AOE / COECase BriefCourt of Appeal Upholds Arbitrator’s Decision that Subsequent Employer is Not Liable for Contribution when “Injurious Exposure” Occurred During Prior Period of Employment

June 28, 20180

(2018) 20 Cal.App.5th 881

Applicant was employed as a firefighter by the City of South San Francisco from March 1973 to October 2001.  He worked as a firefighter for the City of Pacifica from November 2001 until 2007 when he was diagnosed with nasopharyngeal cancer.

Applicant filed a claim against Pacifica.  Pacifica denied the claim and joined the City of South San Francisco.  South San Francisco settled with applicant and filed a Petition for Contribution from Pacifica.

The contribution claim was submitted to arbitration.  The parties stipulated to a single cumulative trauma, such that what one party would bear full responsibility for all benefits paid.

The arbitrator reviewed the medical evidence and determined that, under Labor Code §5412, the date of injury was 2007 while applicant was employed by Pacifica.  However, based on the 10-year latency period for the cancer, the last injurious exposure would have occurred in 1996 or 1997 while applicant was employed by South San Francisco.  Based on Labor Code §5500.5 which provides that “liability for… cumulative injury claims… shall be limited to those employers who employed the employee during a period of [one year] immediately preceding the date of injury, as determined pursuant to §5412, or the last date on which the employee was employed in an occupation exposing him or her to the hazards of the… cumulative injury, whichever occurs first”, the arbitrator found that the last injurious exposure occurred during South San Francisco’s employment.

South San Francisco filed a Petition for Reconsideration of the arbitrator’s decision which was denied. It then filed a Petition for Writ of Review with the First District Court of Appeal.

South San Francisco argued that under Labor Code §3212.1, there is a rebuttable presumption that Pacifica is liable for cancer that manifests itself during applicant’s employment from 2001 – 2007.  Because Pacifica did not meet the “no reasonable link” standard of proof it did not rebut the 3212.1 presumption.

However, the Court of Appeal determined that the “no reasonable link” standard for rebuttal applies only between an employer and employee.  In this contribution claim, the burden of proof is to show liability by a preponderance of the evidence.  Applying that standard, the evidence showed that applicant was exposed to carcinogens while employed by South San Francisco and that the cancer would have initially developed while employed by South San Francisco.  Consequently, under Labor Code §5500.5, South San Francisco would be solely responsible for all of applicant’s benefits.

Written by Edward L. Hummer, Associate Attorney in our Santa Rosa office, June 2018.

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