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NEW CANCER PRESUMPTION LAW  

No lawyer likes to talk about cases that were lost. A couple of years ago, I represented a Hazmat firefighter. He had contracted an extremely rare cancer. It was a type of cancer which was so rare that only one or two cases a year had ever been reported. Little or nothing was known about its causes or what types of exposures were related to the disease.
 
My client, let's call him "Tom" for the purpose of this story, had been exposed to every imaginable type of carcinogen. No problem in showing an exposure. The problem was that the law at that time required that Tom show that he was exposed to a specific carcinogen which was reasonably connected to his particular type of cancer. Because of the lack of information pertaining to this extremely rare type of cancer, no such evidence could be produced.
 
What the big print giveth, the small print taketh away.
 
The judge found against Tom, who was rightfully furious. So was I, but the judge was right in applying the law as it was then written. There was no basis to appeal. What the big print in the Labor Code section 3212.1 cancer presumption gave, the small print took away.
 
Changes were overdue
 
On February 18, 1999, Assembly Members Papan and Lempert introduced Assembly Bill 539, which was intended to correct the unfair results inherent in the Safety Member Labor Code 3212.1 presumption.
 
The way it was
 
The way the law had been written, cancer would be considered an industrial injury if it developed during the time the member was in service, the member is able to show an actual exposure to a known carcinogen, and the carcinogen is reasonably linked to the disabling cancer. The presumption continued to apply for up to five years from the day last worked.
 
The way it is
 
The new amendments eliminate the member's burden of proving exposure to a known carcinogen reasonably linked to the disabling cancer. All he need show is an exposure to a carcinogen. The agency must then prove that the primary site of the cancer has been established, and that that carcinogen did not cause the disabling cancer. This presumption also continues to apply for up to five years from the day last worked.
   
Leukemia is added as a specific type of cancer that is compensable pursuant to the cancer presumption law.
 
Retroactive effect
 
The amendments to this bill apply to claims which were filed or pending on or after January 1, 1997, including but not limited to claims that have been previously denied, or that are being appealed following denial.
 
Reopening old cases
 
A Petition to Reopen is being filed on Tom's case. His date of injury was within five years so that the Workers' Compensation Appeals Board still has jurisdiction. His claim was on file on or after January 1, 1997. I can't guarantee that Tom will win this time, but at least he has a better shot at it.