SAN FRANCISCO — South San Francisco is not entitled to help from Pacifica to pay a settlement for the cancer of a firefighter who worked for both cities, according to a recent appeals court decision.
California's 1st District Court of Appeal, 5th Division affirmed a Workers' Compensation Appeals Board decision in June that the firefighter developed cancer while he was employed by South San Francisco. Under that determination, the city of South San Francisco (CSSF) cannot expect the city of Pacifica to chip in for the settlement that South San Francisco already has paid, Judge Terence L. Bruiniers wrote the court's Feb. 26 decision.
South San Francisco's claim that Pacifica should pay part of the settlement under California's Labor Code Section 3212.1 didn't impress the appeals court, according to the decision.
"CSSF argues that applying a lower rebuttal standard to contribution proceedings would encourage employers to deny presumptive claims and would result in additional denials and litigation of presumptive cases," Bruiniers wrote in the court's 18-page decision.
"CSSF does not explain why it would be less probable, rather than more, that a public safety employer subject to the presumption would seek to join any other potentially liable employer in the employee claim proceeding if the section 3212.1 presumption applied to a contribution claim. But litigation between employers subject to the section 3212.1 presumption does not require participation by the employee, and an employer’s unreasonable delay or refusal to pay benefits is subject to sanction."
Judges Barbara J.R. Jones and Mark B. Simons concurred in the decision.
The battle of South San Francisco against the Workers' Compensation Appeals Board and Pacifica stems from the case of Richard Johnson, who was a firefighter for South San Francisco from 1973 to 2001 and for Pacifica since 2001, according to information in the appeal's court's decision. In 2005, Johnson developed a nasal obstruction and later found out a growth on his neck was a cancerous tumor, and then a growth on his neck which turned out to be a tumor, according to the decision.
The relevant portion of California's Labor Code, Section 3212.1, applies a presumption of industrial causation for such cancer but it wasn't clear when Johnson's cancer developed, while fighting fire for South San Francisco or Pacifica, according to the decision. Johnson filed against his then-employer, Pacifica, which denied his claim and joined South San Francisco to resist paying anything, according to the decision.
South San Francisco eventually settled with Johnson and asked its litigation partner, Pacifica, to pitch in to recoup part of that settlement, according to the decision. The matter went before an arbitrator, who relied heavily on estimates by a medical evaluator approved by all parties that the latency period for Johnson's cancer was at least a decade, according to the decision.
That estimate pushed the exposure period to 1996 or 1997 when Johnson was employed by South San Francisco, according to the decision. However, the medical evaluator also doubted that the sort of exposures to which firefighters are generally exposed would have caused cancer, according to the decision.
The arbitrator ruled that Pacifica didn't have to pay because the latency period of Johnson's cancer suggests that Johnson probably developed cancer while he was employed by South San Francisco and the industrial causation presumption of Section 3212.1 applied, according to the decision.
South San Francisco asked the Workers' Compensation Appeals Board for a reconsideration, which the appeals board denied last June. South San Francisco appealed then appealed to the First District, which handed down its decision last month affirmed the appeals board's decision.
"We simply do not find that same worker protection policies embodied in section 3212.1 implicated in allocation of liability between employers," the state appeals court's decision said.