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Pete Romo worked as a firefighter for three different fire departments. He was a volunteer firefighter for Marinwood from 1989 to 1991 and the San Antonio Volunteer Fire District in Sonoma County from 2002 to 2006. From 2006 through trial of his WCAB case, he was employed full time as a paid firefighter for the City of Mill Valley. While working for Mill Valley, Romo was diagnosed with prostate cancer.

Romo filed a claim for workers’ compensation benefits with each of the three fire departments for which he had worked. Mill Valley and San Antonio stipulated that the statutory presumption that cancer suffered while employed as a firefighter arises out of the employment would apply to them if the elements set forth in labor code section 3212.1 were proven.

Marinwood contested the application of the presumption. It was established in the 1950s as an all-volunteer fire department. By the 1980s, it had a paid fire chief and two paid professional firefighters for each shift. At the time Romo was a volunteer firefighter there, Marinwood had a total of seven paid firefighters and 24 volunteer firefighters.

The WCJ concluded that Romo was “an active volunteer firefighting member of [Marinwood] from mid-1989 to early 1991 within the meaning of Labor Code sections 3212.1 and 3361” and that he “is entitled to the extension of the presumption under Labor Code section 3212.1, since he is within 120 months of the ‘last date actually worked in the specified capacity.’ ” The WCAB denied Marinwood’s Petition for Reconsideration.

The Court of Appeal affirmed the WCAB in the published decision of Marinwood Community Services v WCAB (Ramos)

Section 3352 excludes certain categories of persons from the term “[e]mployee” as used in the workers’ compensation statutes. Subdivision (i) of that section generally excludes volunteers. Section 3361 is a nuanced exception to this exclusion for “Each member registered as an active firefighting member of any regularly organized volunteer fire department…” Marinwood contends it is not (and was not when Romo was a volunteer firefighter there) a “regularly organized volunteer fire department” within the meaning of section 3361.

The Court of Appeal concluded that the language “volunteer fire department” in section 3361 is ambiguous in regard to whether it extends to a department comprised predominantly, but not exclusively, of volunteers. “The WCAB’s interpretation of section 3361 is reasonable, and we give it weight. Its interpretation is consistent with the purpose of the statutory scheme.”

Marinwood next contends the WCAB misconstrued section 3212.1 presumption terms that it “shall be extended to a member following termination of service for a period of three calendar months for each full year of the requisite service, but not to exceed 120 months in any circumstance, commencing with the last date actually worked in the specified capacity.” Marinwood argues the above-quoted sentence should be applied separately to each employer for whom a firefighter worked.

The WCJ and WCAB interpreted the language in subdivision (d) “last date actually worked in the specified capacity” to mean the last day worked in the capacity of a firefighter for any employer. The Court of Appeal agreed and concluded that “the WCAB’s interpretation of section 3212.1 in this and other cases furthers the purpose of the cancer presumption.”