ADJ15505680 · October 21, 2022

Applicant met initial burden to raise the presumption under Labor Code section 3212.1; defendant failed to rebut the presumption as it did not prove absence of a reasonable link between the cancer and industrial exposure to carcinogens; medical evidence did not disprove the link between exposure and endometrial cancer.

From the decision · page 1Applicant seeks reconsideration of an arbitrator's Findings and Order of July 27, 2021, wherein it was found that, while employed as a police officer during a cumulative period ending August 28, 2019, applicant did not sustain industrial injury in the form of endometrial cancer and to her gastrointestinal system. In so finding, the arbitrator found that defendant rebutted the cancer presumption codified at Labor Code section 3212.1.

Applicant was a police officer exposed to known carcinogens including urban exhaust, benzene, diesel, and outdoor air pollution during employment.

Favours Applicant prevailed

This established applicant's initial burden under Labor Code section 3212.1 to raise the cancer presumption.

From the decision · page 3Here, applicant carried her initial burden. As noted above, police officers are expressly named in Penal Code section 830.1(a), and, thus, applicant was clearly within the class of employees coming under the scope of section 3212.1. Applicant's endometrial cancer manifested itself while she was still in active service. At trial, applicant submitted an unrebutted "offer of proof" that if called to testify she would testify that her job exposed her to "urban exhaust/smog, benzene, gasoline, lead, polyaromatic hydrocarbons, diesel combustion byproducts, smoke, fumes, heated gases from fires and chemicals in meth/drug labs." (Amended Arbitrator's Minutes of Arbitration at p. 3.)

Defendant failed to present substantial medical evidence disproving a reasonable link between the carcinogens and endometrial cancer.

Favours Applicant prevailed

Failure to rebut the presumption led to finding industrial injury under Labor Code section 3212.1.

From the decision · page 4substantial medical evidence that diesel exhaust, outdoor air pollution, and benzene are not

Dr. Hirsch opined that only estrogens and estrogenic compounds are known environmental agents linked to endometrial adenocarcinoma; he did not find evidence linking benzene, diesel exhaust, or other hydrocarbons to this cancer type.

Dr. Hirsch's report was considered in determining whether the presumption under Labor Code section 3212.1 was rebutted.

From the decision · page 4In his October 12, 2020 report, agreed medical evaluator internist Jeffrey A. Hirsch, M.D.

Labor Code section 3212.1

Labor Code section 3212.1 presumption and burden shifting framework

Applicant must establish coverage and exposure to known carcinogens; defendant must rebut by proving no reasonable link between exposure and cancer.

From the decision · page 2Turning to the merits, as a peace officer as defined in Penal Code section 830.1(a), which includes "police officer," applicant was subject to Labor Code section 3212.1, which states in pertinent part:

City of Long Beach v. Workers' Comp. Appeals Bd. (Garcia) (2005) 126 Cal.App.4th 298

Employer's burden to prove absence of reasonable link to rebut presumption

Employer must prove absence of reasonable link; absence of studies is not sufficient to rebut presumption.

From the decision · page 5However, in order to rebut the section 3212.1, "the employer must prove the absence of a reasonable link between the cancer and industrial exposure to the carcinogen. A mere showing of an absence of medical evidence that the carcinogen has been shown to cause the particular cancer contracted by the employee is not sufficient to rebut the presumption." (City of Long Beach v. Workers' Comp. Appeals Bd. (Garcia) (2005) 126 Cal.App.4th 298, 305-306 [70 Cal.Comp.Cases 109].) "An employer does not meet its burden by showing that no studies exist showing a positive link between the exposure and the particular form of cancer. That no studies exist perhaps because they have not been undertaken or completed, or because their results were inconclusive does not prove or disprove anything. The absence of medical evidence linking a known carcinogen with a particular form of cancer simply represents a void of information, and cannot be considered proof a reasonable link does not exist." (Garcia, 126 Cal.App.4th at p. 316.) Dr. Hirsch did not identify any studies that affirmatively disprove the link between benzene, diesel exhaust, or outdoor air pollution, to endometrial cancer.

Applicant's unrebutted offer of proof of exposure to urban exhaust, benzene, gasoline, lead, polyaromatic hydrocarbons, diesel combustion byproducts, smoke, fumes, heated gases from fires and chemicals in meth/drug labs.

From the decision · page 3Here, applicant carried her initial burden. As noted above, police officers are expressly named in Penal Code section 830.1(a), and, thus, applicant was clearly within the class of employees coming under the scope of section 3212.1. Applicant's endometrial cancer manifested itself while she was still in active service. At trial, applicant submitted an unrebutted "offer of proof" that if called to testify she would testify that her job exposed her to "urban exhaust/smog, benzene, gasoline, lead, polyaromatic hydrocarbons, diesel combustion byproducts, smoke, fumes, heated gases from fires and chemicals in meth/drug labs." (Amended Arbitrator's Minutes of Arbitration at p. 3.)