Wednesday, February 19, 2014

Equity Has No Place In Presumptions

I've blogged before that presumptions in workers' compensation tend to prolong litigation and make for bad precedence, and a recent California case highlights that concern.

The First District Court of Appeals in California will decide whether a municipal employer had successfully rebutted the presumption of industrial causation for a novice police officer's colon cancer in light of evidence that the disease takes decades to develop.

In City of Paso Robles v. WCAB (Bigelow), No. A140531, the workers' compensation judge found that Daniel H. Bigelow's workplace exposure to known carcinogens was not reasonably linked to his cancer, since the panel Qualified Medical Evaluator said the latency period for colon cancer is longer than the four years that Bigelow had been on the City of Paso Robles police force.

Bigelow joined the police academy in Nov. 2005, and he was diagnosed with cancer just over six years later, in 2011.

The QME opined that it was likely that Bigelow had been exposed to benzine, a known carcinogen, during his time as a police officer. However the QME said there is no causal link between exposure to benzine, or any other known carcinogen, and the development of colon cancer. 

The doctor further testified that cancers in general have a latency period of between 15 to 20 years, and since Bigelow's employment with the City of Paso Robles did not fall within the latency period, Levine said he felt it was medically improbable that there was a relationship between this employment and Bigelow's cancer.

Since Bigelow had relied solely upon the presumption to establish causation, the WCJ ruled that he had not established his entitlement to benefits and ordered that he take nothing on his claim.

The Workers' Compensation Appeals Board disagreed and a unanimous panel rescinded the judge's findings on causation last November.

"[T]he mere absence of a study showing a link between exposure to carcinogens and the development of a certain type of cancer does not rebut the Section 3212.1 presumption of industrial causation," the WCAB panel opinion said.

The WCAB said that the Section 3212.1 presumption "may be rebutted by substantial medical evidence that proves that the latency period for the specific cancer at issue excludes industrial exposure to carcinogens as its cause," but since the QME admitted there are no studies showing a specific latency period for colon cancer, his testimony about the average latency periods for other types of cancer could not rebut the presumption of causation. 

The City appealed.

Labor Code Section 3212.1 provides fire and police personnel who develop cancer during the course of their career a presumption of compensability if they can show they were exposed to a known carcinogen while working.

An employer can rebut the presumption with evidence that the primary cause of the cancer was not the workplace and that the carcinogen to which the officer or firefighter has demonstrated exposure was not reasonably linked to the cancer.

In other words the employer needs to prove a negative - that an exposure in the work place doesn't result in cancer.

It is nearly impossible to prove that there is no cancerous exposure in the work place because nearly everything in life produces some cancerous exposure - just breathing the air in an automobile is a cancerous exposure, particularly if you drive frequently in congested traffic, or purchase a new car with that nice, plastic "new car" smell in ignorant bliss of the fact that smell is produced by the huge amount of hydro-carbon emissions from all of the interior plastics...

And, in many cases, the claimant's previous employers will fight among themselves about when the cancer developed as they seek to spread the cost of (or avoid entirely) liability for the claim.

The argument in favor of presumptions is that they reduce litigation by providing a directive regardless of the defenses.

But as we have seen time and time again, presumptions tend to exacerbate litigation, and all the while there is the injured worker trying to figure out who is going to pay for his cancer treatment, how the bills are going to be paid while he is not working, and dealing with the major life decisions confronting someone's mortality reality.

The only way to make a presumption truly a presumption is to make it conclusive - i.e. not rebuttable.

Employers won't buy that however because even though workers' compensation is a "no fault" system, responsibility is inherently a fault finding concept and who or what is responsible will drive nearly any rational person to explore some way of deflecting fault.

And what we end up with is what we would end up with if there was no presumption in the first place: an employee seeking a remedy for his or her malady and an employer seeking exculpation or at least deference of liability and payment.

The 1st DCA in this case may help provide more certainty in cancer presumption cases by drawing the clear line - if there is a 3201.1 claim then either there is conclusive evidence that the cancer was not caused by employment, or there isn't.

If the evidence isn't conclusive then the presumption stays.


That will clear the ambiguity of the cancer presumption. An employer may not feel it isn't fair or equitable - certainly the City of Paso Robles would have that feeling given that the claimant in this case worked there only 6 years.

But workers' compensation isn't about being fair. It's about 1) workers (with an apostrophe denoting the plural possessive) and 2) compensation (encompassing payment for medical care and indemnity).

There is nothing in that equation that talks about fair, just, equal or any other concept of equity.

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