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California: Progressive Insidious Diseases

April 20, 2023 (3 min read)

Here’s a brief summary of a recent noteworthy panel decision that addresses the issue of progressive insidious diseases.


Copyright 2023 by Matthew Bender & Company, Inc.

Elizabeth Arbogast, Applicant v. California Highway Patrol, legally uninsured, administered by State Compensation Insurance Fund, Defendants

W.C.A.B. No. ADJ9509417—WCAB Panel: Commissioners Capurro, Razo, Snellings

Workers’ Compensation Appeals Board (Board Panel Decision)

Opinion Filed April 5, 2023

Publication Status:  CAUTION:  This decision has not been designated as a “significant panel decision” by the Workers’ Compensation Appeals Board. Practitioners should proceed with caution when citing to this panel decision and should also verify the subsequent history of the decision, as these decisions are subject to appeal. WCAB panel decisions are citeable authority, particularly on issues of contemporaneous administrative construction of statutory language [see Griffith v. WCAB (1989) 209 Cal. App. 3d 1260, 1264, fn. 2, 54 Cal. Comp. Cases 145]. However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers’ compensation judges [see Gee v. Workers’ Comp. Appeals Bd. (2002) 96 Cal. App. 4th 1418, 1425 fn. 6, 67 Cal. Comp. Cases 236]. While WCAB panel decisions are not binding, the WCAB will consider these decisions to the extent that it finds their reasoning persuasive [see Guitron v. Santa Fe Extruders (2011) 76 Cal. Comp. Cases 228, fn. 7 (Appeals Board En Banc Opinion)]. LexisNexis editorial consultants have deemed this panel decision noteworthy because it does one or more of the following: (1) Establishes a new rule of law, applies an existing rule to a set of facts significantly different from those stated in other decisions, or modifies, or criticizes with reasons given, an existing rule; (2) Resolves or creates an apparent conflict in the law; (3) Involves a legal issue of continuing public interest; (4) Makes a significant contribution to legal literature by reviewing either the development of workers’ compensation law or the legislative, regulatory, or judicial history of a constitution, statute, regulation, or other written law; and/or (5) Makes a contribution to the body of law available to attorneys, claims personnel, judges, the Board, and others seeking to understand the workers’ compensation law of California.

Disposition: Reconsideration is granted, and the July 13, 2017 Findings and Award is affirmed in part and amended in part.

WCAB Jurisdiction—Permanent Disability—Reservation of Jurisdiction for Progressive Insidious Diseases—WCAB, after granting reconsideration, affirmed WCJ’s finding that applicant who suffered industrial injury to multiple body parts while employed as California Highway Patrol officer from 8/13/84 through 5/13/2014 suffered insidious progressive disease in form of ovarian cancer, such that WCAB’s reservation of jurisdiction over applicant’s permanent disability beyond jurisdictional limitations in Labor Code §§ 5410 and 5804 was warranted in accordance with General Foundry Service v. W.C.A.B. (Jackson) (1986) 42 Cal. 3d 331, 721 P.2d 124, 228 Cal. Rtpr. 243, 51 Cal. Comp. Cases 375, and based on factors in Ruffin v. Olson Glass Co. (1987) 52 Cal. Comp. Cases 335 (Appeals Board En Banc Opinion), when WCAB found that applicant’s cancer was caused by remote and undramatic work exposure, that she was exposed to vehicular fumes and fires, that her cancer had long latency from time of exposures to ultimate diagnosis, and that although it was unclear whether applicant’s cancer was currently worsening, qualified medical evaluator found there was at least 50 percent chance cancer would recur and cause additional impairment, and this potential for worsening was sufficient to justify reservation of jurisdiction. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 8.03, 8.04, 32.02[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, § 7.30, Ch. 14, §§ 14.04, 14.06[3].]