Compensability presumption applies only when carcinogen is identified

The widow of a police officer could not invoke the statutory presumption of compensability because she did not establish that her husband was exposed to a known carcinogen while employed by the city of Fresno.

Case name: Fain v. Workers' Compensation Appeals Board and City of Fresno Police Dept., No. F056026 (Cal. Ct. App. 11/13/08, unpublished).

Ruling: The California Court of Appeal upheld the Workers' Compensation Appeals Board's finding that a police officer's fatal cancer did not arise out of and in the course of his employment.

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What it means: Under California law, a qualified peace officer or firefighter who develops cancer within 60 months of leaving his employment is entitled to a presumption that the cancer is employment-related. However, the presumption can be invoked only if the applicant proves that he was exposed to a known carcinogen.

Summary: A police officer argued that employment-related stress and exposure to chemicals caused him to develop a cancerous tumor in his head. After he died, his widow pursued his workers' compensation claim. The board upheld a workers' compensation judge's conclusion that the presumption of compensability available to peace officers and firefighters for cancer did not apply. The Court of Appeal agreed, finding that the widow did not establish that her husband was exposed to a known carcinogen while working for the city of Fresno.

The medical examiner was unable to identify a specific carcinogen as the cause of the police officer's brain tumor. Further, although the widow claimed that her husband was exposed to vehicle vapors and weapon solvents, she did not present any evidence that these chemicals were carcinogens.

The court noted that in addition to the widow's failure to meet the "threshold requirements" for application of the statutory presumption, there was "no medical evidence otherwise suggesting a causal relationship between [the police officer's] employment and his brain tumor.

January 12, 2009

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