Solis v. County of Los Angeles, 010101 CAWC, ADJ12048035

Case DateJanuary 01, 2001
CourtCalifornia
ALEX SOLIS, Applicant
v.
COUNTY OF LOS ANGELES, permissibly self-insured; administered by SEDGWICK CLAIMS MANAGEMENT, INC., Defendants
Adjudication No. ADJ12048035
California Workers Compensation Decisions
Workers’ Compensation Appeals Board State of California
August 13, 2021
         Van Nuys District Office          OPINION AND ORDER DENYING PETITION FOR RECONSIDERATION           CRAIG SNELLINGS, COMMISSIONER          We have considered the allegations of the Petition for Reconsideration and the contents of the report of the workers’ compensation administrative law judge (WCJ) with respect thereto. Based on our review of the record, and for the reasons stated in the WCJ’s report, which we adopt and incorporate, we will deny reconsideration.          Defendant did not raise the issue of the applicability of a Dispute Resolution Agreement (DRA) at trial. That issue is therefore waived. Issues not raised at the first opportunity that they may properly be raised are waived. (Lab. Code, § 5502(e)(3), see also Gould v. Workers’ Comp. Appeals Bd. (1992) 4 Cal.App.4th 1059 [57 Cal.Comp.Cases 157], Griffith v. Workers’ Comp. Appeals Bd. (1989) 209 Cal.App.3d 1260 [54 Cal.Comp.Cases 145].) We further note that the DRA is not in evidence.          For the foregoing reasons,          IT IS ORDERED that the Petition for Reconsideration is DENIED.           I CONCUR, DEIDRA E. LOWE, COMMISSIONER, ANNE SCHMITZ, DEPUTY COMMISSIONER          SERVICE MADE ON THE ABOVE DATE ON THE PERSONS LISTED BELOW AT THEIR ADDRESSES SHOWN ON THE CURRENT OFFICIAL ADDRESS RECORD.          ALEX SOLIS STRAUSSNER SHERMAN LOS ANGELES COUNTY COUNSEL’S OFFICE          REPORT AND RECOMMENDATION OF WORKERS’ COMPENSATION ADMINISTRATIVE LAW JUDGE ON PETITION FOR RECONSIDERATION          INTRODUCTION:          On June 14, 2021, the Defendant filed a timely and verified petition for reconsideration dated June 14, 2021, alleging that the undersigned WCJ erred in his Findings of Fact & Award dated May 24, 2021. The Defendant contends that the independent medical review reports and deposition testimony of Jeffrey A. Hirsch, M.D., finding that the Applicant did not sustain industrial injury, should be binding on the parties notwithstanding Dr. Hirsch’s failure to rebut the presumption of compensation pursuant to Labor Code § 3212.1. In addition, the Defendant contends that Dr. Hirsch’s opinion that the Applicant is permanently totally disabled is not substantial medical evidence because his cancer is not in remission.          STATEMENT OF FACTS:          The Applicant, while employed during the period August 2, 1985 to February 28, 2019, as a firefighter for the County of Los Angeles, claimed to have sustained industrial injury to his parotid gland (in the form of a parotid tumor).          The Applicant was evaluated by Dr. Hirsch, who acted as the independent medical examiner, and issued several reports and testified in a deposition regarding this case. Dr. Hirsch concluded that the Applicant’s parotid tumor was non-industrial, but resulted in 100% permanent disability.          On May 11, 2021, the parties appeared before the undersigned WCJ for trial requesting adjudication of, among other issues, injury arising out of and in the course of employment and permanent disability.          On May 24, 2021, the undersigned WCJ issued his Findings of Fact & Award that the Applicant sustained an industrial injury resulting in 100% permanent disability.          It is from this decision that the Defendant claims to be aggrieved.          DISCUSSION:          INJURY AOE/COE (CANCER PRESUMPTION)          Pursuant to Labor Code § 3212.1, a police officer who is exposed to a known carcinogen and develops or manifests cancer is entitled to a presumption that the cancer is industrially caused. The presumption may be rebutted (1) by evidence that the primary site of the cancer has been established and (2) by evidence that exposure to the recognized carcinogen is not reasonably linked to the disabling cancer.          Labor Code § 3212.1, as amended in 2010[1], provides, in relevant part:
(a) This section applies to all of the following:
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(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.
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(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.
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(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
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