Police officer’s cancer diagnosed 17 years after the last worked is ruled presumptively compensable

This is a Board Panel decision.

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

The applicant worked as a police officer from 1982 to 2001.  He received a disability retirement in 2003.

The applicant did not notice symptoms until 2018.  He was diagnosed with bladder cancer.  He filed an application alleging his employment as a police officer caused his cancer and asserted the cancer presumption under Labor Code section 3212.1.

The case went to trial. The Workers’ Compensation Judge (WCJ) noted that section 3212.1 indicated that the presumption only applied if it occurred within the last ten years the applicant actually worked. The applicant in this case had not worked during the last ten years. 

The applicant saw an Agreed Medical Examiner (AME) who indicated that the applicant’s cancer was nonindustrial but there was a latency period of 20 years.

The WCJ used the latency period to determine that the cancer would have developed in 1998, 20 years before being diagnosed.  Therefore, it was while he was employed and the presumption applied. The cancer was compensable.

The defendant filed a petition for reconsideration. The Workers’ Compensation Appeals Board (WCAB) issued a Board panel decision. They reviewed the statute and case law. They determined that where substantial medical evidence established that the cancer began developing during employment, the presumption applies and the case is compensable.

Blair v. City of Torrance

 Editor: Harvey Brown
Samuelsen, Gonzalez, Valenzuela & Brown
3501 Jamboree Suite 602
Newport Beach, Ca 92660
(949) 689-5586

Aggravation of industrial injury versus exacerbation of industrial injury defined by WCAB

This is a Writ Denied case

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

The applicant injured his low back while doing training. The applicant was evaluated by an Agreed Medical Examiner (AME). The AME determined that the injury was an exacerbation of a prior non-industrial back injury.

The case went to trial and the Workers’ Compensation Judge (WCJ) found the applicant suffered a temporary exacerbation of a chronic, preexisting low back injury. Defendant petitioned for reconsideration claiming an exacerbation is not an industrial injury.

The Workers’ Compensation Appeals Board (WCAB) indicated that the applicant sustained an “aggravation” of his prior injury rather than an “exacerbation”.

The WCAB explained the difference between an “exacerbation” and an “aggravation”. The acceleration, or “lighting up” or “aggravation” is regarded as an injury for workers’ compensation purposes. (Tanenbaum v. IAC) An aggravation of a pre-existing condition is an industrial injury.

An exacerbation is not an industrial injury. The AME using the term exacerbation in this case, was using an incorrect theory regarding the legal basis for what is an injury. His opinion was not substantial evidence.

The applicant in this case suffered an aggravation which was compensable.

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