What the panel ordered
The Board affirmed the WCJ's Findings of Fact & Order dated September 29, 2022, denying defendant's petition for reconsideration and upholding the presumption of compensability for applicant's throat cancer.
Defendant sought reconsideration of the WCJ's Findings of Fact & Order issued on September 29, 2022, which found applicant sustained industrial throat cancer and that defendant failed to rebut the presumption of compensability under Labor Code section 3212.1(d). The WCJ filed a Report recommending denial of reconsideration, which the Board adopted and incorporated.
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.
The Board found that the applicant sustained an industrial injury to his throat in the form of throat cancer and that the defendant failed to rebut the presumption of compensability under Labor Code section 3212.1(d). The defendant's medical evidence, including QME Dr. Mahmoudi's opinion, did not meet the burden to establish no reasonable link between the carcinogen exposure and the cancer, as absence of medical literature alone is insufficient to rebut the presumption.
From the decision · page 1Defendant seeks reconsideration of the Findings of Fact & Order (F&O) issued on September 29, 2022, by the workers' compensation administrative law judge (WCJ). The WCJ found that applicant sustained an industrial injury to his throat in the form of throat cancer and that defendant failed to rebut the presumption of compensability pursuant to Labor Code section 3212.1(d).2 Defendant contends that the medical evidence demonstrates non-industrial human papilloma virus (HPV) solely caused applicant to develop his throat cancer, thereby rebutting the section 3212.1(d) presumption.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant was employed as a firefighter from August 10, 2005 to December 22, 2020, with exposure to carcinogenic diesel exhaust fumes.
Favours Applicant prevailed
This established the initial burden for the presumption of compensability under Labor Code section 3212.1(d).
From the decision · page 2Applicant, while employed from August 10, 2005 to December 22, 2020, as a fire captain, claimed to have sustained an industrial injury to his throat in the form of throat cancer from toxic exposure to carcinogens during his employment. He began his employment on August 10, 2005. (Minutes of Hearing/Summary of Evidence (MOH/SOE), 08/01/2022, 5:7.) His job duties comprised suppressing residential and commercial fires exposing him to firefighting chemicals such as aqueous film-forming foam and various burning materials. (MOH/SOE, 08/01/2022, 5:21-25.)
Defendant failed to rebut the presumption by proving no reasonable link between the carcinogen exposure and the throat cancer.
Favours Applicant prevailed
Defendant's medical evidence, including QME Dr. Mahmoudi's opinion, was insufficient as it relied on absence of medical literature rather than affirmative evidence disproving causation.
From the decision · page 7Here, QME Dr. Mahmoudi opined that the medical literature determined that the carcinogenic properties of diesel engines cause lung cancer and that HPV causes throat cancer. QME Dr. Mahoudi further opined that there is no medical evidence supporting any reasonable link between diesel engine fumes and throat cancer.
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.
Dr. Mahmoudi opined that diesel exhaust causes lung cancer but there is no medical evidence supporting a reasonable link between diesel fumes and throat cancer. He acknowledged HPV as a major cause but not the sole cause of the applicant's throat cancer. He stated that the absence of medical literature does not prove no reasonable link.
Dr. Mahmoudi's opinion was considered but found insufficient to rebut the presumption because it relied on lack of medical studies rather than affirmative evidence disproving a link.
From the decision · page 7Here, QME Dr. Mahmoudi opined that the medical literature determined that the carcinogenic properties of diesel engines cause lung cancer and that HPV causes throat cancer. QME Dr. Mahoudi further opined that there is no medical evidence supporting any reasonable link between diesel engine fumes and throat cancer.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 3212.1(d)
Presumption of compensability under Labor Code section 3212.1(d) for firefighters diagnosed with cancer within 120 months of employment.
Applicant demonstrated exposure to known carcinogens and defendant failed to rebut the presumption by proving no reasonable link between exposure and cancer.
From the decision · page 4Before the presumption may be applied, section 3212.1(b) requires that applicant demonstrate that he or she was exposed to an identified known carcinogen. The applicant must establish that the exposure was to a "known carcinogen" with evidence, generally documentary, that the carcinogen is defined as such by the International Agency for Research on Cancer, or otherwise so "defined by the director." The carcinogens "defined by the director" are those regulated by the director of the Department of Industrial Relations.
What proof carried it
The evidence the panel weighed, by kind.
Applicant's credible testimony and expert medical evidence established exposure to known carcinogens during employment as a firefighter.
From the decision · page 5Here, applicant, while employed during the period August 10, 2005 to December 22, 2020 as a firefighter, sustained exposure to carcinogenic diesel exhaust fumes, developed swelling on his neck in August 2020 and received his cancer diagnosis in December 2020. Therefore, the presumption of compensability applies to his workers' compensation claim.
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
- The injured worker is not named here, and the case caption is not printed. Physicians appear as the decision names them, because a medical opinion is an act in a public proceeding.
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