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City of South San Francisco v. Workers' Compensation Appeals Board

California Court of Appeals, First District, Fifth Division

February 26, 2018


         W.C.A.B. No. ADJ2151993

          Richard, Thorson, Graves & Royer, Daniel E. Graves and Henry J. Gage III for Petitioner.

          No appearance for Respondent Workers' Compensation Appeals Board.

          Thomas, Lyding, Cartier, Arnone & Daily and Mark A. Cartier for Respondent City of Pacifica.

          BRUINIERS, J.

         Richard Johnson worked successively as a firefighter for the City of South San Francisco (CSSF) and for the City of Pacifica (Pacifica). He developed a nasopharyngeal cancer. Labor Code section 3212.1[1" name="ftn.FN1" id= "ftn.FN1">1] establishes a presumption that cancer manifesting during and for a specified period following employment in certain public safety positions, including firefighters, arose out of and in the course of that employment. Section 5500.5, subdivision (a) (section 5500.5(a)), however, limits employer liability for a cumulative injury to the employer who employed the applicant during the one year preceding the earliest of (1) the date of injury or (2) the last date of injurious exposure to the hazards that caused the injury. Thus, either CSSF or Pacifica would be potentially responsible for compensation for the entire injury, dependent upon the proper application of section 5500.5(a).

         CSSF settled a workers' compensation claim by Johnson for this injury and petitioned for contribution from Pacifica. An arbitrator denied the petition, ruling that evidence of the latency period for the cancer suffered by Johnson showed the injurious exposure under section 5500.5(a) occurred during Johnson's earlier employment with CSSF. The Workers' Compensation Appeals Board (WCAB) upheld and adopted the arbitrator's order.

         CSSF petitioned for review, contending the WCAB, in adopting the arbitrator's determination, erroneously utilized a more lenient preponderance evidentiary standard in applying section 5500.5(a), rather than the more stringent cancer presumption rebuttal standard provided in section 3212.1. We have granted review, but affirm the determination of the WCAB.

         I. Background

         Johnson worked as a firefighter for CSSF from March 1973 to October 2001, and for Pacifica from November 2001 on. He was exposed to known carcinogens during each period of employment. In 2007, he was diagnosed with nasopharyngeal cancer, which had metastasized and caused a growth in his neck. The cancer was found to have initially manifested itself during 2005, when Johnson first noted symptoms of nasal obstruction. The disability was found to have occurred in 2007, during Johnson's employment with Pacifica.[2]

         Johnson filed a workers' compensation claim against Pacifica. He invoked the presumption of section 3212.1 that cancer manifesting during (or within certain periods following) employment as a firefighter that involves exposure to known carcinogens arose out of and in the course of that employment. (§ 3212.1, subd. (b).)[3] The presumption may be rebutted if the employer shows the primary site of the cancer has been identified and “the carcinogen to which the member has demonstrated exposure is not reasonably linked to the disabling cancer.” (§ 3212.1, subd. (d).) Pacifica denied liability and joined CSSF as a party to the case.[4] CSSF eventually settled with Johnson for all of his cancer-related compensation, and it then sought contribution from Pacifica.

         The contribution case was submitted to arbitration based on a documentary record. (See § 5275, subd. (a)(2).) CSSF and Pacifica stipulated to “a single cumulative trauma period for purposes of assessing liability. The effect of this is that one party will bear full responsibility for the benefits paid....” The issues submitted to the arbitrator concerned application of sections 3212.1 and 5500.5. Section 5500.5 provides that, in Johnson's circumstances, “liability for... cumulative injury claims... shall be limited to those employers who employed the employee during a period of [one year] immediately preceding either [(1)] the date of injury, as determined pursuant to Section 5412, or [(2)] the last date on which the employee was employed in an occupation exposing him or her to the hazards of the... cumulative injury, whichever occurs first.” (§ 5500.5(a).)[5] The arbitrator determined the date of injury was in 2007. The dispositive issue was whether the last injurious exposure resulting in the injury occurred during CSSF or Pacifica employment.

         The medical evidence before the arbitrator consisted of written reports and deposition testimony by Ira Fishman, M.D., the agreed medical examiner in Johnson's case against Pacifica.[6] Fishman acknowledged there was little epidemiological literature regarding occupational risks for nasopharyngeal cancer, firefighting had “only a possible link” to the cancer, [7] the cause of the cancer was unknown, and no studies established a latency period for the cancer. However, he testified that the latency period for exposure-related solid tumors generally was a minimum of 10 years.[8] Based on that latency period, he opined that Johnson's last harmful carcinogen exposure occurred in 1996 or 1997, and that Johnson's six-year employment with Pacifica was not causally linked to his cancer.

         The arbitrator found Fishman's evidence credible and persuasive. He found that Fishman “made a convincing case” that the CSSF exposure was the causative factor in Johnson's development of cancer, given the latency period involved, and that CSSF, while emphasizing deficiencies in Fishman's opinions, had not offered any contrary medical opinion. The arbitrator further found that Fishman's opinion provided “substantial evidence” on the question of latency, and that “the weight of the evidence shows [CSSF] employment as being within the latency period, and there is no medical evidence showing that either [CSSF] fell outside the injurious period vis-à-vis latency or that the Pacifica employment was the proper time frame given the latency period for nasopharyngeal cancer.”

         The arbitrator denied CSSF's petition for contribution. In doing so, he distinguished between the enhanced burden an employer must meet under section 3212.1 to rebut liability to the employee for the injury (i.e., establishing the absence of a “reasonable link” between the cancer and the industrial exposure to the carcinogen), and what he found to be the applicable preponderance of the evidence standard in a contribution action between employers (i.e., whether it is more likely that the cancer arose from one or another period of employment). The arbitrator wrote: “Had [Johnson] only been employed by Pacifica, with no prior public safety employment, it is likely that on this record of six years employment with Pacifica, the exposure to carcinogens and the operation of the presumption, that he would have established a compensable injury case as to Pacifica.... [However, t]he fact that there is exposure with both [CSSF] and Pacifica shifts the factual determination solely to which employment is injurious.... [¶]... [B]etween Pacifica and [CSSF], the stronger case is that the latency period implicates the [CSSF] employment.”

         CSSF petitioned for reconsideration. The arbitrator wrote a report and recommendation defending his original award (Award) and recommending denial of the petition. The WCAB adopted the arbitrator's report and recommendation and denied CSSF's petition for reconsideration. CSSF petitioned for review (§ 5950), arguing that (1) the arbitrator acted in excess of his power by failing to apply the “no reasonable link” standard of proof for rebuttal of the section 3212.1 cancer presumption; and (2) the arbitrator's findings of fact and award are unreasonable and not supported by substantial evidence.[9]

         II. Discussion

         “When considering a petition for a writ of review on a decision of the WCAB, ‘ “ ‘ “[we] must determine whether the evidence, when viewed in light of the entire record, supports the award of the WCAB. [We] may not reweigh the evidence or decide disputed questions of fact, ” ' ” ' ” unless we determine the WCAB's factual findings to be “ ‘ “ ‘ “unreasonable, illogical, improbable or inequitable when viewed in light of the overall statutory scheme.” ' ” ' ” (City of Long Beach v. Workers' Comp. Appeals Bd. (Garcia) (2005) 126 Cal.App.4th 298');">126 Cal.App.4th 298, 310.) “[U]nless clearly erroneous[, ] the WCAB's interpretation of the workers' compensation laws is entitled to great weight.” (Genlyte Group, LLC v. Workers' Comp. Appeals Bd. (2008) 158 Cal.App.4th 705, 714; Griffith v. Workers' Comp. Appeals Bd. (1989) 1260');">209 Cal.App.3d 1260, 1263-1264 [“contemporaneous administrative construction of a statute by the [WCAB], as the administrative agency charged with its enforcement and interpretation, while not necessarily controlling, is of great weight; and courts will not depart from such construction unless it is clearly erroneous or unauthorized”].) “Nevertheless, issues of statutory interpretation and questions of law are subject to our independent review, and we need not defer to the WCAB's legal determinations where they are contrary to the plain meaning of the statute or prevailing case law.” (Contra Costa County v. Workers' Comp. Appeals Bd. (2015) 240 Cal.App.4th 746, 756.)

         A. The ...

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