Wednesday, July 27, 2011

Peace Officer Case Illustrates the Danger in Presumptions

I think California leads all other states in the nation with various presumptions for finding injury in a workers' compensation system. There is pending legislation making its way through the legislature, without much opposition I might add, that would give privately employed nurses an AOE/COE presumption with regards to certain infectious diseases (AB 375, Skinner).

I have opined in the past that I did not feel this was good policy. A very recent Workers' Compensation Appeals Board (WCAB) case illustrates why this is not good policy.

One of the existing presumptions is for cancer in police officers (Labor Code 3212.1).

Subsection (b) of 3212.1 states:

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.

Subsection (a)(3) applies the presumption of injury to:

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.

The issue in Thompson v. LAUSD, No. ADJ6822166 is whether a school district police officer is one of those employees under Labor Code 3212.1 entitled to a presumption of injury for cancer. The Board found that Thompson was not because the Labor Code was specific in the statutory references as to exactly which employees are "peace officers" despite the fact that a school district officer gets peace officer training, has a marked car, carries a gun, has powers of arrest, wears a uniform and otherwise acts, looks, and feels like a police officer.

From a purely legal standpoint, the WCAB's opinion is correct. Thompson is not a "peace officer" as statutorily defined.

But from a functional standpoint, is there any difference in the duties of a school district officer and any other peace officer?

Presumptions of injury are artificial. Their purpose is purely political - to satisfy the public perception that  certain classes of workers have made a case of exemplary sacrifice such that they deserve special treatment.

And I have no problem with the concept, except that where does it stop?

For instance, California Labor Code 3212.11 provides a presumption of injury for life guards who contract skin cancer either during employment (which must be for at least 3 consecutive months in a calendar year - presumably to cover the summer months) or within a period of up to 5 years from last date of service.

3212.11 applies only to public service life guards as defined in that section - why not career privately employed life guards? Presumably they would have the same exposures, if not more, than public service guards. And only to "skin cancer" - which is not defined in the code section. Why not other cancers that may be contracted through exposure to polluted waters, for example?

I know I'm being a bit extreme, but certainly not far fetched. In the world of litigation, the limits of applying a presumption are restricted only by the imagination and creativity of the lawyers articulating an interpretation that may, or may not, have been considered by the Legislature.


  1. I completely agree that the whole presumption concept is a slippery slope. On the School Police Police, however, I can see a distinction. Regular Police officers must go where the problem is. That might be a truck accident/chemical spill, operating drug lab, poisoned dog, etc. A School District Police Officer is primarily limited to controlling order in school, arresting the occasional drug possessor, or warding off an armed assault on a kindergarten. Equally dangerous on occasion, but not so inclined to carcinogenic exposure as the full-spectrum patrol/motor/bomb disposal officers might be. I think broad presumptions are naturally flawed ab initio, but I do not think this was a bad place to draw the line.

  2. Thanks for the comment WCABDEFENSE! I understand your argument regarding the differentiation between regular police and school district officers - makes sense.

  3. The presence of workers' comp presumptions appears to confer a reward/bonus on a privileged class.
    By making it part of workers compensation, it hides and obfuscates the remuneration of the class from legitimate analysis.
    Forcing workers comp to be a partner in "gaming" the civil service pay system taints and dishonors comp's mission.

  4. Thanks for the comment smack. Presumptions are a very sensitive area. For the most part I don't think that they are thoroughly vetted and thought through as to the overall implications, and they arise out of political pressure more than any other reason. They can be particularly burdensome to small employers, e.g. municipalities and/or volunteer fire departments, etc.