflect that Subsection(d) of 3212.1 was amended in 2010 to extend the 60-month period to 120 months.  

Reminder: Blais is a panel decision and not binding precedent.

The presumption of compensable injury set forth in Labor Code Sections 3212 et seq. have vexed many a practitioner. There is a general belief that it is next to impossible to rebut one of those presumptions. After all, they are intended to protect the rights of certain public safety officers, like firefighters, whose jobs expose them to significant risks of injury not experienced by other employees. Yes, the presumption of compensable injury gives a bit of a head start to that covered public safety employee, but that doesn’t mean that the employer should throw in the towel and concede injury. Take a look at Blais v. State of California, 2020 Cal. Wrk. Comp. P.D. LEXIS --. In that case, an Appeals Board panel (panel) found that defendant properly rebutted the Labor Code Section 3212.1 cancer presumption through the reporting and deposition testimony of the panel qualified medical evaluator (PQME).

Section 3212.1 is one of those statutes that typically requires several close reads to understand fully. Its requirements have been summarized as follows: First, the employee must establish that he/she is a firefighter or police officer who falls within the ambit of subdivision (a) of the statute. Second, the employee must demonstrate exposure to a known carcinogen as identified in specified standards. Third, the employee must demonstrate that his/her cancer has developed or manifested itself during the period when he/she was in active service, or if service has terminated, for a period not to exceed 60* months from the last date of service in the specified capacity. These three elements are the employee’s burden of proof, and when established, the presumption of compensability arises. At that point, the burden shifts to the defendant. The defendant can rebut the presumption by demonstrating that (1) the primary site of the cancer has been established, and (2) by evidence that the exposure to the recognized carcinogen is not reasonably linked to the disabling cancer. (Faust v. City of San Diego (2003) 68 Cal. Comp. Cases 1822 (Appeals Board en banc).)

*Subsection (d) of 3212.1 was amended in 2010 to extend the 60-month period to 120 months.

In its application of the elements of section 3212.1 to the evidence presented, the panel finds that Blais carried his burden of proof. From April 13, 2009 through December 30, 2016, Blais was employed as a fire captain by CalFire. As a firefighting member of CalFire, Blais was clearly a member of the class of employees covered by section 3212.1. In the fall of 2016, Blais developed a persistent cough and a thoracentesis was performed. The test results confirmed metastatic adenocarcinoma. Blais’ oncologist diagnosed him with metastatic breast cancer. Blais had a history of work-related exposure to formaldehyde, smoke, fumes, dust and burned debris, including plastics. Although Blais did not present evidence that formaldehyde is a known carcinogen, the panel took judicial notice pursuant to Evidence Code section 452(h) that formaldehyde is designated as a group one carcinogen by the International Agency for Research on Cancer. These three factors—Blais’ coverage as an active firefighter, the manifestation of breast cancer while in active service, and his exposure to a known carcinogen—were sufficient to establish the initial burden, and to shift the burden to defendant to dispute the presumption of compensability.

CalFire’s burden was to show the primary site of the cancer and that the carcinogen that Blais was exposed to is not reasonably linked to the breast cancer. CalFire did so through the PQME. The PQME, Dr. Lonkey, obtained a history that Blais was previously diagnosed with breast cancer in July of 2008, while employed as an active firefighter by the City of Atwater. Blais underwent a right-sided mastectomy and received chemotherapy. He was able to return to his usual and customary duties in April 2009. At the time of his return to work, the City of Atwater Fire Department had come under control of CalFire, and Blais began working for CalFire performing the same services he had previously performed for the City of Atwater. Blais’ cumulative trauma claim against the City of Atwater was settled on December 9, 2014 by a Stipulated Award of 18% permanent disability with further medical treatment.

Dr. Lonkey identified the primary site of cancer as breast cancer. He agreed that exposure to formaldehyde could be the cause of the breast cancer but concluded that any exposure Blais had to formaldehyde while employed by CalFire was not reasonably linked to the current manifestation of his cancer. Specifically, Dr. Lonkey opined that Blais’ current manifestation of breast cancer is actually a recurrence and further development of his original right-sided breast cancer. He explained that because the latency period for development of breast cancer is 10 to 20 years, it would not be reasonably medically probable that Blais would have developed a new tumor and have it become metastatic in one year. He also explained that the cells taken from Blais’ lung during the thoracentesis were metastatic breast cancer cells, not lung cancer cells. Also, there was no evidence that Blais’ left breast had developed a cancer mass. This, Dr. Lonkey stated, is significant, because before cancer becomes metastatic, there must be a mass that grows into a blood vessel or lymphatic channel, which then breaks off and is carried to a different location. Further, at the time of Blais’ 2008 mastectomy, a biopsy revealed two positive lymph nodes, revealing dormant but present cancer. According to Dr. Lonkey, it is not unusual for some positive cells to survive chemotherapy and develop into metastatic cancer sites.

Dr. Lonkey’s reports and deposition testimony showed that there was no reasonable link between Blais’ work-related exposure because of (1) the latency period between exposure and manifestation (10 to 20 years); (2) the fact that lymph nodes removed at the time of Blais’ 2008 mastectomy were positive; (3) the fact that cells removed during the 2016 thoracentesis were metastatic breast cancer cells and not lung cancer cells; and (4) the absence of a mass in the left breast. All of these factors show that there was no reasonable link between any exposure Blais had while actively engaged in firefighting while employed by CalFire to a known carcinogen and the manifestation of metastatic breast cancer.

There are several key factors that we can take away from this panel decision. Foremost, don’t think rebutting a section 3212.1 presumption is an insurmountable task—it isn’t. In many instances it is relatively easy for an applicant to carry the initial burden of proof. Demonstrating coverage within the class of employees covered by the statute is generally straightforward, as is demonstrating the manifestation of cancer during the period of service. Even identifying exposure to a known carcinogen has become less daunting, since much more is known about various occupations and the types of possible carcinogenic exposures that might occur. Nonetheless, defendants can and do rebut the presumption, as this panel decision illustrates. Keep in mind that the defendant’s burden does not require showing that there is no possible link between the industrial exposure and the manifestation of cancer, but rather that a link is not reasonable. (City of Long Beach v. Workers’ Comp. Appeals Bd. (2005) 126 Cal. App. 4th 298 [70 Cal. Comp. Cases 109].) Credible medical evidence that identifies the site of the cancer and explains why there is no reasonable link between the carcinogenic exposure and the disabling cancer will defeat the presumption.

Practitioners should check the subsequent history of any cases before citing to them.

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