Presumption and Impact of Labor Code Section 5814.3
In the case of Vlasis v. County of Fresno 2024 Cal. Wrk. Comp. P.D. LEXIS 188, 89 Cal. Comp. Cases 1116, the Appeals Board upheld the Workers’ Compensation Judge’s (WCJ’s) imposition of maximum penalties per Labor Code (LC) section 5814.3 for defendant, County of Fresno’s unreasonable rejection of liability for both an inter vivos cancer claim and the related death benefits claim.
The decedent/applicant, Steven Vlasis, had the following accepted claims against the County of Fresno, while employed as a Deputy Sheriff:
- An accepted April 21, 2017 back injury.
- An accepted cumulative trauma (CT) injury for the period from September 4, 1999 to September 21, 2018.
The cumulative claim was accepted for the low back, neck, bilateral knees, hypertension, and headaches. However, the County denied the claim for brain cancer.
After trial, the WCJ found that Deputy Sheriff Vlasis was a statutorily covered employee under Labor Code Section 3212.1 and that he developed brain cancer while he was exposed to carcinogens during his tenure with the City of Fresno. Most pertinently, the WCJ found that the presumption of compensability under LC 3212.1 applied and that defendant failed to rebut that presumption.
The WCJ further found that defendant was unreasonable in denying the claim for brain cancer. The WCJ found that applicant was entitled to penalties totaling five times all unpaid temporary disability and unpaid permanent disability under Labor Code (LC) Section 5814.3. The WCJ also found that applicant’s widow was entitled to five times the unpaid death benefits and five times the burial expenses.
Defendant’s Petition for Reconsideration contended that the evidence rebutted the presumption of compensability under LC section 3212.1 and that there was no basis for penalties under LC sections 5814 or 5814.3. The Appeals Board denied defendant’s Petition.
Per the WCJ, the cancer presumption laid out in LC section 3212.1 applies when a statutorily covered employee demonstrates that cancer developed/manifested while working in the department and that the employee was exposed to a carcinogen, while working, as defined by the International Agency for Research on Cancer (IARC).
Once this prima facie case is shown, the employer must rebut the burden by proving that:
- The primary site of cancer has been established; and
- The carcinogen to which the member has demonstrated exposure is not reasonably linked to the disabling cancer.
It is notable that the employer showing no evidence of an established link between the carcinogen and cancer is not sufficient; rather the defendant must affirmatively establish that a reasonable link does not exist.
The AME in this matter, Dr. Jonathan Green, reported that applicant’s widow informed Dr. Green that applicant was exposed to lead when practicing at the firing range. Dr. Green opined that (assuming the presumption applies) the primary site of cancer is the brain and the carcinogen would be lead (which is a probable human carcinogen as defined by IARC). The doctor was not able to conclude that the lead did not cause applicant’s brain cancer. Dr. Green went on, noting that applicant would have been exposed to benzene when fueling his patrol car and while writing tickets. Dr. Green noted that he was unaware of any studies finding that benzene/diesel exhaust does not lead to the development of brain cancer as present in this case.
The threshold to prove exposure to a known carcinogen is very low. Here, defendant argued that applicant did not prove actual exposure to some of the claimed carcinogens. The WCJ disagreed, finding that applicant met his burden to establish exposure to a known carcinogen through testimony from a witness familiar with applicant’s work. Specifically, applicant offered unrebutted testimony from a co-worker who testified to applicant’s exposure to carcinogens while working as a Sheriff for the City of Fresno. The WCJ rejected defendant’s assertion that the presumption of compensability in LC section 3212.1 had been rebutted.
The WCJ also rejected defendant’s contention that applicant’s claim for penalties under LC section 5814.3 was barred by the Statute of Limitations. The defendant argued that the Statute of Limitations under LC section 5814 applies “for no other reason other than both Statutes deal with Penalties.” However, the WCJ stated:
“Defendant claims that LC section 5814.3 is a derivative of section 5814 but provides no basis to support such a claim. If the Legislature intended 5814.3 to be a derivative of 5814, it could have been drafted as an amendment and a subdivision of 5814 rather than as a separate statute. The Legislature is presumed to act intentionally and purposely when it includes language in one section but omits it in another.”
The WCJ further rejected defendant’s argument that only one penalty should have been imposed since all unreasonable delays in benefits stemmed from the single claim of injury (brain cancer) and that there was no basis for multiple penalties from a single act of misconduct. The WCJ concluded that there were two separate and distinct actions, one affecting the inter vivos benefits due to the applicant and one affecting death benefits due to applicant’s widow – both requiring separate applications.
The WCJ rejected defendant’s position that penalties under 5814.3 were not warranted as defendant had a good faith doubt as to its liability, even in the face of LC section 3212.1. The WCJ opined that defendant either relied on evidence not properly admitted and never reviewed by the AME or upon an unwarranted assumption that the IARC alone could be used as a basis to rebut the presumption. Specifically, the WCJ rejected defendant’s argument that because the IARC contains information regarding various cancer sites, which carcinogens have sufficient evidence of harm to humans and which have limited evidence of harm to humans, that it should be inferred that there exist studies showing a link does not exist between the cancer site in question (brain) and any carcinogen not listed for that site. The WCJ noted that defendant provided no basis to support this interpretation.
The panel affirmed imposition of penalties of $100,000 ($50,000 for death benefits unreasonably delayed and $50,000 for temporary disability/permanent disability benefits unreasonably delayed) pursuant to LC section 5814.3.
The lesson to be learned from Vlasis is that when handling a claim involving a safety officer/firefighter and a likely presumptive injury, it is important to be extremely cautious before issuing a denial. For example, a denial might be based on a physician’s latency determination indicating an applicant’s deleterious exposure fell outside of his or her period of employment with the defendant.
By Frank Gould, Esq., Associate Attorney, San Francisco Office, April 2025
