PROSTATE CANCER AND WORKERS’ COMPENSATION: WHAT YOU NEED TO KNOW

Prostate Cancer is a medical condition for which there may be an element of “industrial causation.” Since Prostate Cancer, in certain circumstances, may be industrially-related, an Injured Worker could make a workers’ compensation claim for their Prostate Cancer. If the Workers’ Compensation Claim was accepted, the Injured Worker would be entitled to receive the full range of benefits.  This includes disability payments, medical care, and death benefits.

This article will discuss Prostate Cancer, Prostate Cancer Treatment, Permanent Disability as a result of Prostate Cancer, Industrial Causation of Prostate Cancer, Labor Code Statutes relating to Prostate Cancer, and Caselaw relating to decisions involving Prostate Cancer.

What is Prostate Cancer? What are the Signs of Prostate Cancer? 

Prostate Cancer is a disease in the Prostate Gland. It occurs when cells in the prostate grows abnormally and uncontrollably. It is a slow growing cancer which may cause symptoms with respect to both urine flow and sexual function. Additionally, there may be more generalized symptoms such as pain in the low back or pelvis area, weakness or numbness in the legs or feet, dizziness, or fatigue. Sources: National Cancer Institute and American Cancer Society.

How is Prostate Cancer Diagnosed?

Per the American Cancer Society, there are many tests that are used to both diagnose and stage prostate cancer. Basically, an individual will go through a series of testing in order to assist in diagnosis. Urology is the field of medicine that address Prostate Cancer. Doctors who specialize in Urology are Urologists.

Tests include

  • Prostate-Specific Antigen (PSA) [Blood Test]
  • Digital Rectal Examination (DRE) [Physical Examination Test]
  • Prostate Biopsy [Surgical Procedure] Tissues are removed from the Prostate. A Pathologist makes a determination as to whether the tissue is negative for cancer, suspicious for cancer, or positive for cancer. Note: negative results does not mean that the individual should not be concerned about cancer. Further monitoring should be conducted.
  • Imaging Studies: X-Rays, Magnetic Resonance Imaging (MRI), Ultrasound (Transrectral ultrasound aka TRUS), Radiology, Bone Scan, Computed Tomography (CT), and Lymph Node Biopsy

What are the Non-Industrial Risk Factors of Prostate Cancer?

There are a number of risk factors for prostate cancer. These risk factors include family history of prostate cancer, inherited genetic mutations, conditions such as prostatitis, inflammation of the prostate, and benign prostatic hyperplasia or BPH, a noncancerous enlargement of the prostate gland, diet high in red meats and high-fat dairy and low in fruits and vegetables, obesity, Age: approximately 60 percent of cases are diagnosed in men older than 65, Race and ethnicity (note: African-American men and Caribbean men of African ancestry are more likely to be diagnosed with prostate cancer.)

Please note: Research has also shown that a healthy lifestyle, including a well-balanced diet and maintaining a healthy weight, may reduce prostate cancer risk.

What are the Industrial Risk Factors for Prostate Cancer? Are There Other Factors?

Prostate Cancer can be work-related in two fashions. First, there is a scientific basis for showing that there is a causative factor in certain occupations or occupational exposures with respect to the development of Prostate Cancer. Second, there is a legal basis for showing a causative factor. A legal basis is a statutory presumption. For certain law enforcement officers and safety officers, they are afforded a “Cancer Presumption.” If they fit within the elements of the “Cancer Presumption,” they can be legally found to have industrial cancer without having to prove it on a scientific basis. Their Departments, however, are afforded the opportunity to “rebut the presumption.”

How is Prostate Cancer Work-Related?

Prostate Cancer can be work-related in a variety of manners. Prostate Cancer can be work-related with respect to certain:

  • Worksite Exposures: Certain Pesticides, Chromium
  • Occupations: Administrative and Management Positions, Firefighting and Law Enforcement, Pilots, and Agriculture
  • Work Activities: Shift Work
  • Labor Code Sections: Labor Code Presumption for Cancer 3212.1

See Cancer Med. 2018 Apr; 7(4): 1468–1478, Published online 2018 Mar 1. doi: 10.1002/cam4.1358 Prostate cancer surveillance by occupation and industry: the Canadian Census Health and Environment Cohort (CanCHEC)

Jeavana Sritharan, Jill MacLeod,  Shelley Harris, Donald C. Cole, Anne Harris, Michael Tjepkema, Paul A. Peters, and Paul A. Demers; and J Cancer Prev. 2019 Jun; 24(2): 91–111.

Published online 2019 Jun 30. doi: 10.15430/JCP.2019.24.2.91, Occupational Risk Factors for Prostate Cancer: A Meta-analysisSrmena Krstev and Anders Knutsson

What is the Statutory Basis for Supporting Industrial Prostate Cancer?

Labor Code Section 3212.1 provides for a “General” Cancer Presumption. This Presumption applies to certain Safety and Law Enforcement Officers. This Presumption has been used to specifically make claims for “Prostate Cancer.” It provides as follows:

“(a) This section applies to all of the following:

(1) Active firefighting members, whether volunteers, partly paid, or fully paid, of all of the following fire departments:

(A) A fire department of a city, county, city and county, district, or other public or municipal corporation or political subdivision.

(B) A fire department of the University of California and the California State University.

(C) The Department of Forestry and Fire Protection.

(D) A county forestry or firefighting department or unit.

(2) Active firefighting members of a fire department that serves a United States Department of Defense installation and who are certified by the Department of Defense as meeting its standards for firefighters.

(3) Active firefighting members of a fire department that serves a National Aeronautics and Space Administration installation and who adhere to training standards established in accordance with Article 4 (commencing with Section 13155 ) of Chapter 1 of Part 2 of Division 12 of the Health and Safety Code.

(4) Peace officers, as defined in Section 830.1, subdivision (a) of Section 830.2 , and subdivisions (a) and (b) of Section 830.37, of the Penal Code , who are primarily engaged in active law enforcement activities.

(5)(A) Fire and rescue services coordinators who work for the Office of Emergency Services.

(B) For purposes of this paragraph, “fire and rescue services coordinators” means coordinators with any of the following job classifications:  coordinator, senior coordinator, or chief coordinator.

(b) The term “injury,” as used in this division, includes cancer, including leukemia, that develops or manifests itself during a period in which any member described in subdivision (a) is in the service of the department or unit, if the member demonstrates that he or she was exposed, while in the service of the department or unit, to a known carcinogen as defined by the International Agency for Research on Cancer, or as defined by the director.

(c) The compensation that is awarded for cancer shall include full hospital, surgical, medical treatment, disability indemnity, and death benefits, as provided by this division.

(d) The cancer so developing or manifesting itself in these cases shall be presumed to arise out of and in the course of the employment.  This presumption is disputable and may be controverted by evidence that the primary site of the cancer has been established and that the carcinogen to which the member has demonstrated exposure is not reasonably linked to the disabling cancer.  Unless so controverted, the appeals board is bound to find in accordance with the presumption.  This presumption shall be extended to a member following termination of service for a period of three calendar months for each full year of the requisite service, but not to exceed 120 months in any circumstance, commencing with the last date actually worked in the specified capacity.

(e) The amendments to this section enacted during the 1999 portion of the 1999-2000 Regular Session shall be applied to claims for benefits filed or pending on or after January 1, 1997, including, but not limited to, claims for benefits filed on or after that date that have previously been denied, or that are being appealed following denial.

(f) This section shall be known, and may be cited, as the William Dallas Jones Cancer Presumption Act of 2010.”

Is There Caselaw concerning Industrial Prostate Cancer?

Yes. There has been some significant litigation with respect to Prostate Cancer.

Most caselaw has related around the “Cancer Presumption” and the issues related to it. Issue of interest in presumption litigation can include the burden of proof, the potential rebuttal of the presumption and the statute of limitations. The following are a sample of cases. County of Fresno vs. WCAB (2019) 84 C.C.C. 996 (writ denied) (Issue: whether claim barred by Statute of Limitations); County of Orange vs. WCAB (2005) 70 C.C.C. 1499 (Prostate Cancer found industrial. Defendant failed to rebut presumption.) Faust vs. City of San Diego (2003) 68 C.C.C. 1822 (Panel Decision) (Issue: the procedure concerning both establishing presumption and rebutting the presumption. In summary, in a case where an applicant has invoked the presumption of section 3212.1, the applicant has the initial burden of showing (1) that he or she was employed in an included capacity; (2) that he or she has been exposed to a known carcinogen during the employment; and (3) that he or she has developed or manifested cancer. When the applicant has made this showing, the burden shifts to the defendant to rebut the presumption by evidence that: (1) the primary site of the cancer has been identified; and (2) that the carcinogen is not reasonably linked to the disabling cancer.)

What is Permanent Disability Impairment for Prostate Cancer?

Permanent Disability Impairment for Prostate Cancer is multi-factorial. Prostate Cancer directly impacts two Activities of Daily Living (ADLs), urination and sexual function. The AMA Guides for Permanent Impairment, 5th Edition, has a Table 7-8 which addresses the Criteria for Rating Permanent Impairment Due to Prostate and Seminal Vesicle Disease discusses Prostate Cancer. It provides that “[f]or Prostate and seminal vesicle ablation; occurs almost exclusively with extirpative surgery for prostate cancer; combine impairment estimates for prostate and seminal vesicle loss with impairment for sexual dysfunction or urinary incontinence if present (see the Combined Values Chart, p. 604.)”

In sum, Permanent Disability Impairment from Prostate Cancer can be complex due to the nature and extent of both the condition and the treatment that has been provided.

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.

Photo by Gus Moretta on Unsplash

WHAT IS ZERO PERCENT WHOLE PERSON IMPAIRMENT?: INJURED WORKERS WITH MEDICAL REPORTING INDICATING ZERO PERCENT WHOLE PERSON IMPAIRMENT: WHAT YOU NEED TO KNOW

In California Workers’ Compensation Law, Medical Evaluators are asked to report and determine an Injured Workers’ Permanent Disability.   In California, Permanent Disability is generated by the Medical Evaluator’s reporting.   The Evaluator’s reporting assesses the Injured Worker’s Permanent Disability in the form of a Whole Person Impairment (WPI.)  Whole Person Impairment is generated by using the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th Edition (AMA Guides.)

 

Sometimes, Injured Workers are assigned a zero percent whole person impairment by an Evaluator for their permanent disability. A zero percent whole person impairment has significant implications for an Injured Worker.  This article will discuss (a) the meaning of “whole person impairment,” (b) what a “zero” whole person impairment means? and (c) what “zero” percent whole person impairment impacts other benefits?

What Is Whole Person Impairment (WPI)?

American Medical Association Guides to the Evaluation of Permanent Impairment, 5th Edition, on Page 603, defines “Whole Person Impairment” as the “percentages that estimate the impact of the impairment on the individual’s overall ability to perform activities of daily living, excluding work.”

How Does the AMA Guides Defines Zero Percent Disability?

In the AMA Guides, “[a] 0% whole person (WP) impairment rating is assigned to an individual with an impairment if the impairment has no significant organ or body system functional consequences and does not limit the performance of the common activities of daily living indicated in Table 1-2.” [emphasis added.]

What Are The Activities of Daily Living( ADLs) that are to be addressed?

Table 1-2 of the AMA Guides provides a list of Activities of Daily Living.

Table 1-2, defines “Activities of Daily Living Commonly Measured in Activities of Daily Living (ADL) and Instrumental Activities of Daily Living (IADL) Scales”  These ADLs include:

Self-care Urinating, defecating, brushing teeth,

personal hygiene combing hair, bathing, dressing, oneself, eating.” [emphasis added.]

Communication Writing, typing, seeing, hearing, speaking” [emphasis added.]

Physical activity Standing, sitting, reclining, walking, climbing stairs” [emphasis added.]

Sensory function Hearing, seeing, tactile feeling, tasting, smelling” [emphasis added.]

Nonspecialized Grasping, lifting, tactile hand activities discrimination” [emphasis added.]

Travel Riding, driving, flying” [emphasis added.]

Sexual function Orgasm, ejaculation, lubrication, erection”  [emphasis added.]

Sleep Restful, nocturnal sleep pattern” [emphasis added.]

What Should Happen in Your Evaluation to Address ADLs?

To properly assess the Industrial Injury’s impact on ADLs, the Evaluator should interview the Injured Worker about their ADLs, they should have the Injured Worker address them via filling out an inventory of their ADLs and their difficulties concerning them.   Also, the Evaluator should look to their examination, any testing done, and their review of records to further give them insight as to the injury’s impact on ADLs.

How Can a Zero WPI Be Wrong?

It is this author’s contention that if the Evaluation Reporting shows that there is “limited performance of the common activities of daily living” then, per the AMA Guides, by their definition, it cannot be a Zero Impairment.   Therefore, the report should be questioned.  This can be done by deposition of the Evaluator, interrogatory of the Evaluator, or the offering of another Evaluator with differing opinion.

How Does a Zero Percent WPI Impact the Eligibility to Obtain a Job Displacement Voucher?

Labor Code Section 4658.7, provides that for injuries on or after 1/1/13, a requirement for obtain a job displacement voucher is that the injury caused a permanent partial disability. A “zero” percent whole person impairment assessment will, in most circumstances, will yield a zero percent permanent disability.  A zero percent disability will bar the Injured Worker from obtaining a voucher.

As an Injured Worker With a Zero WPI Report, What Should I Do?

You need to reach out a Practitioner within Workers’ Compensation to evaluate the report to see what can be done.  Don’t be discouraged by the Medical Evaluators report.  Seek advice to see if there are problems with the report and if there is a strategy to correct the problem so that you can obtain a “fair and accurate” assessment of your impairment.   There is caselaw to support this. See Almaraz Guzman vs. Environmental Recovery Service (2009) 74 C.C.C. 1084.

What If I Need Advice?

If you would like a free consultation regarding workers’ compensation, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. We have been helping people in Central and Southern California deal with their workers’ compensation cases for 27 years. Contact us today for more information.

 

     

 

 

WORKERS’ COMPENSATION ATTORNEYS AND TRIALS: INJURED WORKERS, DISPUTED CASES AND WORKERS’ COMPENSATION: WHAT YOU NEED TO KNOW

Workers’ Compensation Attorneys can play a vital role in Workers’ Compensation Trials. A Workers’ Compensation Attorney’s abilities can impact on an Injured Worker’s recovery of benefits.

This article will discuss the role of Workers’ Compensation Attorneys in the Trial Process and how they assist Injured Workers in proving up their right to benefits.

Who Are Workers’ Compensation Attorneys?

Technically, there are no “Workers’ Compensation Attorneys.” Attorneys who practice workers’ compensation are licensed in the State of California to practice law. This means that they are eligible to practice any area of law within the State. Workers’ Compensation Attorneys receive the label as being a “Workers’ Compensation Attorney” based upon the fact that a significant part of their practice relates to the handling of workers’ compensations cases.

Workers’ Compensation Attorneys craft their trial skills in many ways. There are various organizations that provide training and education. There is a certified specialist program from the State Bar, there is the Workers’ Compensation Section of the California Lawyers Association (CLA) which provides educational programs, and there is California Applicant Attorneys Association (CAAA) which provides educational programs. Also, the Division of Workers’ Compensation from the Department of Industrial Relations that also provides educational programming. Many attorneys participate in the many different organizations to sharpen their skills.

Finally, many Workers’ Compensations Attorneys have “decades” of experience in representing injured workers and doing workers’ compensation trials. You will find many attorneys who have participated in over 100 trials.

The “Art of the Trial”

A Workers’ Compensation Trial can be viewed as a form of “art.” A well-done Trial is a wonderful thing to observe. When every participant “has their game on,” it is sheer entertainment. It is akin to a game of chess played with law, emotions, truth, lies, cunning, and actual stakes. The chess pieces at the trial include the Judge, the Court Reporter, the Attorneys, and the Witnesses.

The Workers’ Compensation Community has quite a number of skilled and experienced attorneys who are up to the challenge. There have been many outstanding trials. There have been times that I have taken the time out of my busy schedule to sit and observe other parties trials for both educational and entertainment purposes.

In those moments of a well-tried case, you feel that justice is taking place. The parties have been given a fair opportunity to present their case. These moments occur when Judge manages the courtroom with their demeanor and actions. The Judge plays a vital role in maintaining decorum and keeping the trial progressing. At the end of a good trial, the Injured Worker should have had the ample opportunity to be heard in a respectful manner.

In sum, the Constitutional Mandate of “Substantial Justice” will have been achieved.

As Far as Trial, What Skills Does an Attorney Need?

The answer to this question must be broken up into components. Pre-Trial, Trial, and Post-Trial.

Trial: I will first approach this question with respect to the Trial date itself. When I was an Associate Attorney, at a prior law office, on a rare occasion, I assigned to try a case at the last moment. In that circumstance, it was all about Trial Skills in handling the matter. There was no opportunity for Pre-Trial preparation.

Trial Skills include:

  • Proper understanding of WCAB Policy and Procedures
  • Proper reviewing of the file
  • Proper understanding of the issues
  • Proper interaction with the Injured Worker and Witnesses to ascertain testimony
  • The ability to establish a foundation for the issues and evidence and present them so that they are reflected in the record

With all those in mind, the Workers’ Compensation Attorney should be able to present the case, establish all of the facts and get admitted into evidence all pertinent exhibits necessary to “prove up the case.” This can include placing the Injured Worker and possibly some other witnesses on the stand to testify to “prove up the issues.” Also, they must be able to effectively cross-examine any defense witnesses.

Are Workers’ Compensation Trials Different than Civil Trials? Does It Matter?

Yes. Workers’ Compensation cases are tried at the Workers’ Compensation Appeals Board before a Workers’ Compensation Judge. Unlike Civil Cases, there is no jury. The proceeding is considered as Administrative Law.

In Workers’ Compensation, the Judge is the “trier-of-fact” rather than a jury. Therefore, the Trial Lawyer dramatics that may be employed in a civil trial may be unwarranted. Sometimes, the Workers’ Compensation Judge, for any given trial, channels the famous line from the fictional character from the TV Show “Dragnet.” As Joe Friday, the Detective for the LAPD, used to saw, “just the facts, ma’am.” Many times, Judges want to avoid trial drama and simply want “the facts.”

What are Workers’ Compensation Attorney’s Pre-Trial Activities?

Pre-Trial Activities involve framing of the legal issues of import for the case and establishing the facts and expert opinion to support the various positions. In workers’ compensation, the expert opinion is generally the employment of a medical expert such as a physician. This expert opinion is presented via medical reporting and deposition. In essence, prior to Trial, the Workers’ Compensation Attorney has all already established all the facts and opinions to support a favorable award. The trial may essentially be whether “the facts” either exist or are truthful in nature. By exist, for example, it could be as simple as the Applicant establishing the fact that they fell off of a ladder. By truthful, it is a situation in which where the Judge may have to decide between the testimony of the Injured Worker versus the testimony of an Employer Witness.

What are Workers’ Compensation Attorneys’ Post-Trial Activities?

Many times, there are Post-Trial activities. There are times at which the Workers’ Compensation Judge may request briefing of the issues from the parties. Therefore, a quality Workers’ Compensation Attorney will have writing skills as well as trial skills. Writing skills involve legal knowledge combined with the ability to express arguments and contentions.

Additionally, there may be appeals relating to an underlying Trial Decision from the Workers’ Compensation Judge. Therefore, a Workers’ Compensation Attorney’s ability to prepare appeals such as Petitions for Reconsideration is also of import. Further, the ability to prepare opposition briefing to a Defendant’s Petition for Reconsideration is required as well.

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.

Photo by Yancy Min on Unsplash

PERIPHERAL NEUROPATHIES AND WORKERS’ COMPENSATION: WHAT YOU NEED TO KNOW

Many work injuries give rise to Peripheral Neuropathies. Peripheral Neuropathy, for all intents and purposes, means damage to the nerves. Nerve Damage can come from many sources. Familiar Neuropathic Injuries include Carpal Tunnel Syndrome and Herniated Disks in the Spine which compress upon nerves.

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The Disability Evaluation Unit (DEU), DEU Raters, Permanent Disability Ratings & Your Workers’ Compensation Case: What You Need To Know

In Workers’ Compensation, Permanent Disability Ratings are a part of the compensation benefits received by Injured Workers. As an Injured Worker goes through their workers’ compensation claim, they receive medical reporting from Treating Doctors, Qualified Medical Evaluators, Agreed Medical Evaluators or Regular Physicians which provide for Permanent Disability Impairments.

The Permanent Disability Impairment Reports must be taken and placed into a Permanent Disability Rating Formula to determine the Permanent Disability Percentage. This formula provides for adjustments for age and occupation. The Department of Industrial Relations has a special unit which assists the parties in analyzing the medical reports and providing the permanent disability percentage. This article will discuss this special unit, the Disability Evaluation Unit. Continue reading

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