ADJ12048035 · August 13, 2021

The WCJ found that the applicant met the presumption of industrial causation under Labor Code 3212.1 and that the defendant failed to rebut the presumption with substantial medical evidence, including the opinion of Dr. Hirsch, which was found not to rebut the presumption.

From the decision · page 3On June 14, 2021, the Defendant filed a timely and verified petition for reconsideration dated June 14, 2021, alleging that the undersigned WCJ erred in his Findings of Fact & Award dated May 24, 2021. The Defendant contends that the independent medical review reports and deposition testimony of Jeffrey A. Hirsch, M.D., finding that the Applicant did not sustain industrial injury, should be binding on the parties notwithstanding Dr. Hirsch's failure to rebut the presumption of compensation pursuant to Labor Code § 3212.1. In addition, the Defendant contends that Dr. Hirsch's opinion that the Applicant is permanently totally disabled is not substantial medical evidence because his cancer is not in remission.

The WCJ credited Dr. Hirsch's opinion on permanent disability as substantial medical evidence and found the applicant to have 100% permanent disability based on the medical evidence and the AMA Guides standard.

From the decision · page 9Accordingly, based on Dr. Hirsch's medical report dated December 7, 2020, on page nine, found to be credible and substantial medical evidence, notwithstanding the contention by the Defendant to be otherwise, the Applicant's permanent disability is rated as follows:

Applicant worked as firefighter exposed to known carcinogens including smoke, fumes, diesel exhaust, and ultraviolet radiation.

Favours Applicant prevailed

Established applicant met initial burden for cancer presumption under Labor Code 3212.1.

From the decision · page 5In this case, the Applicant worked as a firefighter for the County of Los Angeles during the period August 2, 1985 to February 28, 2019, [MOH/SOE, 05/11/2021, 2:9-10, 4:24-25] and, in his job description by Jeffrey Hirsch, M.D., in his independent medical evaluation report dated August 22, 2014, [Joint Exhibit "A"] on page two, the Applicant, as a firefighter "ha[d] breathed smoke, fumes, particulates, and superheated gases... [as well as] diesel exhaust, particulates, and fumes in the fire stations in which he lived... [and] ha[d] been exposed to ultraviolet radiation throughout his career."

Applicant first noticed lump on neck in July 2018 and was diagnosed with cancer thereafter.

Favours Applicant prevailed

Established manifestation date within statutory time frame for cancer presumption.

From the decision · page 5The Applicant testified that he "first noticed that he had a lump on his neck in July 2018... [and a]fter consulting with a physician, he was informed that it was cancerous." [MOH/SOE, 05/11/2021, 5:2-4]

Defendant failed to rebut presumption with substantial medical evidence; Dr. Hirsch's opinion on no reasonable link was rejected.

Favours Applicant prevailed

Supported finding of industrial causation for cancer.

From the decision · page 7However, Dr. Hirsch's opinion regarding "no reasonable link" appeared to be based on his claim that there was a lack of medical literature suggesting any causal relationship. This alone cannot form a proper basis to determine that his opinion is substantial medical evidence given that a presumption cannot be rebutted by showing that there are no studies linking exposure to a carcinogen and the development of the type of cancer at issue. [County of Ventura v. Workers' Comp. Appeals Bd. (Bastian) 75 Cal. Comp. Cases 513, 516; City of Compton v. Workers' Comp. Appeals Bd. (Branscomb) 76 Cal. Comp. Cases 991, 995 (writ denied)]

Dr. Hirsch's permanent disability rating of 75% WPI based on terminal cancer and extensive neck dissection was found credible and substantial medical evidence.

Favours Applicant prevailed

Supported finding of 100% permanent disability.

From the decision · page 9Accordingly, based on Dr. Hirsch's medical report dated December 7, 2020, on page nine, found to be credible and substantial medical evidence, notwithstanding the contention by the Defendant to be otherwise, the Applicant's permanent disability is rated as follows:

Concluded the applicant's parotid tumor was non-industrial but resulted in 100% permanent disability; opined that the applicant was exposed to carcinogens but could not reasonably link exposure to the tumor; rated 75% whole person impairment due to terminal cancer.

Dr. Hirsch's opinion that there was no reasonable link between carcinogen exposure and the tumor was found not to rebut the presumption of industrial causation under Labor Code 3212.1.

From the decision · page 3On June 14, 2021, the Defendant filed a timely and verified petition for reconsideration dated June 14, 2021, alleging that the undersigned WCJ erred in his Findings of Fact & Award dated May 24, 2021. The Defendant contends that the independent medical review reports and deposition testimony of Jeffrey A. Hirsch, M.D., finding that the Applicant did not sustain industrial injury, should be binding on the parties notwithstanding Dr. Hirsch's failure to rebut the presumption of compensation pursuant to Labor Code § 3212.1. In addition, the Defendant contends that Dr. Hirsch's opinion that the Applicant is permanently totally disabled is not substantial medical evidence because his cancer is not in remission.

Rated 75% whole person impairment based on terminal cancer and extensive neck dissection; opinion found credible and substantial medical evidence for permanent disability rating.

The WCJ found Dr. Hirsch's permanent disability rating credible and substantial medical evidence despite defendant's challenges.

From the decision · page 9Accordingly, based on Dr. Hirsch's medical report dated December 7, 2020, on page nine, found to be credible and substantial medical evidence, notwithstanding the contention by the Defendant to be otherwise, the Applicant's permanent disability is rated as follows:

Labor Code 3212.1

Labor Code 3212.1 cancer presumption and burden shifting framework

Applicant met presumption of industrial causation; defendant failed to rebut with substantial medical evidence.

From the decision · page 3On June 14, 2021, the Defendant filed a timely and verified petition for reconsideration dated June 14, 2021, alleging that the undersigned WCJ erred in his Findings of Fact & Award dated May 24, 2021. The Defendant contends that the independent medical review reports and deposition testimony of Jeffrey A. Hirsch, M.D., finding that the Applicant did not sustain industrial injury, should be binding on the parties notwithstanding Dr. Hirsch's failure to rebut the presumption of compensation pursuant to Labor Code § 3212.1. In addition, the Defendant contends that Dr. Hirsch's opinion that the Applicant is permanently totally disabled is not substantial medical evidence because his cancer is not in remission.

Almaraz v. Environmental Recovery Services/Guzman v. Milpitas Unified School District (2009) 74 Cal. Comp. Cases 1084 (Appeals Board en banc)

AMA Guides and Almaraz/Guzman standard for permanent disability rating

WCJ applied AMA Guides with clinical judgment to rate permanent disability.

From the decision · page 8The AMA Guides are not strict texts to be literally and mechanically applied. Instead, an evaluating physician may use his or her experience and expertise to interpret and apply any portion of the entire AMA Guides. The new standard for calculating whole person impairment (WPI) is determining the most accurate reflection of impairment as measured by any chart, table, or methodology contained within the entire AMA Guides. Pursuant to Almaraz v. Environmental Recovery Services/Guzman v. Milpitas Unified School District (2009) 74 Cal. Comp. Cases 1084 (Appeals Board en banc) (Almaraz/Guzman II), the WCAB held that:

Applicant's testimony and job description established exposure to known carcinogens as a firefighter.

From the decision · page 5In this case, the Applicant worked as a firefighter for the County of Los Angeles during the period August 2, 1985 to February 28, 2019, [MOH/SOE, 05/11/2021, 2:9-10, 4:24-25] and, in his job description by Jeffrey Hirsch, M.D., in his independent medical evaluation report dated August 22, 2014, [Joint Exhibit "A"] on page two, the Applicant, as a firefighter "ha[d] breathed smoke, fumes, particulates, and superheated gases... [as well as] diesel exhaust, particulates, and fumes in the fire stations in which he lived... [and] ha[d] been exposed to ultraviolet radiation throughout his career."

Dr. Hirsch's opinion that absence of medical literature showing causal link does not rebut presumption.

From the decision · page 7However, Dr. Hirsch's opinion regarding "no reasonable link" appeared to be based on his claim that there was a lack of medical literature suggesting any causal relationship. This alone cannot form a proper basis to determine that his opinion is substantial medical evidence given that a presumption cannot be rebutted by showing that there are no studies linking exposure to a carcinogen and the development of the type of cancer at issue. [County of Ventura v. Workers' Comp. Appeals Bd. (Bastian) 75 Cal. Comp. Cases 513, 516; City of Compton v. Workers' Comp. Appeals Bd. (Branscomb) 76 Cal. Comp. Cases 991, 995 (writ denied)]