If a peace officer develops or manifests cancer during his time on the force and can prove that he was exposed to a known carcinogen, then his cancer is presumed to be industrial. Labor Code section 3212.1(a), (b), and (d). Even minimal exposure is enough to satisfy an applicant’s burden.
If a peace officer is retired but develops or manifests cancer up to ten (10) years after the “last date actually worked in the specified capacity,” depending on his time on the force, then his cancer is presumed to be industrial. Labor Code section 3212.1(d).
While this sounds like an insurmountable presumption, the 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.” Labor Code section 3121.1(d).
There are three steps to disputing the presumption:
- Identify the Primary Site of Cancer
- Identify the Known Carcinogen
- Establish that there is No Reasonable Link Between the Cancer and the Known Carcinogen
Step 1: Identify the Primary Site of Cancer
In the matter of Zipton v. Workers’ Compensations Appeals Board (1990) 218 Cal.App.3d 980, the Court concluded that, without identification of the primary site of cancer, that the doctors’ opinions on causation would have been “highly speculative and conclusory.” The Court has held that the presumption created by Labor Code section 3212.1 requires an identifiable, primary site of cancer be found and supported, by the medical evidence.
Step 2: Identify the Known Carcinogen
A known carcinogen is defined by the International Agency for Research on Cancer or defined by the director. Labor Code section 3212.1(a), (b), and (d). Each of the known carcinogens identified by the International Agency for Research on Cancer (IARC) is listed in the monographs which include a chemical description and studies upon which the carcinogenic basis are founded.
Step 3: Proof of No Reasonable Link Between the Cancer and the Known Carcinogen
Defendant has the burden to establish by reasonable medical probability that there is not a logical connection between the exposure to the known carcinogen and cancer.” In Riverside Fire Protection District v. Workers’ Compensation Appeals Board (Smith) (1994) 23 Cal.App.4th 1120, 1127, the Court concluded that the phrase “reasonable link” has “a plain meaning which is clear on its face. Two things are reasonably linked if there is a logical connection between them.” The Court concluded that Labor Code section 3212.1 requires more “than the mere coincidence of exposure and cancer.”
There must be sufficient evidence to support a finding of the reasonable link between the alleged exposure and the primary site of cancer. It is the defendant’s burden is to prove by medical probability that there is no reasonable link between the applicant’s demonstrated exposure to known carcinogens during the employment and the development of the cancer.
One way to do that is to show that the latency period is a factor to be considered in determining whether there is a reasonable link between the cancer and the exposure.
Beware however, no known link is not proof of no reasonable link. However, just showing that there is no evidence of a reasonable link is insufficient to rebut the presumption created by Labor Code section 3212.1. An employer does not meet its burden merely by showing that no studies exist showing a positive link between exposure and the particular form of cancer. The absence of medical evidence linking a known carcinogen with a particular form of cancer simply represents a void of information, and cannot be considered proof a reasonable link does not exist. But a defendant may rebut the presumption if the defendant shows no connection exists between the carcinogenic exposure or that any such possible connection is so unlikely to be absurd or illogical.
A link that is merely remote, hypothetical, statistically improbable, or the like is not a reasonable link. The employer need not prove the absence of link to a scientific certainty; instead it must simply show that no such connection is reasonable. However, if medical studies are available showing that particular cancers have been shown not to be caused by certain carcinogens, such evidence if credited, would suffice to rebut the presumption created by Labor Code section 3212.1.