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:
** *
(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) 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.
** *
(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
...