Cancer presumption applied to firefighter after amendment to Labor Code

This is a published appellate court case

This is a very significant case for workers’ compensation principles.

The applicant was a firefighter with the Department of Defense who developed stomach cancer. He died of stomach cancer in 2007. The widow filed for death benefits in 2009.

An Agreed Medical Examiner (AME) stated that the stomach cancer could have been due to exposures of carcinogens in the workplace. The AME concluded that if the presumption applied, the cancer would be industrially related.

The presumption was extended to the Department of Defense effective January 1, 2009. The sole issue in this case was whether the presumption applied in this case.

The Workers’ Compensation Judge (WCJ) indicated that the applicant failed to meet the burden of proof on industrial causation. The Workers’ Compensation Appeals Board (WCAB) on reconsideration decided that the applicant was not a part of a qualifying fire department since the legislation did not take effect until 2009.

The appellate court indicated that the fact that the death occurred prior to the effective date of the statute is not determinative. When a statute is found to be substantive as opposed to procedural it can have a retroactive effect. So they ruled that the WCAB erred and remanded.

Case: Lazano v. WCAB (SCIF)

Harvey Brown
3501 Jamboree Rd. Suite 602
Newport Beach, CA 92660

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