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Sameyah v. Los Angeles County Employees Retirement Assocation

November 19, 2010

KAREN SAMEYAH, PLAINTIFF AND APPELLANT,
v.
LOS ANGELES COUNTY EMPLOYEES RETIREMENT ASSOCATION, DEFENDANT AND RESPONDENT.



APPEAL from a judgment of the Superior Court of Los Angeles County. David P. Yaffe, Judge. Affirmed. (Los Angeles County Super. Ct. No. BS117677).

The opinion of the court was delivered by: Chaney, J.

CERTIFIED FOR PUBLICATION

Karen Sameyah appeals from a judgment entered after the trial court denied her petition for peremptory writ of mandate. By her petition, Sameyah sought an order compelling the Board of Retirement (Board) of the Los Angeles County Employees Retirement Association (LACERA) to reverse its decision denying her application for service-connected survivor death benefits. In January 2004, Sameyah's husband died of Burkitt's lymphoma, after serving for seven years as a deputy sheriff with the Los Angeles County Sheriff's Department. Sameyah received a non-service-connected survivor's allowance.

Exercising its independent judgment, the trial court found, and the parties agree, that Sameyah established that her husband's lymphoma is presumed to have arisen out of and in the course of his employment, within the meaning of the cancer presumption set forth in Government Code section 31720.6, subdivision (a).*fn1 The court also found that Sameyah demonstrated that her husband was exposed to known carcinogens as a result of his performance of the duties of a deputy sheriff, within the meaning of subdivision (b) of section 31720.6. Ultimately, the court concluded that the Board rebutted the cancer presumption by making the requisite showing outlined in subdivision (c) of section 31720.6--by establishing the primary site of the lymphoma and by demonstrating that the carcinogens to which David Sameyah was exposed as a result of the performance of his job duties were not reasonably linked to his Burkitt's lymphoma.

We find that substantial evidence supports the trial court's decision denying Sameyah's petition. In deciding this case, we consider and apply principles set forth in appellate decisions interpreting other rebuttable presumptions, including the "heart trouble" presumption in section 31720.5 and the workers compensation cancer presumption in Labor Code section 3212.1. There are no appellate cases resolving disputes under section 31720.6.

BACKGROUND*fn2

I. David Sameyah's Work History and Job-Related Exposures

David Sameyah began working as a deputy sheriff in June 1996. After completing his training, he went to work at North County Correctional Facility (NCCF). There, he secured and transported inmates throughout the jail facility and he also worked at a desk. Sameyah recalled her husband telling her that he was present when a tear gas bomb was used to stop a "brawl" in the jail. He was exposed to the gas.*fn3

In or about 1999 or 2000, Mr. Sameyah went to work at Lennox Station as a patrol officer.*fn4 According to his supervisor, Mr. Sameyah spent about 90 percent of his work time outside of the office in the field. He was tasked with putting gas in his patrol car. He also was responsible for apprehending suspects. Crimes in the area he served typically involved drugs and violence. Mr. Sameyah's supervisor recalled that there were occasions when his deputies had arrested individuals who were HIV positive and/or homeless.

According to Sameyah, when her husband came home from work, his arms were covered with dust and his uniform was dirty and had black stains on it that looked like soot. The uniform smelled like gasoline and exhaust. Mr. Sameyah told her that the dirt and stains on his uniform were from jet fuel, gasoline and apprehending suspects.

Mr. Sameyah's supervisor estimated that Lennox Station was located about 500 yards from the 105 Freeway and about one mile from the 405 Freeway, near Los Angeles International Airport. When Mr. Sameyah's supervisor was in the parking lot outside the station, he could hear the traffic from the freeway and the jets, and he could "feel the jet stream." He noticed "[b]lack oily spots" on his car that sometimes smelled like lighter fluid.

There was a generator at Lennox Station that could be used to supply power to the station in the event of an outage. On the occasions that it was activated and operating, it produced smoke that smelled like diesel exhaust. At times, Mr. Sameyah was asked to go to the generator to find out why it had activated on its own.

Mr. Sameyah's supervisor believed that "there was asbestos pretty much throughout" Lennox Station. He recalled health inspections at the station concerning asbestos.

Mr. Sameyah also worked as the range master of the mobile shooting range at Marina Station. At least quarterly, deputies were required to qualify their guns. This required them to fire about 30 rounds. At the range, which was an enclosed trailer, Mr. Sameyah was exposed to lead from the gun powder in the air. He was responsible for cleaning up the casings which were ejected when the guns were fired. The casings had gunpowder residue on them. Mr. Sameyah worked at the range "on a quarterly basis."

II. Illness and Diagnosis of Burkitt's Lymphoma

In or about December 2002, David Sameyah experienced abdominal pain. An examination and testing indicated that he had an ulcer and elevated Helicobacter pylori bacteria. After treatment, his abdominal pain continued.

In March 2003, a biopsy of the ulcer indicated gastric lymphoma which was associated with Mr. Sameyah's elevated Helicobacter pylori bacteria level. Mr. Sameyah had a large gastric mass. He was treated with chemotherapy, radiation, a partial gastrectomy and a stem cell transplant. It was later determined that Mr. Sameyah had Burkitt's lymphoma.

Mr. Sameyah worked as a deputy sheriff at Lennox Station until July 2003. He died on January 7, 2004. He was 47 years old.

III. Denial of Application for Service-Connected Death Benefits

In April 2004, Sameyah filed an application with LACERA for service-connected survivor death benefits. She stated that her husband was exposed to carcinogens in the course of his work at NCCF, Lennox Station and the shooting range.

LACERA asked James A. Padova, M.D. to review David Sameyah's medical records and evaluate whether his death related to his work as a deputy sheriff. Dr. Padova is a certified medical oncologist, who has diagnosed and treated cancer patients for more than 30 years. On December 1, 2004, Dr. Padova issued a report concluding that Mr. Sameyah's death "from the complications of a high-grade Burkitt's type lymphoma" was "non-service connected." Dr. Padova opined: "Based on the information that I reviewed, I do not believe there is evidence to incriminate any work-related exposures in the causation of this particular patient's malignant lymphoma and his death. First of all, he first became symptomatic from his gastric lymphoma some time during the year 2002, within five years from his first date of employment. It is well known that cancer causing agents usually require a relatively long period known as the latency period, to be present between the time of the injurious exposure and the clinical detection of the cancer in question. That latency period is usually in the order of 10-15 years or more. . . .

"In fact, Burkitt's lymphoma has been shown to be associated with various and relatively specific gene changes that lead to the development of this type of lymphoma. Herpes viruses such as the Epstein-Barr virus have been shown to cause this type of lymphoma. Helicobacter pylori infection within the stomach has been shown to cause other types of stomach lymphomas. It is likely that in Mr. Sameyah's case, that one of these infectious agents contributed to the causation of the lymphoma that ultimately caused his death . . . ."

LACERA determined that the cancer presumption in section 31720.6 was rebutted by evidence demonstrating that the carcinogens to which David Sameyah was exposed as a result of the performance of his job duties were not reasonably linked to Burkitt's lymphoma. LACERA also found that the primary site of the cancer was the stomach. Establishment of the primary site of the cancer is a prerequisite for rebutting the cancer presumption. (Gov. Code, § 31720.6, subd. (c).) In February 2005, the Board denied Sameyah's application and continued the non-service-connected survivor's allowance she had been receiving. Sameyah appealed the decision.

On May 30, 2005, Sameyah's expert, Jeffrey A. Hirsch, M.D., issued a report in which he concluded that David Sameyah's illness was "industrial in origin." Dr. Hirsch is board-certified in internal medicine. He is not an oncologist. After a lengthy review of the medical ...


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