The RAND Corporation, a California Thinktank, issued a study concerning Industrial Cancers. Dworsky, Michael and Carolyn M. Rutter, Industrial Cancers in California’s Workers’ Compensation System: Evidence on Earnings Losses and Disability Benefits. Santa Monica, CA: RAND Corporation, 2020. https://www.rand.org/pubs/research_reports/RR4320.html.
This RAND Study addressed issues such as differences between worker characteristics, claim outcomes, differences across occupations, claims denials and earnings losses. How and what they studied are of interest to injured workers. The article tells us about the nature of industrial cancer claims, who files industrial cancer claims, what occupations file industrial cancer claims, and what are the results of these claims.
This article will discuss important facts from the RAND study which is relevant to Injured Workers and how their cancer claim will be addressed within the workers’ compensation system.
Fact: Cancer Presumptions Matter
The Rand Study found that “[w]orkers with cancer claims in California are overwhelmingly—but not exclusively— public safety workers covered by presumptions.”
Impliedly, the presumptions encourage workers who are afforded the presumption to pursue workers’ compensation claims.
The Rand Study did a sample and found that there was the following breakdown:
46% PEACE OFFICERS: a category that includes police, sheriffs’ deputies, certain correctional officers, and a variety of other law enforcement agents employed by state or local government
11% OTHER OCCUPATIONS
(Note: The numbers are not a mistake. The math in the article adds to 101 percent.)
In contrast, OTHER OCCUPATIONS, who are not employed by state or local government agencies have 95 percent of the non-cancer claims in the state. Supra Rand Study.
Who Files Cancer Claims That Are Not Presumptive? What Types of Employment Get Occupational Cancer?
Per the Rand Study, it is noted that “[a]mong these other occupations, manufacturing, utilities, construction, mining, quarrying, and gas extraction have elevated rates of cancer claims compared with their prevalence in the overall workers’ compensation caseload.”
It is important to note that many of these occupations work with chemicals that may be cancer causing. For example, there may be exposure to benzene. “The Department of Health and Human Services (DHHS) has determined that benzene causes cancer in humans. Long-term exposure to high levels of benzene in the air can cause leukemia, cancer of the blood-forming organs.” https://emergency.cdc.gov/agent/benzene/basics/facts.asp Thus, certain chemical exposures can be evidence of industrial causation in occupational cancer cases.
Is There an Age Difference in Cancer Claims Versus Other Claims?
Yes. Older workers are more likely to file cancer claims. Per the Rand Study, “[w]orkers with cancer claims are also an average of 6.3 years older than others in the workers’ compensation system.” This makes since in that in many cancer cases, there is the issue of latency. Per the National Cancer Institute, latency is “The time that passes between being exposed to something that can cause disease (such as radiation or a virus) and having symptoms.” In sum, certain cancers take some time to become symptomatic. Therefore, it is logically expected that the age of Injured Workers filing claims would be older versus younger.
Is There a Difference Between the Sexes With Respect to Cancer Claims?
Yes. There is a difference in sexes as to who files industrial Cancer Claims. Per the Rand Study, “[t]hey are also overwhelmingly male: just 13.6 percent of workers with cancer claims in our sample were female.”
86.4 percent of the Cancer Claims were Male.
13.6 percent of the Cancer Claims were Female.
This is in contrast with Non-Cancer Claims for which, per Rand,
41.2 percent of Non-Cancer Claim were Female
58.8 percent of Non-Cancer Claim were Male
Are Cancer Claims Readily Accepted?
No. Per the Rand Study, “cancer claims are far more likely (28.5 percent) to result in a full or partial denial than are other claims (8.6 percent).”
Note: Cancer claims are often very complicated. This is especially with respect to obtaining information and documentation with respect to the Injured Worker’s exposure to cancer causing agents during their employment. Further, due to the issues of latency, Insurance Companies will want to conduct extensive discovery with respect to determining their liability for the cancer. For example, even if the cancer is industrial, this does not necessarily mean that the particular Insurance Carrier for a particular year of coverage is liable.
What Is the Evidentiary Standard for Non-Presumptive Cancer Cases?
Per the Rand Study, it states that “Workers not covered by cancer presumptions can also file claims for occupational cancers, but these claims are compensable only if the worker can demonstrate that occupational exposures were a contributing cause to their cancers—a much higher evidentiary bar given the high latency and potentially complex causation of most cancers.” [emphasis added]
This language is in line with the California Supreme Court. The landmark case on causation is South Coast Framing, Inc. v. Workers’ Comp. Appeals Bd. (2015) 61 Cal.4th 291 [188 Cal.Rptr.3d 46, 349 P.3d 141].) In that case, it was noted as a standard that “[The injury] arises out of the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises “out of” the employment. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workman would be equally exposed apart from the employment.’””[emphasis added]
An example of how this standard applies is the case of San Francisco Chronicle. In the case of 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,) the contributing cause standard was met when “Internal medicine AME Matthew W. Duncan, M.D., opined that it was medically probable that Applicant’s bladder cancer was industrial, given his long history of exposure to ink products in handling newspapers without protection while working for Defendant. Dr. Duncan stated in his multiple reports and deposition testimony that he based his opinion on several scientific studies demonstrating an increased risk of bladder cancer resulting from exposure to printing inks, the material safety data sheets (MSDS) pertaining to the chemicals in the printing ink used by Defendant, several of which were identified by OSHA as possible carcinogens, and literature indicating that the particular pigment in the black ink used in newspapers was potentially carcinogenic and linked to bladder cancer, as were other chemicals in the ink such as naphthylamine, styrene, 4-aminobiphenly, and benzidine.”
Note: As you can see, an Expert Medical Opinion analyzing cancer causing agents was the key to proving up an industrial 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.