The Cancer Presumption for Public
Safety Officers
California Labor Code Section 3212.1.
St. Francis Hospital QME Lecture Series
Ira B. Fishman, M.D., QME.
Saturday, February 4, 2012
THE CANCER PRESUMPTION
• Like apportionment, the cancer presumption,
as contained in California Labor Code Section
3212.1, is a medical legal construct that has
no independent basis in scientific reality.
• There does not exist a separate body of
scientific literature to assist in the medical
legal determination of cancer causation for
the cohort to whom this section applies.
THE CANCER PRESUMPTION
• In other words, the cancer presumption
statute is an intersection of:
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Political lobbying by state employees
Legislative intent and action
Court decisions
Science but mostly to the extent influenced by
the other listed factors.
THE LEGAL DEFINITION OF A
PRESUMPTION
• A presumption in the legal sense intended is
not evidence but a conclusion that the law
requires to be drawn when some other fact is
established.
• Rather than evidence, a presumption is a legal
construct that aids the judicial system in
determining the facts from the evidence
presented.
DEFINITION OF A PRESUMPTION
• Therefore, it may be erroneous to consider that a
presumption is evidence and imposes on one
party a higher burden of proof that is required.
• On the other hand, if the plaintiff finds a
reasonable link between occupational carcinogen
exposures and cancer, that is enough to support a
finding that the defendant has not met his or her
burden to prove that there is “no reasonable link”
THE CANCER PRESUMPTION
The unique role of the QME in the decision making
process utilizing the cancer presumption:
1. Extends beyond the standard medical reasoning
that doctors use to draw scientific conclusions
about disease. (See Fain case subsequent).
2. As a result, the medical legal determination of
injury causation is not the same as the scientific
or medical determination of causation.
THE CANCER PRESUMPTION
• The original Legislative intent of the Section
3212.1 was probably to acknowledge the
unique burden of certain public safety
employees, i.e. various categories of police
officers and firefighters, in responding quickly
to unexpected emergencies that exposed
them to known carcinogens with or without
benefit of adequate protective equipment.
THE CANCER PRESUMPTION
• The statute was originally conceived such that
the state employed public safety officer had
the burden of proving that a particular
carcinogen (Usually IARC Group 1 or
recognized by Director Division of Industrial
Accidents, CCR Title 8, Section 330,
www.dir.ca.gov/Title8/330.html ) to which he
had been exposed was reasonably linked to
the cancer in question.
THE CANCER PRESUMPTION
• The original statute, passed as AB 3011 in
1981-1982, gave the burden or proof to the
worker who needed to demonstrate
carcinogen exposure and a “reasonable link”
between the occupational exposure and the
cancer in question
• No quantitative threshold was expressed in
the original statute nor ever in subsequent
case law
THE CANCER PRESUMPTION
• The phrase “reasonable link” does not appear
anywhere else in the Labor Code.
• Eventually, in 1994, the California Appeals
Court definitely considered the legal definition
of “reasonable link” in the Riverview Fire
Protection District v WCAB (Smith) 23 Cal App
4th 1120 (28 Cal Reptr 2d601) 59 Cal Comp
Cases 180.
REASONABLE LINK
• In Riverview, the Court stated that:
• Two things are reasonably linked if there is a
“logical connection” between them.
• The worker needed to demonstrate something
more than coincidence of occupational exposure
and cancer.
• In other words, demonstration of a “reasonable
link” required more than chance association but
less than the preponderance of the evidence.
REASONABLE LINK
• Therefore, throughout the 1980s and 1990s,
the injured public safety officer with cancer
was required to demonstrate convincingly to
the courts a nexus between the type of cancer
and occupational exposure to a known
carcinogen that was alleged to have caused
the cancer.
• Such a burden of proof was exceedingly
difficult to meet for rare cancers.
PAPAN AMENDMENT
• In 1999, Lou Papan, a California legislator,
championed the “Papan amendment” to Section
3212.1 after a firefighter in his district was unable
to demonstrate a reasonable link between his
rare cardiac angiosarcoma and occupational
carcinogen exposures.
• From prior judicial experience, it was well known
that rare cancers failed the reasonable link test
because of a general lack of medical literature
being available for such cancers.
PAPAN AMENDMENT
• To the consternation of industrial insurance
carriers and municipalities, AB 539 eliminated for
the injured public safety officer the “reasonable
link” language previously contained in Section
3212.1.
• After AB 539, it was no longer the injured
worker’s burden of proof to demonstrate a
reasonable link between cancer and exposure to
a known carcinogen; that nexus requirement was
totally removed by the State Legislature.
SECTION 3212.1
• After the 1999 Papan amendment was passed,
California Labor Code Section 3212.1 now
read as follows:
NEW SECTION 3212.1
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a) This section applies to all of the following:
(1) Active firefighting members, whether volunteers, partly paid,
or fully paid, of all of the following fire departments:
(A) A fire department of a city, county, city and county,
district, or other public or municipal corporation or political
subdivision.
(B) A fire department of the University of California and the
California State University.
(C) The Department of Forestry and Fire Protection.
(D) A county forestry or firefighting department or unit.
(2) Active firefighting members of a fire department that serves a
United States Department of Defense installation and who are
certified by the Department of Defense as meeting its standards for
firefighters.
NEW SECTION 3212.1
• (3) Peace officers, as defined in Section 830.1, subdivision (a)
• of Section 830.2, and subdivisions (a) and (b) of Section 830.37, of
• the Penal Code, who are primarily engaged in active law
enforcement
• activities.
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(4) (A) Fire and rescue services coordinators who work for the
• Office of Emergency Services.
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(B) For purposes of this paragraph, "fire and rescue services
• coordinator" means a coordinator with any of the following job
• classifications: coordinator, senior coordinator, or chief
• coordinator.
NEW SECTION 3212.1
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(b) The term "injury," as used in this division, includes cancer,
including leukemia, that develops or manifests itself during a period
in which any member described in subdivision (a) is in the service
of the department or unit, if the member demonstrates that he or
she
was exposed, while in the service of the department or unit, to a
known carcinogen as defined by the International Agency for
Research
on Cancer, or as defined by the director.
(c) The compensation that is awarded for cancer shall include full
hospital, surgical, medical treatment, disability indemnity, and
death benefits, as provided by this division.
NEW SECTION 3212.1
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(d) The cancer so developing or manifesting itself in these cases
shall be presumed to arise out of and in the course of the
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. This presumption shall be extended to a member
following termination of service for a period of three calendar
months for each full year of the requisite service, but not to exceed
120 months in any circumstance, commencing with the last date
actually worked in the specified capacity.
NEW SECTION 3212.1
• (e) The amendments to this section enacted during the 1999
portion
• of the 1999-2000 Regular Session shall be applied to claims for
• benefits filed or pending on or after January 1, 1997, including, but
• not limited to, claims for benefits filed on or after that date that
• have previously been denied, or that are being appealed following
• denial.
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(f) This section shall be known, and may be cited, as the William
• Dallas Jones Cancer Presumption Act of 2010.
THE CONCEPT OF LATENCY
• For the discussion of occupational cancer,
latency is generally defined as time from the
first injurious carcinogen exposure to the first
clinical manifestation of cancer.
• In Leach v West Stanislaus County Fire
Protection District (2001) 29 Cal Workers
Comp Rptr, 188,189 (Appeals Board Panel)
latency for solid tumors was somewhat and
arbitrarily defined as 10 years.
THE CONCEPT OF LATENCY
• Subsequent case law has generally continued to
use the 10 year threshold for latency without
much further discussion.
• Faust v City of San Diego (2003) (Appeals Board
en banc) 68 Cal. Comp. Cases, 1822.
• City of Long Beach v WCAB (Garcia), 126 Cal.App
4th
• Even though the latency for hematologic
neoplasms is generally less (5-7 years), this issue
to my knowledge has never been addressed by
the courts subsequent to Leach.
THE CONCEPT OF LATENCY
• The Courts have consistently failed to consider
arguments for shorter latency periods even as
different circumstances may apply to
individual solid cancer cases.
• The 10 year cut off for latency has stubbornly
persisted to the present as a rock solid
method available to the defense to rebut the
cancer presumption.
• Law v WCAB (2003) 68 Cal Comp Cases 497.
THE CONCEPT OF THRESHOLD
• There are two theoretical concepts regarding the
amount of carcinogen exposure required to cause
cancer.
• The first is the one molecule theory that
postulates one molecule of exposure to a
carcinogen such as benzene is theoretically
sufficient to induce malignant mutation of a cell
into a cancer cell which then begins reproducing
and causes a cancer to develop and grow.
THE CONCEPT OF THRESHOLD
• The second theory postulates that there are
levels below which acute and/or chronic
carcinogen exposure does not cause cancer.
• Public policy routinely relies on the concept of
threshold to fix permissible levels of
carcinogen exposure for workers.
• Science seems to favor the concept that there
is no safe limit of exposure to at least certain
carcinogens such as benzene.
THE CONCEPT OF THRESHOLD
• With regard to the cancer presumption, for
unclear reasons, the courts have never clearly
established what is legally sufficient carcinogen
exposure to cause cancer.
• Perhaps this is another hidden reason for the
existence of the cancer presumption; public
safety officers are never prospectively followed
during their careers for any determination of
quantitative carcinogen exposure.
THE CONCEPT OF THRESHOLD
• As best as I can determine, it was initially a
low level WCAB decision, the Leach case that,
in addition to fixing the 10 year latency period
for carcinogenesis, also concluded that the
demonstration by the worker of minimal
exposure to a carcinogen in the workplace was
sufficient to satisfy the applicant’s burden of
proof for Section 3212.1. No specific level of
actual exposure needs to be demonstrated
THE CONCEPT OF THRESHOLD
• Not directly, but by analogy and never
considered in case law to date, is the fact that
the concept of minimal exposure to a
carcinogen satisfying applicant burden of
proof for Section 3212.1 may be contrary to
Supreme Court findings in other cases that
dismiss “infinitesimal” or “inconsequential”
employment contribution to incapacity.
FAUST v CITY OF SAN DIEGO
• Faust v City of San Diego (2003) (Appeals Board
en banc), 68 Cal Comp Cases 1822 definitely
addressed the implications of the Papan
amendment passed in 1999-2000
• To successfully litigate under Section 3212.1, the
applicant must be an active police
officer/firefighter as defined in beginning of
3212.1
• Must demonstrate (minimal) exposure to a
known human carcinogen as defined by IARC
(Group 1)
FAUST v CITY OF SAN DIEGO
• The cancer developed or manifested itself during
the time period when the injured officer was in
active service ( or depending on length of active
service, for up to 60 months after last active date
of service, recently amended to 120 months)
• Once the injured officer has demonstrated
his/her burden of proof, the cancer presumption
arises and the burden of proof shifts to the
employer.
FAUST v CITY OF SAN DIEGO
• To successfully rebut the presumption, the
employer must show two things:
• Evidence that the primary site of cancer has
been established.
• That exposure to the known carcinogen is not
reasonably linked to the disabling cancer.
• Therefore, when the primary site of cancer is
unknown, the presumption is conclusive and
cannot be rebutted.
FAUST v. CITY OF SAN DIEGO
• To rebut the cancer presumption, the defendant
must prove that there is no reasonable link
between the carcinogen and the cancer.
• Merely demonstrating that there is no evidence
demonstrating a reasonable link is not sufficient
to rebut the cancer presumption.
• Euerle v City of Santa Clara 38 CWCR 12 (WCAB
Panel, 2009)
CITY OF LONG BEACH v. WCAB
(GARCIA)
• City of Long Beach v WCAB (Garcia) (2005), 126
Cal. App 4th, 315 generally affirmed the en banc
Faust decision (2003).
• As opposed to other presumptions, the link may
be contraverted only in a specific and limited
way: proof of the cancer’s primary site and
absence of reasonable link.
• No reasonable link includes establishing that the
latency period of the manifestation of the specific
cancer excludes the exposure as the cause of the
applicant’s cancer (Law, 2003)
CITY OF LONG BEACH v. WCAB
(GARCIA)
• For rebuttal, there must be no logical connection
(reasonable link)between carcinogen exposure
and cancer or the possible connection is so
unlikely as to be absurd or illogical.
• Medical studies that show particular cancers not
caused by certain carcinogens may be relevant.
• Quantity or length of time of carcinogen exposure
may have been too small or brief to have had a
deterimental effect.
CITY OF LONG BEACH v. WCAB
(GARCIA)
• The exact language of the Garcia Court is:
• “…We agree that the burden of proof placed
upon the employer is a difficult one. However,
we disagree that the standard is impossible to
meet…. For example, perhaps it would be
possible for an employer to show that the
quantity of the carcinogen to which the employee
was exposed or the length of time of exposure,
was too small or too brief to have any
detrimental effect.”
FAIN v WCAB
• A recent Court of Appeal 5th district decision examined the
requirement that the applicant demonstrate exposure to a
known carcinogen.
• In this case, not certified for publication, a police officer
with over thirty four years of service was determined by an
AME physician to never have been exposed to carcinogens
in the workplace.
• The Court of Appeals was forced to agree with the WCAB
that the applicant’s burden of proof for applying the cancer
presumption had not been met.
• In my opinion, the AME presented an inadequate
occupational history to the Court; this case is not and
should not be citable.
FUTURE MEDICAL LEGAL DIRECTIONS
• Considering latency on an individual, case by
case basis (followup to Law).
• Hematologic neoplasms have different latency
periods compared to solid tumors (no case
law)
• Can threshold actually be used to rebut the
cancer presumption (suggested by Garcia)
• Synergistic effect of multiple carcinogen
exposures (sparsely discussed in case law)
APPLYING THE CANCER PRESUMPTION
AFTER RETIREMENT
• The courts have uniformly concluded that the phrase “develops or
manifests” was deliberately and meaningfully placed in the cancer
presumption by the Legislature ( I have my doubts).
• Therefore, it is sometimes possible to backdate the onset of a
cancer before actual diagnosis if one can successfully argue that the
applicant exhibited clinical manifestations of cancer, even if
undiagnosed.
• Such symptoms can then cause the first clinical manifestation of
cancer to fall in the window allowed for application of the cancer
presumption after retirement (Darling case)
• “Window” after retirement recently extended to up to 120 months
depending on length of antecedent service.
APPENDIX
• I have appended to these lecture notes a
complete list of IARC carcinogens, Groups 1-4.
• Please note that, for the purpose of discussing
the cancer presumption, only Group 1
carcinogens, known to be carcinogenic to
humans, are relevant as specified by Section
3212.1.
• IRA B. FISHMAN, M.D., Q.M.E.
• irafishmanmd.com
• irafishman@irafishmanmd.com