California Requires Proof Of Carcinogen Exposure For Workers’ Comp Presumption

Chris Fain worked as a police officer for the City of Fresno, California from 1972 to 2006. Within a month after his retirement, Fain submitted an application for workers’ compensation benefits seeking coverage for a tumor in his head. Fain subsequently passed away and his wife pursued his workers’ compensation claim.

Under California law, the cancer of a firefighter or peace officer is presumed to be caused by the job if the employee demonstrates that he is exposed to a known carcinogen and that the cancer developed and manifested itself during active service or within 60 months following termination of service. The question in the claim brought by Fain’s widow was whether Fain had been exposed to known carcinogens.

The California Court of Appeals found that there had been no proof of such exposure. The evidence in the case focused on gasoline and weapon solvents. However, the Court found the testimony to be too vague to establish that Fain was significantly exposed to either of the compounds:

“Joseph Oldham, Fresno’s fleet acquisition supervisor, familiar with the City’s vehicle yard, only discussed vehicle vapors relating to fueling dispensers, but never described with any specificity what agents the vapors potentially released or whether he even knew if Fain had ever been exposed to such vapors. The range master described that he and Fain used unknown weapon solvents made available by the City that were ‘kind of like kerosene.’ Although such chemicals may have been toxic, Mrs. Fain did not present evidence that any vehicle fuels or weapon solvents to which Fain may have been exposed were actually carcinogens.”

Fain v. Workers’ Compensation Appeals Board, 2008 WL 4899889 (Cal.App. 2008).

This article appears in the February 2009 issue