PRESUMPTION OF INJURY - Heart trouble presumption–Labor Code 3212.5–Once the applicant established she was entitled to the presumption of compensability, the burden shifts to the employer to rebut the presumption (See Bussa v. Workers' Comp. Appeals Bd. (1958) 259 Cal.App.2d 261.) To rebut the presumption, the employer must show that a contemporaneous non-work event was the sole cause of the heart trouble. (See Turner v. Workers' Comp. Appeals Bd. (1968) 258 Cal.App.2d 442.) City of Los Angeles v. Workers' Compensation Appeals Board, (Hilda Kendrick) 10 WCAB Rptr. 10,117 [Writ Denied]
PRESUMPTION OF INJURY - Cancer presumption–Labor Code §3212.1 provides that when a peace officer demonstrates exposure to known carcinogens during the course of employment, it is presumed that any cancer contracted during the employment. An employer may rebut the presumption by showing: (1) the primary site of the cancer has been established, and (2) the carcinogen to which the employee was exposed is not reasonably linked to the cancer. (See City of Long Beach v. Workers' Comp. Appeals Bd. (Garcia) ( ) 126 Cal.App.4th 298.) County of San Mateo v. Workers' Compensation Appeals Board (John Hein) 10 WCAB Rptr. 10,014[Writ Denied]
PRESUMPTION OF INJURY - Cancer presumption–Labor Code §3212.1–An applicant's cancer is presumptively compensable when the applicant makes a prima facie showing: (1) that he was employed in an included capacity as a peace officer, (2) that he has been exposed to a known carcinogen during the employment, and (3) that he has developed or manifested cancer within the statutory time frames. (See Faust v. City of San Diego (2003) 6 WCAB Rptr. 10,013 [en banc].) Coby S. Richards v. Workers' Compensation Appeals Board, County of Sonoma 9 WCAB Rptr. 10,379 [Writ Granted]
PRESUMPTION OF INJURY - Cancer presumption Labor Code §3212.1–A BART police officer qualifies for the presumption of injury as a peace officer as defined by Penal Code §830.1. San Francisco Bay Area Rapid Transit District v. Workers' Compensation Appeals Board (George Ennis) 9 WCAB Rptr. 10,367[Writ Denied]
PRESUMPTION OF INJURY - Heart Trouble presumption—Labor Code §3212—In enacting SB899's new apportionment provisions, apportioning permanent disability to causation, the Legislature did not amend the heart trouble presumption of injury which contains a non-attribution clause which provides that there is no apportionment of permanent disability due to any pre-existing disease. (See Turner v. Workers' Comp. Appeals Bd. (1968) 258 Cal.App.2d 442.) City and County of San Francisco v. Workers' Compensation Appeals Board (Henry Smith) 8 WCAB Rptr. 10,335 [Writ Denied]
PRESUMPTION OF INJURY-Heart trouble presumption-Labor Code §3212.5-The Appeals Board is precluded from rebutting the presumption attributing heart trouble to a preexisting disease, but the presumption can be rebutted by proving a contemporaneous non-work-related event was the sole cause of the heart condition. (See City and County of San Francisco v. Workers' Comp. Appeals Bd. (Weibe) (1978) 22 Cal.3d 103.) City of Anaheim v. Workers' Compensation Appeals Board (Connie Najmulski) 8 WCAB Rptr. 10,262 [Writ Denied]
PRESUMPTION OF INJURY-Cancer presumption–Labor Code §3212.1–Once the injured worker has established exposure to known carcinogens, to rebut the cancer presumption the employer must prove the absence of a reasonable link between the cancer and industrial exposure to the carcinogen. A mere showing of absence of medical evidence that the carcinogen has been shown to cause the particular cancer contracted by the injured worker is not sufficient to rebut the presumption. (See City of Long Beach v. Workers' Comp. Appeals Bd. (Garcia) (2005) 126 Cal.App.4th 298, 7 WCAB Rptr. 10,051.) County of Ventura v. Workers' Compensation Appeals Board (Steven Gregory) 8 WCAB Rptr. 10,246 [Writ Denied]
PRESUMPTION OF INJURY- Cancer presumption–Labor Code 3212.1–When an applicant establishes both exposure to a known carcinogen and the manifestation or development of cancer, the cancer is presumed to be an industrial injury. The burden then shifts to the defendant to rebut the presumption (1) by evidence establishing the primary site of the cancer, or (2) by evidence establishing that there is no reasonable link between the carcinogen and the cancer. The defendant must prove that no reasonable link exists; it does not rebut the presumption by merely showing that there is not evidence demonstrating a reasonable link. (See City of Long Beach v. Workers' Comp. Appeals Bd. (Garcia) (2005) 126 Cal.App.4th 298, 7 WCAB Rptr. 10,051.) (In this case, applicant had an extremely rare neural ectodermal tumor of primitive origin involving the lumbar spine, and applicant failed to establish any exposure to carcinogens.) Richard Gomez v. Workers' Compensation Appeals Board, County of Los Angeles 8 WCAB Rptr. 10,055 [Writ Denied]
PRESUMPTION OF INJURY– Heart Trouble Presumption relating to correctional officers– Labor Code §3212.2– The heart trouble presumption is a presumption affecting the burden of proof and is rebuttable. It imposes the burden on the employer to prove that the applicant's heart trouble did not arise out of and in the course of his employment. (See Reeves v. Workers' Comp. Appeals Bd. (2000) 80 Cal.App.4th 22, 2 WCAB Rptr. 10,187.) Cynthia Jackson v. Workers' Compensation Appeals Board, State of California Department of Corrections 7 WCAB Rptr. 10,339 ___Cal.App.4th___
PRESUMPTION OF INJURY– Heart Trouble Presumption relating to correctional officers — Labor Code §3212.2—It is the employer's burden to show that any non-work-related event was the sole cause of the applicant's heart disease or that the heart disease was the result of a pre-existing disease unrelated to his job. Cynthia Jackson v. Workers' Compensation Appeals Board, State of California Department of Corrections 7 WCAB Rptr. 10,339 ___Cal.App.4th___
PRESUMPTION OF INJURY– Heart trouble presumption for correctional officers– Labor Code §3212.2– The heart trouble presumption can be rebutted by evidence establishing that the injury was caused solely by a contemporaneous non-work-related event. (See City and County of San Francisco v. Workers' Comp. Appeals Bd. (Wiebe) (1978) 22 Cal.3d 103.) Barbara Davis v. Workers' Compensation Appeals Board, State of California, Department of Corrections, Folsom State Prison 7 WCAB Rptr. 10,345 [Writ Denied]
PRESUMPTION OF COMPENSABILITY– Labor Code §5402– If liability is not rejected within 90 days after the date the Claim Form is filed, the injury shall be presumed compensable. The 90-day period for denial of liability runs only from the date the employee files the claim form, not from the date the employer received notice or knowledge of the injury or claimed injury. (See Honeywell v. Workers' Comp. Appeals Bd. (2005) 35 Cal.4th 24, 7 WCAB Rptr. 10,067.) Jeffrey Allen Walden v. Workers' Compensation Appeals Board, COMP USA 7 WCAB Rptr. 10,300 [Writ Denied]
PRESUMPTION OF COMPENSABILITY– Labor Code §5402– The employer must deny the claim within 90 days, but need not communicate the denial to the injured worker within that time. (See Rodriguez v. Workers' Comp. Appeals Bd. (1994) 30 Cal.App.4th 1425.) Jeffrey Allen Walden v. Workers' Compensation Appeals Board, COMP USA 7 WCAB Rptr. 10,300 [Writ Denied]
PRESUMPTION OF COMPENSABILITY– Labor Code §5402– A 90-day period for the employer to deny liability and avoid the presumption of compensability of injury runs only from the date an applicant files a claim form with the employer, and not from the date the employer receives notice or knowledge of the injury or claimed injury. (See Honeywell v. Workers' Comp. Appeals Bd. (Wagner) (2003), 35 Cal.4th 24, 5 WCAB Rptr. 10,006.) Charva Grim v. Workers' Compensation Appeals Board, City of Pasadena 7 WCAB Rptr. 10,288 [Writ Denied]
HEART TROUBLE PRESUMPTION– Labor Code §3212– The heart trouble presumption is a presumption affecting the burden of proof and is rebuttable. It imposes the burden on the employer to prove that applicant's heart trouble did not arise out of and in the course of his employment. (See Reeves v. Workers' Comp. Appeals Bd. (2000) 80 Cal.App.4th 22, 2 WCAB Rptr. 10,187.) Cynthia Jackson v. Workers' Compensation Appeals Board, State of California Department of Corrections 7 WCAB Rptr. 10,275 ___Cal.App.4th___
HEART TROUBLE PRESUMPTION– Labor Code §3212– It is the employer's burden to show what contemporaneous non-work-related event, if any, was the sole cause of applicant's heart trouble. (See Parish v. Workers' Comp. Appeals Bd. (1989) 210 Cal.App.3d 92.) Cynthia Jackson v. Workers' Compensation Appeals Board, State of California Department of Corrections 7 WCAB Rptr. 10,275 ___Cal.App.4th___
PRESUMPTION OF INJURY– Cancer presumption– Labor Code §3212.1– This involves peace officers primarily engaged in active law enforcement activities who sustain an injury in the form of cancer that develops or manifests itself during periods of service as a peace officer. The manifestation period is extended to a peace officer following termination of service for a period of three calendar months for each full year of service, not to exceed 69 months commencing with the last date actually worked as a peace officer engaged in active law enforcement activities. City of Los Angeles v. Workers' Compensation Appeals Board (Michael Darling) 7 WCAB Rptr. 10,262 [Writ Denied]
PRESUMPTION OF INJURY– Labor Code §3213.1– Duty belt presumption of injury to low back– A public safety officer who develops low back impairment is entitled to a presumption that the impairment is work-related so long as the public safety officer has been employed for at least five years and wears a duty belt as a condition of employment. A duty belt for purposes of this presumption is defined as a belt used for the purpose of holding a gun, handcuffs, baton and other items related to law enforcement. [In this case the applicant was a deputy sheriff assigned to jail guard duty and the duty belt presumption did not apply because (1) he had not worked as a sworn officer working full-time on a regular salary for five years and (2) the belt worn by the applicant was not a belt as defined by Labor Code §3213.2(c).] Damian Crowson v. Workers' Compensation Appeals Board, County of Orange 7 WCAB Rptr. 10,261 [Writ Denied]
PRESUMPTION OF INJURY– Cancer presumption– Labor Code §3212.1– Once the presumption is shown to be applicable, the presumption can be controverted only by establishing (1) the primary site of the cancer has been established, and (2) that the carcinogen to which the employee has been exposed was not reasonably linked to the cancer. The burden of proof is on the employer to disprove the presence of a reasonable link. (See City of Long Beach v. Workers' Comp. Appeals Bd. (Garcia) (2005) 126 Cal.App.4th 298, 7 WCAB Rptr. 10,051; see also Faust v. City of San Diego (2003) 6 WCAB Rptr. 10,013 [en banc].) Town of Hillsborough v. Workers' Compensation Appeals Board (Michael Bein) 7 WCAB Rptr. 10,174
PRESUMPTION OF INJURY– Heart trouble presumption– Labor Code §3212.2– To make a prima facie case for workers' compensation benefits, applicant must show with reasonable medical probability that he developed or manifested "heart trouble" during his employment as a correctional officer. (See McAllister v. Workmen's Comp. Appeals Bd. (1968) 60 Cal.2d 408, Stephens v. Workmen's Comp. Appeals Bd. (1971) 20 Cal.App.3d 461.) [In this case, medical evidence showed that applicant had a physical abnormality of left ventricular hypertrophy, a condition not shown to have been previously manifested, thus he was entitled to application of presumption of industrial injury.] Department of Corrections v. Workers' Compensation Appeals Board (John Knox III) 7 WCAB Rptr. 10,173
PRESUMPTION OF COMPENSABILITY– Labor Code §5401(b) gives the employer 90 days from the date of the employee's filing of a claim form and does not deny an employee the opportunity to receive workers' compensation benefits; instead, it merely denied the benefit of compensability, leaving the employee free to prove in the ordinary manner the injury's compensability. (See Honeywell v. Workers' v. Workers' Comp. Appeals Bd. (Wagner) (2005) 35 Cal.4th 24, 7 WCAB Rptr. 10,005.) City of Merced v. Workers' Compensation Appeals Board (Michael Fenton) 7 WCAB Rptr. 10,164
HEART TROUBLE PRESUMPTION– Labor Code §3212– Because the "heart trouble" presumption relating to correctional officers does not provide an "anti-attribution" clause, may the presumption be rebutted by evidence that a non-industrial viral respiratory infection spread to the heart caused death from viral myocarditis? Cynthia Jackson v. Workers' Compensation Appeals Board, State of California Department of Corrections 7 WCAB Rptr. 10,148
PRESUMPTION OF COMPENSABLE INJURY– Heart trouble presumption– Labor Code §3212.5– The heart trouble presumption is not rebutted by either a physician's conclusion that he could not identify a specific thing either from applicant's work or non-work environment that precipitated applicant's heart attack, or another physician's attribution of the heart attack to cigarette smoking. In addition, in this case the defendant failed to show that a contemporaneous non-work-related event was the sole cause of applicant's heart attack. City of Colton v. Workers' Compensation Appeals Board (Richard Gillespie) 7 WCAB Rptr. 10,110
PRESUMPTION OF COMPENSABLE INJURY– Failure to deny claim within 90 days of the employer's knowledge of the injury– In this case, was the employer estopped from denying the claim by reason of their conduct and statements that led the injured worker to believe that no claim form was necessary? Johns Manville International Inc. v. Workers' Compensation Appeals Board (Earl Howell, deceased and Jean Howell, widow) 7 WCAB Rptr. 10,108
PRESUMPTION OF COMPENSABLE INJURY– Cancer presumption–Labor Code §3212.1–The cancer presumption relating to firefighters and peace officers is a rebuttable presumption. After the applicant has shown both exposure to a known carcinogen and manifestation or development of cancer, the burden shifts to the defendant to show that there is not a reasonable link between the carcinogen and the cancer. [See Faust v. City of San Diego (2003) 6 WCAB Rptr. 10,013 [en banc].] Evidence, such as medical literature, that does not relate the exposure to cancer is not evidence that no link exists. City of San Diego v. Workers' Compensation Appeals Board (Steven Holladay and Janet Holladay) 7 WCAB Rptr. 10,095
PRESUMPTION OF COMPENSABLE INJURY– Labor Code §5402– Employer's knowledge of an injury satisfies the worker's duty to provide notice within 30 days of injury and triggers employer's duty to provide a claim form within one working day, but absent circumstances creating an equitable estoppel, the 90-day period for employer to deny liability runs only from the date the worker files a claim form with employer. Honeywell v. Workers' Compensation Appeals Board (William Wagner) 7 WCAB Rptr. 10,067
PRESUMPTION OF INJURY– Cancer presumption– Labor Code §3212.1, as amended in 1999, provides that when certain peace officers and firefighters demonstrate they were exposed to known carcinogens during the course of their employment, it is presumed that any cancer they contract during, or within a specified period after, their employment arose out of and in the course of the employment. The employer may rebut the presumption by showing: (1) the primary site of the cancer has been established, and (2) the carcinogen to which the employee was exposed is not reasonably linked to the cancer. (See, generally, Zipton v. Workers' Comp. Appeals Bd. (1990) 218 Cal.App.3d 980.) City of Long Beach v. Workers' Compensation Appeals Board (David Garcia) 7 WCAB Rptr. 10,051
PRESUMPTION OF INJURY– Cancer presumption– Labor Code §3212.1– To rebut the presumption, the employer must prove the absence of a reasonable link between the cancer and the industrial exposure to the carcinogen. A mere showing of an absence of medical evidence that the carcinogen has been shown to cause a particular cancer contracted by the employee is not sufficient to rebut the presumption. [In this case, the police officer was exposed to a known carcinogen, benzene, and therefore the presumption arose. Because the Agreed Medical Examiner's opinion that the cancer was not occupationally related was based on the absence of a known cause for kidney cancer and the absence of medical studies showing a link between kidney cancer and benzene, the defendant failed to rebut the presumption.] City of Long Beach v. Workers' Compensation Appeals Board (David Garcia) 7 WCAB Rptr. 10,051
PRESUMPTION OF INJURY– Heart trouble presumption– Labor Code §3212– When the medical evidence is to the effect that the employee does not have heart difficulties, the presumption of heart injury does not arise. (See Baker v. Workers' Comp. Appeals Bd. (1971) 18 Cal.3d 852.) [In this case, every single test administered to determine whether applicant had any heart symptoms was perfectly normal.] David Andrews v. Workers' Compensation Appeals Board, City of Los Angeles 7 WCAB Rptr. 10,029
PRESUMPTION OF COMPENSABILITY– Labor Code §5402– Although Labor Code §5402 expressly states that the presumption is rebuttable only by evidence discovered subsequent to the 90-day period, the courts have concluded that the presumption further bars evidence that the employer or insurance carrier could have obtained within the 90-day investigation period with the exercise of reasonable diligence. (See Williams v. Workers' Comp. Appeals Bd. (1999) 74 Cal.App.4th 1260.) Anthony Watts v. Workers' Compensation Appeals Board, California Department of Corrections 6 WCAB Rptr. 10,227
PRESUMPTION OF INJURY– Cancer Presumption– Labor Code §3212.1– Was it error to require an employer to prove the absence of any possible link between the alleged exposure and a cancer, when the language of Labor Code §33212.1 states that the employer must show that there is no reasonable link to rebut the presumption of injury? City of Long Beach v. Workers' Compensation Appeals Board (David Garcia) 6 WCAB Rptr. 10,185
PRESUMPTION OF INJURY– Cancer Presumption for Active Firefighters– Labor Code §3212.1– The applicant has an initial burden affecting the production of evidence, to establish that the cancer developed or manifested itself while applicant was employed as an active firefighter and to demonstrate exposure to a known carcinogen while so employed. Under the statutory scheme, industrial causation is presumed and the burden then shifts to the employer to controvert the presumption by establishing the primary site of the cancer and to show that there is no reasonable link between exposure and the disabling cancer. (See Riverview Fire Protection District v. Workers' Comp. Appeals Bd. (Smith) (1994) 23 Cal.App.4th 1120.) [In this case, the firefighter was diagnosed with acute lymphoblastic leukemia and provided a log of all his chemical exposures including benzene.] City of Oakland v. Workers' Compensation Appeals Board (David Roberts) 6 WCAB Rptr. 10,124
PRESUMPTION OF INJURY– Labor Code §5401– An injury is presumed compensable if the claim is denied within 90 days of the receipt of the claim by the employer. An applicant's trial testimony as it bears on her credibility is proper rebuttal evidence under Labor Code §5402. (See State Compensation Ins. Fund v. Workers' Comp. Appeals Bd. (Welcher) (1995) 37 Cal.App.4th 675.) Margot Doss v. Workers' Compensation Appeals Board, Allied Professional Nursing Care. 6 WCAB Rptr. 10,075
PRESUMPTION OF INJURY– Correctional Officers– Labor Code §3212.2– A correctional officer employed by a municipality is not within the ambit of the heart trouble presumption of injury. The presumption applies only to state employees having custodial duties who are employees of the Department of Corrections, the Department of Youth Authority and security officers at the Atascadero State Hospital. Harvie Jones v. Workers' Compensation Appeals Board, City of Taft. 6 WCAB Rptr. 10,052
PRESUMPTION OF INJURY– Heart Trouble Presumption– Labor Code §3212– Hypertension cannot be reasonably equated with "heart trouble" because medically they are ordinarily distinct pathological conditions. (Hamilton v. Workers' Comp. Appeals Bd. (1979) 93 Cal.App.3d 587.) [In this case, the applicant's heart attack was caused by coronary artery disease that did not manifest itself during his employment as a firefighter.] Edwin O. Swafford v. Workers' Compensation Appeals Board, City of San Diego. 6 WCAB Rptr. 10,038
PRESUMPTION OF INJURY– Cancer Presumption– Labor Code §3212.1– The cancer presumption may be rebutted by evidence that the carcinogen to which the worker was exposed is not reasonably linked to the disabling cancer.(City of Anaheim v. Workers' Comp. Appeals Bd. (Pettitt) (2002) 5 WCAB Rptr. 10,049 [writ denied].) [The diagnosis in this case was a malignant cancerous (astrocytic) brain tumor, but none of the known carcinogens to which the worker was exposed had been identified with the development of a malignant brain tumor.] Keith Watson v. Workers' Compensation Appeals Board, City of Brea. 6 WCAB Rptr. 10,027
PRESUMPTION OF INJURY– Labor Code §3212.9– Meningitis Presumption– In this case, the injured employee sought and obtained medical treatment independently of any work involvement, that was sought for a nonindustrial condition, although the medical tests were initially directed at a potential industrial condition (meningitis). The facts of this case did not supply sufficient employer contact or involvement to justify a finding of an industrial involvement. Christopher Burnell v. Workers' Compensation Appeals Board, County of San Bernardino. 5 WCAB Rptr. 10,339
PRESUMPTION OF COMPENSABILITY– Labor Code §5402– Generally the 90-day period for denial of a claim did not arise until the claim form was filed, and unless the claim form was withheld or the employee was intentionally misled by the employer, the time does not run. [In this case, the applicant orally reported the injury to his employer. The employer asked the applicant to fill out a claim form, but applicant said he did not want to make a workers' compensation claim but would rather use his own health insurance. The WCJ properly found that the 90-day period for denial of claim did not arise under these factual circumstances.] James Marquez v. Workers' Compensation Appeals Board, Nob Hill General Stores, Inc. 5 WCAB Rptr. 10,214
PRESUMPTION OF COMPENSABILITY– Labor Code §5402– Use of estoppel doctrine–Estoppel, to deny the right of an employer to conduct a reasonable investigation before being compelled to make a decision as to whether to accept or reject the employee's claim, can be justified only by evidence of egregious employer misconduct beyond a mere failure to provide a claim form to the employee in a timely manner. Two types of behavior sufficient to justify an estoppel theory are: (1) a deliberate or intentional refusal to provide the required claim form to the employee, or (2) false statements made to the employee for the purpose of preventing or delaying the completion and filing of the claim form by the employee. Rosalie Dvorak-Remis v. Workers' Compensation Appeals Board, The Permanente Medical Group 5 WCAB Rptr. 10,211
PRESUMPTION OF COMPENSABILITY– Labor Code §5402– To commence the running of the 90-day period in which to deny a claim, the injured worker must provide sufficient information concerning the injury to unambiguously place the employer on notice of a claimed injury. [In this case, the claim form was erroneously filed in the worker's medical file and the follow-up letter by the worker to the employer concerning the status of claim was not sufficient notice of a claim because the letter did not specify what body part was injured or the date the injury. Rosalie Dvorak-Remis v. Workers' Compensation Appeals Board, The Permanente Medical Group 5 WCAB Rptr. 10,211
PRESUMPTION OF COMPENSABLE INJURY– Presumption concerning development or manifestation of cancer in active firefighters– Labor Code §3212.1– Evidence to support the presumption need not be expert or scientific evidence but must meet the standard for preponderance of evidence. Before the presumption may be applied, the applicant must demonstrate that he was exposed to a known carcinogen. [In this case, the applicant did not present substantial evidence of exposure to anything more specific than a white powdery substance that the applicant did not identify. The applicant's testimony of exposure was unconvincing and unsupported by any independent evidence.] David Holtgrave v. Workers' Compensation Appeals Board, County of Los Angeles. 5 WCAB Rptr. 10,190
PRESUMPTION OF COMPENSABLE INJURY– Labor Code §5402– If a claim of injury is not denied within 90 days after the claim is filed with the employer, it is presumed compensable pursuant to Labor Code §5402. The claim can be rebutted by evidence discovered subsequent to the 90-day period, if the evidence could not have been discovered with reasonable diligence. (See State Compensation Insurance Fund v. Workers' Comp. Appeals Bd. (Welcher) (1995) 37 Cal.App.4th 675. [In this case, evidence presented at trial in the form of applicant's testimony that consisted of more than one fabrication on critical points regarding the mechanism of applicant's claimed injury was properly admitted to rebut the presumption of compensability.] Deeana Habash v. Workers' Compensation Appeals Board, Department of Corrections. 5 WCAB Rptr. 10,133
PRESUMPTION OF COMPENSABILITY– Labor Code §5402– Is the appropriate remedy for an employer's breach of its statutory duty to provide a claim form to injured worker the commencement, from the date of breach, of the 90-day period in which an injury must be denied or be presumed compensable under Labor Code §5402? Honeywell, formerly known as Allied Signal Aerospace Company v. Workers' Compensation Appeals Board (William Wagner) 5 WCAB Rptr. 10,127
PRESUMPTION OF INJURY– Cancer presumption– Labor Code §3212.1– The presumption is triggered if applicant establishes his industrial exposure to a known carcinogen. Once exposure is shown, the burden is placed on the defendant to establish the manifestation of cancer at a known site and that there is no logical connection between the applicant's exposure and onset of his cancer. The defendant has two options to rebut the presumption: (1) By establishing that there is no reasonable link between applicant's exposure and his illness, or (2) By establishing that the latency period for the manifestation of cancer excludes the exposure as a cause of applicant's cancer. [This case involved exposure to benzene and colon cancer. The evidence of 8.5 year latency period between the exposure and manifestation of cancer was sufficient to meet defendant's burden under Labor Code §3212.1(d) to rebut the presumption of industrial causation because the medical evidence was that the latency period for solid tumors was at least 20 years.] Michael Law v. Workers' Compensation Appeals Board, Contra Costa County Sheriff's Department. 5 WCAB Rptr. 10,102
PRESUMPTION OF COMPENSABILITY– Labor Code §5402– Knowledge of an injury obtained from any source on the part of the employer, his or her managing agent, superintendent, foreman, or other person in authority, or knowledge of the assertion of a claim of injury sufficient to afford opportunity to the employer to make an investigation of the facts, is equivalent to service under section 5400. [In this case, the applicant bent over to pick up his sandwich from the parking lot and fell to the ground in severe pain. The injured worker immediately reported the injury to his supervisor, who advised him to seek medical treatment. The injured worker was not given a claim form and was terminated when he could not return to work.] Turbodyne Systems, Inc. v. Workers' Compensation Appeals Board (Eric Harrison) 5 WCAB Rptr. 10,071
PRESUMPTION OF COMPENSABILITY– Labor Code §5402– Raising the presumption for the first time at trial– A statutory presumption affecting the burden of proof becomes operative when the basic facts giving rise to the presumption are established in the record, and not because a party has expressly raised the issue. (See Gee v. Workers' Comp. Appeals Bd. (2002) 96 Cal.App.4th 1418, 4 WCAB Rptr. 10,101.) Northstar at Tahoe v. Workers' Compensation Appeals Board (Dawn Garcia) 5 WCAB Rptr. 10,065
PRESUMPTION OF INJURY– Labor Code §3212.1– Firefighter's cancer presumption– If a firefighter was exposed to known carcinogens and developed cancer while so employed, the burden of proof shifts to the defendant to controvert the presumption. The presumption may be controverted by evidence that the primary site of the cancer has been established and that the carcinogen to which the firefighter has demonstrated exposure is not reasonably linked to the disabling cancer. City of Anaheim v. Workers' Compensation Appeals Board (Dennis Pettitt) 5 WCAB Rptr. 10,049
PRESUMPTION OF COMPENSABILITY– Labor Code §5402(b)– The 90-day period that the employer has to deny a claim commences to run when the completed claim form is personally delivered to the employer or is received by the employer by first-class mail or certified mail. Honeywell (formerly known as Allied Signal Aerospace Company) v. Workers' Compensation Appeals Board (William Wagner) 5 WCAB Rptr. 10,006
PRESUMPTION OF COMPENSABILITY– Labor Code §5402– The presumption of compensability pursuant to Labor Code §5402 does not apply when a case is accepted within 90 days and the case is later denied, even when benefits are provided. (See Lillard v. Workers' Comp. Appeals Bd. (1998) 63 Cal.Comp.Cases 90 [writ denied].) Jean D. Richmond v. Workers' Compensation Appeals Board, City of West Covina. 4 WCAB Rptr. 10,286
PRESUMPTION OF COMPENSABILITY– Labor Code §5402– The lien claimant has the burden to establish that the applicant's injury arose out of and in the course of employment. The presumption of compensability pursuant to Labor Code §5402 does not apply to the lien claimant's case once the applicant's case is resolved. (See The 4600 Group v. Workers' Comp. Appeals Bd. (1996) 61 Cal.Comp.Cases 1472.) The 4600 Group v. Workers' Compensation Appeals Board, Ikon Office Equipment (Andrew Quinting) 4 WCAB Rptr. 10,266
PRESUMPTION OF COMPENSABILITY– Labor Code 5402– The presumption of compensability is not applicable to a psychiatric injury which was alleged as a compensable consequence of an admitted physical injury. (See Clark v. Workers' Comp. Appeals Bd. (2001) 3 WCAB Rptr. 10,042 [writ denied].) Philip Plumb v. Workers' Compensation Appeals Board, Territory Ahead 4 WCAB Rptr. 10,236
PRESUMPTION OF COMPENSABLE INJURY– Heart Trouble presumption– Labor Code §3212.5 – The term "heart trouble" as used in Labor Code §3212.5 has been construed to mean any affliction to, or additional exertion of, the heart caused directly by that organ or the system to which it belongs, or to it through interaction with other afflicted areas of the body. See Muznik v. Workers' Comp. Appeals Bd. (1975) 51 Cal.App.3d 622.) [In this case the medical evidence in the form of an AME report linked the onset of applicant's stroke as a conse2uence of his industrially related hypertension and congestive heart failure.] City of Covina v. Workers' Compensation Appeals Board (Daniel Alvarez) 4 WCAB Rptr. 10,234
PRESUMPTION OF COMPENSABILITY– Labor Code §5402– The presumption of compensability may be rebutted by presenting evidence at the hearing of applicant's testimony which shows that applicant's version of the injury is not credible. A credibility determination is a form of evidence which is not reasonably discoverable within the first 90 days after the claim form is filed. D & G Plumbing v. Workers' Compensation Appeals Board (Pedro Cervantes) 4 WCAB Rptr. 10,071
PRESUMPTION OF COMPENSABILITY– Labor Code §5402(b)– Is an employer's knowledge of a claim of injury the equivalent to the notice provided by filing a claim form for the purpose of the running of the 90-day period in which to deny a claim? Honeywell formerly known as Allied Signal Aerospace Company v. Workers' Compensation Appeals Board (William Wagner) 4 WCAB Rptr. 10,167
PRESUMPTION OF COMPENSABILITY– Labor Code §5402– If liability is not rejected within 90 days after the date of the claim form is filed, the injury shall be presumed compensable. [In this case the employer upon receipt of the claim form wrote a letter to its workers' compensation carrier pointing out that the employee had stated that his injury had occurred prior to working for the employer. This letter was not a denial of liability since it was not written to the employee. The letter was written to the carrier and provided information that the carrier could have utilized to deny the claim of injury. The denial letter issued by the carrier was sent over 5 month later and was not timely and the presumption of compensability was applicable.] Betteravia Farms v. Workers' Compensation Appeals Board (Ramiro Pizano) 3 WCAB Rptr. 10,362
PRESUMPTION OF COMPENSABILITY– Labor Code §5402– Applicant's testimony when found to be not credible does rebut the presumption of compensability. (See Davis v. Workers' Comp. Appeals Bd. (1994 ) 59 Cal.Comp.Cases 1066.) [In this case applicant's credibility only became an issue after applicant's deposition was taken and a medical records release was signed by applicant, which was the first time defendant could legally obtain information which raised the issue of applicant's credibility and the issue of injury arising out of and in the course of employment. In this case the evidence of applicant's lack of credibility could only have occurred at the time of trial when the WCJ was able to hear her testimony and to compare it to prior testimony given in her deposition, as well as compare it to previous medical records.] Antonia Zendejas v. Workers' Compensation Appeals Board, Monte J. Seus and Clean Start. 3 WCAB Rptr. 10,341
PRESUMPTION OF COMPENSABILITY– Labor Code §5402– In order to have "knowledge" of an injury or claim of injury sufficient to require a defendant to provide a claim form under section 5401(a), the employer must have been reasonably certain, under the particular facts of the case, that the employee suffered or claimed to have suffered an industrial injury. (See Wagner v. Allied Signal Aerospace/Zurich American Insurance Company (2001) 3 WCAB Rptr. 10,160.) Cypress Insurance Company v. Workers' Compensation Appeals Board (Nondas Keramitsis) 3 WCAB Rtpr. 10,307
PRESUMPTION OF COMPENSABILITY– Labor Code §5402– The reasonable certainty standard is meant to impose on the employer a duty to investigate when he or she has been made aware of facts which would lead a reasonable person to conclude with some certainty that an industrial injury as defined in section 5401(a), has occurred or is being asserted. Cypress Insurance Company v. Workers' Compensation Appeals Board (Nondas Keramitsis) 3 WCAB Rtpr. 10,307
PRESUMPTION OF INJURY– Labor Code §5402– An employer is required to provide the applicant with a claim form if the applicant's injury resulted in lost time beyond the date of injury or which results in medical treatment beyond first aid. [In this cae the applicant did not lose any time from work due to a medically documented reason and did not obtain medical treatment until placed on administrative leave pending his termination.] Timothy Sweetman v. Workers' Compensation Appeals Board, City of Pasadena 3 WCAB Rptr. 10,260
PRESUMPTION OF INJURY– Labor Code §5401– In order to have "knowledge" of an injury or claim of injury sufficient to require defendant to provide a claim form under Labor Code §5401(a), the employer must have been reasonably certain, that the employee suffered or claimed to have suffered an industrial injury. Mere supposition or possibility of such knowledge is not sufficient to trigger the duty to provide a claim form. (See Scott v. Workers Comp. Appeals Bd. (2000) 2 WCAB Rptr. 10,370 [writ denied].) Ron Melville v. Workers' Compensation Appeals Board, McDonnell Douglas Corp. 3 WCAB Rptr. 10,241
PRESUMPTION OF INJURY– Labor Code §5402– In determining whether the reasonable certainty standard had been met, an employer will not be required to guess or speculate as to the employee's unannounced intentions or nebulous, ambiguous comments that only remotely imply a possibility of injury or claim. The reasonable certainty standard is meant to impose on the employer a duty to investigate when he or she has been made aware of facts which would lead a reasonable person to conclude with some certainty that an industrial injury as defined by Labor Code §5401(a) has occurred or is being asserted. (See Wagner v. Allied Signal Aerospace (2001) 3 WCAB Rptr. 10,160 [en banc].) Ron Melville v. Workers' Compensation Appeals Board, McDonnell Douglas Corp. 3 WCAB Rptr. 10,241
PRESUMPTION OF COMPENSABILITY– Labor Code §5402– When the issue of the presumption of compensability is raised for the first time in the petition for reconsideration, the right to raise the presumption is waived. [See Jobity v. Workers' Comp. Appeals Bd. (1997) 62 Cal.Comp.Cases 978 (writ denied).] Elliott York v. Workers Compensation Appeals Board, Foodmakers Distribution System. 3 WCAB Rptr. 10,158
PRESUMPTION OF COMPENSABILITY– Labor Code §5402– The 90-day period for rejection of a claim may begin to run when the employer has actual notice or knowledge of the injury. Danny Bryant v. Workers' Compensation Appeals Board, Charels Drew University. 3 WCAB Rptr. 10,157
PRESUMPTION OF INJURY– Labor Code §5402– The presumption of compensability does not apply to a claim for injury or death which is a compensable consequence of a prior industrial injury. Juan C. Verduzco (Deceased) by Carmen Verduzco v. Workers' Compensation Appeals Board, Patina Visuals. 3 WCAB Rptr. 10,136
PRESUMPTION OF INJURY– Labor Code §5402– While an insufficient investigation may raise other concerns such as an audit penalty form the Office of Benefits Administration Enforcement, it does not mean that the claim is presumed compensable pursuant to Labor Code §5402. Dianna E. Trimple v. Workers' Compensation Appeals Board, Diablo Systems, Inc. 3 WCAB Rptr. 10,046
PRESUMPTION OF INJURY– Labor Code §5402– The fact that applicant amended his claim form to allege new parts of the body does not trigger a new period for rejecting a claim of injury. (See Burmaster v. Workers' Comp. Appeals Bd. (1997) 62 Cal.Comp.Cases 792 [writ denied].) Michael Clark v. Workers' Compensation Appeals Board, Golden Rain Foundation. 3 WCAB Rptr. 10,042
PRESUMPTION OF INJURY– Labor Code 5402– Just as a claim which is amended after the passing of the statute of limitations to include injury to a new part of the body relates back to the date of original filing, so does an amendment adding a new part of the body to the claim form relates back for purposes of Labor Code §5402. (See Charter Oaks Unified School District v. Workers' Comp. Appeals Bd. (1996) 61 Cal.Comp.Cases 103 [writ denied].) Michael Clark v. Workers' Compensation Appeals Board, Golden Rain Foundation. 3 WCAB Rptr. 10,042
PRESUMPTION OF COMPENSABILITY– Labor Code §5402– To commence the running of the 90-day period in which to deny a claim, the injured worker must provide sufficient information concerning the injury to unambiguously place the employer on notice of a claimed injury. In this case the claim form was erroneously filed in the worker's medical file and the issue presented was whether the follow-up letter by the worker to the employer concerning the status of claim was sufficient notice of a claim to commence the running of the 90-day period. Rosalie Dvorak-Remis v. Workers' Compensation Appeals Board, The Permanente Medical Group 5 WCAB Rptr. 10,256
PRESUMPTION OF COMPENSABILITY– Labor Code §3212– The presumption of injury under Labor Code §3212 is substantive law that is equated to an applicant's burden of proof to produce substantial evidence and as substantive law cannot be applied retroactively unless there is clear legislative intent expressed to provide for retroactive application. (See American Psychometeric Consultants v. Workers' Comp. Appeals Bd. (Hurtado) (1995) 36 Cal.App.4th 1626.) [In this case, the police officer's injury to his back occurred before Labor Code §3213.2 [the duty belt presumption of injury] became effective January 1, 2002. Anthony Gonzales v. Workers' Compensation Appeals Board, City of Atwater 5 WCAB Rptr. 10,260
PRESUMPTION OF INJURY–Labor Code §5402–The fact that applicant amended his claim form to allege new parts of the body does not trigger a new period for rejecting a claim of injury. (See Clark v. Workers' Comp. Appeals Bd. (2001) 3 WCAB Rptr. 10,042. [writ denied]) Vickie Lynn Swope v. Workers' Compensation Appeals Board, Fall River Unified School District 5 WCAB Rptr. 10,294
