How Califonria treats permanent cancer disability in workers compensation claims

Whole Person Impairments for Cancer, the Role of Medical Evaluators, and Workers’ Compensation: What You Need to Know

Various forms of Cancer have been found to have an industrial nexus. As a result, Injured Workers have successfully pursued claims of Cancer as an industrial injury. As a result of some of these Cancer Injuries, Injured Workers may be entitled to a Permanent Disability Award. In order to get a Permanent Disability Award, an Injured Worker must have Medical Evaluator Opinions and Reporting.

This article will discuss the nature of industrial cancers and how the State of California Department of Industrial Relations want Medical Evaluators to approach their assessment of Whole Person Impairment. Further, it will discuss how Whole Person Impairment translates into Permanent Disability.

What Is Cancer?

According to the National Cancer Institute, “Cancer is the name given to a collection of related diseases. In all types of cancer, some of the body’s cells begin to divide without stopping and spread into surrounding tissues. Cancer can start almost anywhere in the human body, which is made up of trillions of cells. Normally, human cells grow and divide to form new cells as the body needs them. When cells grow old or become damaged, they die, and new cells take their place. When cancer develops, however, this orderly process breaks down. As cells become more and more abnormal, old or damaged cells survive when they should die, and new cells form when they are not needed. These extra cells can divide without stopping and may form growths called tumors. Many cancers form solid tumors, which are masses of tissue. Cancers of the blood, such as leukemias, generally do not form solid tumors. Cancerous tumors are malignant, which means they can spread into, or invade, nearby tissues. In addition, as these tumors grow, some cancer cells can break off and travel to distant places in the body through the blood or the lymph system and form new tumors far from the original tumor. Unlike malignant tumors, benign tumors do not spread into, or invade, nearby tissues. Benign tumors can sometimes be quite large, however. When removed, they usually don’t grow back, whereas malignant tumors sometimes do. Unlike most benign tumors elsewhere in the body, benign brain tumors can be life threatening.”

In sum, Cancer can impact multiple parts of the body. Also, Cancer arising in one location can give rise to cancer in other parts of the body.

Where Can Cancer Occur?

There are many forms of Cancer. Further, Cancer can travel throughout the body. Some of the more common forms of Cancer are Bladder, Breast, Colon and Rectal, Endometrial, Kidney, Leukemia, Liver, Lung, Melanoma, Non-Hodgkins Lymphoma, Pancreatic, Prostate and Thyroid.

Has Cancer Been Found to Be Industrially Related? If so, To What Cancers?

There are many documented cases concerning various cancers being found industrial. A significant amount of them relate to Presumptive Cancer Injuries. Presumptive Cancer Injury Claims are applicable to some law enforcement and safety personnel.blood

The following are reported opinions finding industrial cancer. This list, however, is not comprehensive and is simply indicative of the wide variety of cancers that have been found work-related:

  • Appendix Cancer: City of Anaheim v. Workers’ Compensation Appeals Bd., 67 Cal. Comp. Cases 1609, 2002 Cal. Wrk. Comp. LEXIS 1609 (Cal. App. 4th Dist. November 15, 2002) (writ denied)
  • Bladder: San Francisco Chronicle v. Workers’ Comp. Appeals Bd., 82 Cal. Comp. Cases 410, 2017 Cal. Wrk. Comp. LEXIS 23 (Cal. App. 1st Dist. March 01, 2017) (writ denied)
  • Brain: City of Santa Clara Police Dep’t v. Workers’ Compensation Appeals Bd., 74 Cal. Comp. Cases 1173, 2009 Cal. Wrk. Comp. LEXIS 229 (Cal. App. 6th Dist. August 27, 2009) (writ denied)
  • Breast Cancer: County of Ventura v. Workers’ Compensation Appeals Bd., 75 Cal. Comp. Cases 513, 2010 Cal. Wrk. Comp. LEXIS 46 (Cal. App. 2d Dist. April 01, 2010) (writ denied)
  • Colorectal: City of Monterey v. Workers’ Comp. Appeals Bd. (Holley), 82 Cal. Comp. Cases 1490, 2017 Cal. Wrk. Comp. LEXIS 139 (Cal. App. 6th Dist. November 13, 2017)
  • Kidney Cancer: City of Long Beach v. Workers’ Compensation Appeals Bd., 70 Cal. Comp. Cases 109, 2005 Cal. Wrk. Comp. LEXIS 56, 126 Cal. App. 4th 298, 23 Cal. Rptr. 3d 782 (Cal. App. 2d Dist. January 31, 2005)
  • Lung: McAllister v. Workmen’s Compensation Appeals Board 33 Cal. Comp. Cases 660, 1968 Cal. Wrk. Comp. LEXIS 225, 69 Cal. 2d 408, 445 P.2d 313, 71 Cal. Rptr. 697 (Cal. October 4, 1968)
  • Pancreatic Cancer: City of San Diego v. Workers’ Compensation Appeals Bd., 70 Cal. Comp. Cases 241, 2005 Cal. Wrk. Comp. LEXIS 18 (Cal. App. 4th Dist. January 27, 2005) (writ denied)
  • Prostate Cancer: City of Compton v. Workers’ Comp. Appeals Bd. (Branscomb), 76 Cal. Comp. Cases 991, 2011 Cal. Wrk. Comp. LEXIS 127 (Cal. App. 2d Dist. August 15, 2011)
  • Salivary Gland Cancer: City of Sonoma v. Workers’ Comp. Appeals Bd. (Cahill), 76 Cal. Comp. Cases 37, 2010 Cal. Wrk. Comp. LEXIS 246 (Cal. App. 1st Dist. December 16, 2010)
  • Skin Cancer: Seavello v. Workers’ Comp. Appeals Bd., 77 Cal. Comp. Cases 596, 2012 Cal. Wrk. Comp. LEXIS 72 (Cal. App. 4th Dist. May 29, 2012)(writ denied)
  • Spindle Cell Sarcoma: County of Orange v. Workers’ Comp. Appeals Bd. (Barrow), 77 Cal. Comp. Cases 558, 2012 Cal. Wrk. Comp. LEXIS 55 (Cal. App. 4th Dist. May 10, 2012)
  • Tonsil Cancer: County of Fresno v. Workers’ Comp. Appeals Bd. (Shanen), 84 Cal. Comp. Cases 996, 2019 Cal. Wrk. Comp. LEXIS 88 (Cal. App. 5th Dist. October 3, 2019) (Writ Denied)

Are There Any Laws specifically pertaining to Cancer?

Yes. For some safety and law enforcement personnel, there is an evidentiary presumption for cancer which is available to them. This presumption assists them in proving that their cancer was industrially-related. See Labor Code Section 3212.1

What is Permanent Disability? How is it calculated? Why Is Whole Person Impairment Important?

In California, Permanent Disability is calculated by using a formula. The formula is provided for within the Schedule for Rating Permanent Disabilities. For non-psychiatric injuries, in order to calculate the Permanent Disability, pursuant to Labor Code Section 4660(b)(1) the AMA Guides to the Evaluation of Permanent Impairment (5th Edition) is used.

Therefore, an Evaluator will assign a Whole Person Impairment for the Cancer. This assigned Whole Person Impairment will be placed into a formula which is provided for within the Schedule. In doing so, it will generate the Permanent Disability that will be awarded.

Is There A Problem Assigning Whole Person Impairment for Cancer Injuries Using the AMA Guides?

Yes. Per the Medical Unit, in its Competency Examination Study Guide DWC Medical Unit dated May 2017, “Doctors must evaluate and report all ratable impairments resulting from an illness or injury, including cancer, and/or from the effects of treatment for such cancer, found through a full and thorough medical evaluation. It is important for a QME to perform a comprehensive medical evaluation that takes into account not only the primary body part or organ system impacted by industrial cancer, but the full impact of the cancer and its treatment.”

In sum, Cancer Treatment can lead to made conditions which are actually ratable within the Guides. For example, Cancer may require the removal of an organ, the employment of urinary or fecal diversionary devices such as a urostomy bag. While this Guideline is specifically addressed to Qualified Medical Evaluators, these recommendations should also be used by Treating Physicians when assigning impairment.

How Does an Evaluating Physician Take on This Task?

Per the Medical Unit, “[d]ifferent sections of the Guides may apply depending on the impact of the disease and its treatment. Doctors must evaluate and report all ratable impairments resulting from an illness or injury, including cancer, and/or from the effects of treatment for such cancer, found through a full and thorough medical evaluation.” Competency Examination Study Guide DWC Medical Unit May 2017, P. 10

Is There a Concern About Breast Cancer? Why?

In the past, the DIR has noted that there has been some concern whether the whole person impairment aka permanent impairment was “too low due to incomplete or underevaluation of the permanent impairment that may have resulted from the disease.” Competency Examination Study Guide DWC Medical Unit May 2017, P. 10. There is the concern with respect to the fact that gender discrimination is unlawful and impermissible. Therefore, the Guide indicates that “[m]edical providers should be alert and sensitive to this issue and should be vigilant in reviewing medical evaluations for workers who have suffered breast or other cancers to ensure that such evaluations accurately apply the AMA Guides and reflect the full range of impairment that such workers may have suffered from the cancer and its treatment.” Supra at P. 10.

The Guide provides an extensive assessment that should be made in the case of breast cancer.

“For breast cancer for example, the medical report should reflect that the QME has conducted a comprehensive medical examination of the injured worker and considered not only the impact from any mastectomy, lumpectomy, or lymph node surgery, but also any impairment resulting from other forms of treatment such as chemotherapy, radiation, and/or long-term medications taken to prevent recurrence. The impairment assessment should reflect consideration of the following factors, without limitation: (1) the presence or absence of the breast(s); (2) the loss of any function of the upper extremity (or extremities) due to surgery, including range of motion, loss of strength, neurological abnormalities and pain, lymphedema, etc.; (3) skin disfigurement and scarring; (4) any chronic pain; (5) any permanent impairment resulting from chemotherapy treatment, including any onset of premature menopause, loss of ovarian function, permanent neuropathy, or any other permanent side effects; (6) any permanent impairment resulting from radiation treatment; (7) any permanent impairment resulting from the side effects of aromatase inhibitors or other hormone therapy prescribed to prevent recurrence, including joint pain, fatigue, premature menopause or loss of bone density; and, (8) any other permanent impairment resulting from the breast cancer or its treatment. The completed evaluation must delineate all the factors present in the particular case, together with the WPI assigned to each, and a reference to the supporting sections and tables of the AMA Guides.” Supra at P. 10-11.

Note: This is an excellent example of considerations required to address Cancer Whole Person Impairment. This type of analysis should likewise take place when addressing other forms of Cancer.

What If I Need Legal Advice?

If you would like a “free” consultation concerning any workers’ compensation case, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. They have been helping people in Central and Southern California deal with their worker’s compensation cases for 28 years. for more information.

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