Richard Johnson worked as a firefighter for the City of South San Francisco (CSSF) from March 1973 to October 2001. He then worked for the City of Pacifica (Pacifica). He was exposed to known carcinogens during each period of employment. He was diagnosed nasopharyngeal cancer in 2007.
The cancer was found to have initially manifested itself during 2005, when Johnson first noted symptoms of nasal obstruction. The disability was found to have occurred in 2007, during Johnson’s employment with Pacifica.
Johnson filed a workers’ compensation claim against Pacifica. He invoked the presumption of section 3212.1 that cancer manifesting during (or within certain periods following) employment as a firefighter that involves exposure to known carcinogens arose out of and in the course of that employment.
Pacifica denied liability and joined CSSF as a party to the case. CSSF eventually settled with Johnson for all of his cancer-related compensation, and it then sought contribution from Pacifica. An arbitrator denied the petition, ruling that evidence of the latency period for the cancer suffered by Johnson showed the injurious exposure under section 5500.5(a) occurred during Johnson’s earlier employment with CSSF. The Workers’ Compensation Appeals Board (WCAB) upheld and adopted the arbitrator’s order.
CSSF petitioned for review, contending the WCAB, in adopting the arbitrator’s determination, erroneously utilized a more lenient preponderance evidentiary standard in applying section 5500.5(a), rather than the more stringent cancer presumption rebuttal standard provided in section 3212.1. The Court of Appeal affirmed the WCAB in the published case of City of South San Francisco v WCAB, City of Pacifica.
Labor Code section 3212.1 establishes a presumption that cancer manifesting during and for a specified period following employment in certain public safety positions, including firefighters, arose out of and in the course of that employment.
Section 5500.5, subdivision (a) (section 5500.5(a)), however, limits employer liability for a cumulative injury to the employer who employed the applicant during the one year preceding the earliest of (1) the date of injury or (2) the last date of injurious exposure to the hazards that caused the injury. Thus, either CSSF or Pacifica would be potentially responsible for compensation for the entire injury, dependent upon the proper application of section 5500.5(a).
The arbitrator determined the date of injury was in 2007. The dispositive issue was whether the last injurious exposure resulting in the injury occurred during CSSF or Pacifica employment.
The Court of Appeal ruled that an employer is not liable under section 5500.5(a) absent evidence that exposure during that employment was a contributing cause of the disease or injury, i.e., that the exposure was injurious.
Section 3212.1 does not eliminate the requirement that an industrial injury be proximately caused by the hazardous exposure. Instead, it applies presumptions of a causal link between exposure to the industrial hazard (a known carcinogen) and the manifested injury (cancer), unless the employer disproves the existence of such a link.