ADJ11290690 · May 16, 2022

The WCJ and WCAB found no substantial medical evidence to determine a specific latency period for the AML cancer, and the date of injury was set based on the last date of injurious exposure, June 18, 2017, with the cumulative trauma period from June 18, 2016 to June 18, 2017. The Petition for Reconsideration challenging this was denied.

From the decision · page 4Codefendant questioned the date of injury, alleging that the latency period determines the date of injury. The WCJ ruled that there was no substantial medical evidence to find a latency period in this case and Oak River filed a Petition for Reconsideration of that issue on March 15, 2022.

Applicant had a 25-year history of exposure to benzene and other chemicals as a painter.

Favours Applicant prevailed

This long exposure period supported the medical opinions that the AML was caused by cumulative exposure and that latency period could not be specifically determined.

From the decision · page 4Oak River argues that the Findings and Award are not supported by the medical reports of Dr. Brautbar and Dr. Ahdab as neither are substantial medical evidence. However, they only focus on the issue of latency period. There are no arguments disputing the industrial AOE/COE finding as to the AML. Both Dr. Brautbar and Dr. Ahdab indicate that the AML was caused by his 25 year history of working as a painter and being exposed to benzene and other chemicals from the paint. Defendant's arguments do not refute that. Instead, they focus exclusively on the latency period argument. Petitioner states that Dr. Brautbar finds that latency cannot be determined in this case since the applicant has been a painter for his employer for 25 years. Petitioner says that the articles attached to Dr. Brautbar's report offer evidence of the fact that there is a method for finding a latency period. Yet, Dr. Brautbar reports that he cannot determine what the latency period is.

Both Dr. Brautbar and Dr. Ahdab agreed that the latency period for the AML could not be determined with reasonable medical probability.

Favours Applicant prevailed

The WCJ and WCAB relied on these consistent medical opinions to reject the Petition for Reconsideration challenging the date of injury based on latency period.

From the decision · page 5There is nothing in his reporting or in his testimony that reflects a lack of substantially. To the contrary, rather than speculate on the latency period and causation, Dr. Brautbar honestly stated that it could not be determined in this case.

Symptoms began and diagnosis was made in June 2017; applicant learned condition was work related in April 2018.

Favours Applicant prevailed

These dates established the date of injury period and supported the WCJ's finding for the cumulative trauma claim period from June 18, 2016 to June 18, 2017.

Dr. Brautbar opined that the applicant's AML was caused by his 25-year history of exposure to benzene and other chemicals as a painter, but he could not determine a specific latency period for the cancer.

The doctor stated that latency could not be determined due to the long exposure period and lack of specific exposure data.

From the decision · page 4Oak River argues that the Findings and Award are not supported by the medical reports of Dr. Brautbar and Dr. Ahdab as neither are substantial medical evidence. However, they only focus on the issue of latency period. There are no arguments disputing the industrial AOE/COE finding as to the AML. Both Dr. Brautbar and Dr. Ahdab indicate that the AML was caused by his 25 year history of working as a painter and being exposed to benzene and other chemicals from the paint. Defendant's arguments do not refute that. Instead, they focus exclusively on the latency period argument. Petitioner states that Dr. Brautbar finds that latency cannot be determined in this case since the applicant has been a painter for his employer for 25 years. Petitioner says that the articles attached to Dr. Brautbar's report offer evidence of the fact that there is a method for finding a latency period. Yet, Dr. Brautbar reports that he cannot determine what the latency period is.

Dr. Ahdab agreed that the AML was caused by the entire period of employment exposure and that the latency period could not be determined with reasonable medical probability.

Dr. Ahdab testified that the latency question is cumulative and cannot be pinpointed to a specific time, and that speculation would be required to determine it.

From the decision · page 5His opinion is mirrored by that of Dr. Ahdab who found on his own that the entire period of employment was the cause of his cancer and that the latency period could not be determined with reasonable medical probability. Defendant argues that Dr. Ahdab is displeased withthe bureaucratic process and has a prejudicial view that caused him to fail to make a clear determination of the latency period. Unfortunately, we simply cannot force Dr. Ahdab to provide an opinion when the evidence does not support such a finding. He states several times that in order to do so he would simply be required to speculate. In his deposition of September 27, 2021, he testified as follows:

McAllister v. WCAB

Industrial causation is reasonably probable based on the applicant's long-term exposure to hazardous chemicals in the workplace, even without scientific certainty of latency period.

The court held that scientific certainty is not required for a medical opinion to be substantial evidence supporting industrial causation.

From the decision · page 6"A medical opinion is not required to be predicated on scientific certainty. In McAllister v. WCAB, a firefighter died of lung cancer. The appeals board found that the claim was not compensable because the record did not disclose sufficient evidence as to the toxicity of the smoke inhaled, the amount of the decedent's exposure to smoke or the manner in which smoke inhalation may have caused lung cancer. Specifically, the appeals board found that there was no convincing evidence to show that the smoke firemen commonly inhale contained the same substances as those in cigarette smoke or polluted air, and that the doctor's opinion supporting industrial causation was based on facts not in the record. The California Supreme Court, however, annulled the decision.

Credibility of Dr. Brautbar and Dr. Ahdab's consistent opinions on causation and latency period

From the decision · page 5There is nothing in his reporting or in his testimony that reflects a lack of substantially. To the contrary, rather than speculate on the latency period and causation, Dr. Brautbar honestly stated that it could not be determined in this case.