What the panel ordered
WCAB affirms April 20, 2020 Joint Findings and Order except amends to find injury AOE/COE to lungs in form of cancer, correct date of injury June 11, 2018, industrial causation established, presumption not rebutted; defers other issues and returns matter to WCJ for further proceedings
Petition for Reconsideration granted to further study factual and legal issues; WCJ's Joint Findings and Order of April 20, 2020, reviewed and partially amended by WCAB panel decision after reconsideration
What was disputed, and how it came out
Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.
The WCAB found substantial medical evidence from QME Dr. Jonathan the applicant that the lung cancer developed during the period covered by the Labor Code section 3212.1 presumption and that the defendant did not rebut this presumption.
From the decision · page 2We have considered the allegations in the Petition and the Answer, and the contents of the Report. Based on our review of the record, and for the reasons discussed below, we will affirm the F&O except that we will amend the F&O to find that the applicant sustained injury arising out of and occurring in the course of employment to his lungs in the form of cancer, and resulting in his death on September 13, 2019 (Finding of Fact 1); that pursuant to Labor Code section 5412, the correct date of injury, in case number ADJ12638806, is June 11, 2018 (Finding of Fact 6); that applicant met the burden of proof to establish industrial causation of the lung cancer in case number ADJ12014246 (Finding of Fact 7); and that defendant did not rebut the Labor Code section 3212.1 presumption of injury in case number ADJ12638806 (Finding of Fact 8). Based thereon, we will amend the Order to defer all other issues raised by the parties at the March 2, 2020 trial, and we will return the matter to the WCJ for further proceedings consistent with this opinion.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
QME Dr. Jonathan the applicant's opinion that the lung cancer developed in June 2008 during employment exposure to combustion products and diesel exhaust
Favours Applicant prevailed
This opinion was substantial evidence that the cancer developed during the Labor Code section 3212.1(d) time period extension, supporting the presumption of injury and causation in favor of the applicant.
From the decision · page 1Applicant contends that the reports from internal medicine qualified medical examiner (QME) Jonathan C. the applicant, M.D., are substantial evidence that the applicant developed the lung cancer during the period of the Labor Code section 3212.1(d) time period extension, so the cancer presumption was not rebutted, and the presumption is applicable to the applicant's injury claim.
What the panel did with the medical opinions
The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.
Dr. the applicant opined that the lung cancer developed in June 2008 during the claimant's employment exposure to combustion products and diesel exhaust, with the first manifestation in June 2018, supporting the Labor Code section 3212.1 presumption of injury.
Dr. the applicant's opinion was substantial evidence that the lung cancer developed during the period of the Labor Code section 3212.1(d) extension and was not rebutted by defendant.
From the decision · page 1Applicant contends that the reports from internal medicine qualified medical examiner (QME) Jonathan C. the applicant, M.D., are substantial evidence that the applicant developed the lung cancer during the period of the Labor Code section 3212.1(d) time period extension, so the cancer presumption was not rebutted, and the presumption is applicable to the applicant's injury claim.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 3212.1
Labor Code section 3212.1 presumption of injury for cancer developing or manifesting during employment
The presumption applies if there is substantial medical evidence that the cancer began developing during covered employment.
From the decision · page 2We have considered the allegations in the Petition and the Answer, and the contents of the Report. Based on our review of the record, and for the reasons discussed below, we will affirm the F&O except that we will amend the F&O to find that the applicant sustained injury arising out of and occurring in the course of employment to his lungs in the form of cancer, and resulting in his death on September 13, 2019 (Finding of Fact 1); that pursuant to Labor Code section 5412, the correct date of injury, in case number ADJ12638806, is June 11, 2018 (Finding of Fact 6); that applicant met the burden of proof to establish industrial causation of the lung cancer in case number ADJ12014246 (Finding of Fact 7); and that defendant did not rebut the Labor Code section 3212.1 presumption of injury in case number ADJ12638806 (Finding of Fact 8). Based thereon, we will amend the Order to defer all other issues raised by the parties at the March 2, 2020 trial, and we will return the matter to the WCJ for further proceedings consistent with this opinion.
Labor Code section 5412
Correct date of injury pursuant to Labor Code section 5412
The correct date of injury is the date of first manifestation of cancer symptoms, June 11, 2018.
From the decision · page 6FINDINGS OF FACT 1. Decedent, the applicant, while employed during the period from August 10, 1981, through December 31, 2006, as a traffic officer, Occupational Group Number 490, at San Diego, California by the State of California - California Highway Patrol, sustained injury arising out of and in the course of employment to his lungs in the form of cancer, and resulting in his death on September 13, 2019.
What proof carried it
The evidence the panel weighed, by kind.
QME Dr. Jonathan the applicant's medical reports and opinions
From the decision · page 1Applicant contends that the reports from internal medicine qualified medical examiner (QME) Jonathan C. the applicant, M.D., are substantial evidence that the applicant developed the lung cancer during the period of the Labor Code section 3212.1(d) time period extension, so the cancer presumption was not rebutted, and the presumption is applicable to the applicant's injury claim.
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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