ADJ12048035 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied.

Defendant filed a petition for reconsideration of the WCJ's Findings of Fact & Award dated May 24, 2021, which was denied by the WCAB panel.

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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.

AOE/COEApplicant prevailedparotid gland

The WCJ found that the applicant met the presumption of industrial causation under Labor Code 3212.1 and that the defendant failed to rebut the presumption with substantial medical evidence, including the opinion of Dr. Hirsch, which was found not to rebut the presumption.

From the decision · page 3On June 14, 2021, the Defendant filed a timely and verified petition for reconsideration dated June 14, 2021, alleging that the undersigned WCJ erred in his Findings of Fact & Award dated May 24, 2021. The Defendant contends that the independent medical review reports and deposition testimony of Jeffrey A. Hirsch, M.D., finding that the Applicant did not sustain industrial injury, should be binding on the parties notwithstanding Dr. Hirsch's failure to rebut the presumption of compensation pursuant to Labor Code § 3212.1. In addition, the Defendant contends that Dr. Hirsch's opinion that the Applicant is permanently totally disabled is not substantial medical evidence because his cancer is not in remission.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Applicant worked as firefighter exposed to known carcinogens including smoke, fumes, diesel exhaust, and ultraviolet radiation.

Favours Applicant prevailed

Established applicant met initial burden for cancer presumption under Labor Code 3212.1.

From the decision · page 5In this case, the Applicant worked as a firefighter for the County of Los Angeles during the period August 2, 1985 to February 28, 2019, [MOH/SOE, 05/11/2021, 2:9-10, 4:24-25] and, in his job description by Jeffrey Hirsch, M.D., in his independent medical evaluation report dated August 22, 2014, [Joint Exhibit "A"] on page two, the Applicant, as a firefighter "ha[d] breathed smoke, fumes, particulates, and superheated gases... [as well as] diesel exhaust, particulates, and fumes in the fire stations in which he lived... [and] ha[d] been exposed to ultraviolet radiation throughout his career."

Applicant first noticed lump on neck in July 2018 and was diagnosed with cancer thereafter.

Favours Applicant prevailed

Established manifestation date within statutory time frame for cancer presumption.

From the decision · page 5The Applicant testified that he "first noticed that he had a lump on his neck in July 2018... [and a]fter consulting with a physician, he was informed that it was cancerous." [MOH/SOE, 05/11/2021, 5:2-4]

Defendant failed to rebut presumption with substantial medical evidence; Dr. Hirsch's opinion on no reasonable link was rejected.

Favours Applicant prevailed

Supported finding of industrial causation for cancer.

From the decision · page 7However, Dr. Hirsch's opinion regarding "no reasonable link" appeared to be based on his claim that there was a lack of medical literature suggesting any causal relationship. This alone cannot form a proper basis to determine that his opinion is substantial medical evidence given that a presumption cannot be rebutted by showing that there are no studies linking exposure to a carcinogen and the development of the type of cancer at issue. [County of Ventura v. Workers' Comp. Appeals Bd. (Bastian) 75 Cal. Comp. Cases 513, 516; City of Compton v. Workers' Comp. Appeals Bd. (Branscomb) 76 Cal. Comp. Cases 991, 995 (writ denied)]

Dr. Hirsch's permanent disability rating of 75% WPI based on terminal cancer and extensive neck dissection was found credible and substantial medical evidence.

Favours Applicant prevailed

Supported finding of 100% permanent disability.

From the decision · page 9Accordingly, based on Dr. Hirsch's medical report dated December 7, 2020, on page nine, found to be credible and substantial medical evidence, notwithstanding the contention by the Defendant to be otherwise, the Applicant's permanent disability is rated as follows:

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.

QMERejected

Concluded the applicant's parotid tumor was non-industrial but resulted in 100% permanent disability; opined that the applicant was exposed to carcinogens but could not reasonably link exposure to the tumor; rated 75% whole person impairment due to terminal cancer.

Dr. Hirsch's opinion that there was no reasonable link between carcinogen exposure and the tumor was found not to rebut the presumption of industrial causation under Labor Code 3212.1.

From the decision · page 3On June 14, 2021, the Defendant filed a timely and verified petition for reconsideration dated June 14, 2021, alleging that the undersigned WCJ erred in his Findings of Fact & Award dated May 24, 2021. The Defendant contends that the independent medical review reports and deposition testimony of Jeffrey A. Hirsch, M.D., finding that the Applicant did not sustain industrial injury, should be binding on the parties notwithstanding Dr. Hirsch's failure to rebut the presumption of compensation pursuant to Labor Code § 3212.1. In addition, the Defendant contends that Dr. Hirsch's opinion that the Applicant is permanently totally disabled is not substantial medical evidence because his cancer is not in remission.

QMERelied upon

Rated 75% whole person impairment based on terminal cancer and extensive neck dissection; opinion found credible and substantial medical evidence for permanent disability rating.

The WCJ found Dr. Hirsch's permanent disability rating credible and substantial medical evidence despite defendant's challenges.

From the decision · page 9Accordingly, based on Dr. Hirsch's medical report dated December 7, 2020, on page nine, found to be credible and substantial medical evidence, notwithstanding the contention by the Defendant to be otherwise, the Applicant's permanent disability is rated as follows:

ADJ12048035 · August 13, 2021

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

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