Lewis, Marenstein, Wicke, Sherwin & Lee
10/4/22 — Governor Newsom recently signed into law legislation which significantly strengthens the cancer presumption for peace officers. As most of you know, cancer is presumed industrial for peace officers provided they meet necessary criteria set forth in the Labor Code. If a peace officer is diagnosed with cancer and the primary site of the cancer is identified, the cancer is presumed to be job related if the cancer develops or manifests itself during the time the peace officer is employed or up to ten (10) years from the last day of work.
The time in which the cancer presumption applies after retiring depends on the length of service of the peace officer. In order to get the full ten year extension, an officer would need to have worked 40 years. Further, the peace officer must show that he/she was exposed to a known carcinogen while employed. Once those criteria are met, the cancer presumption applies.
Well then, why are you asking is it so difficult to get my cancer claim accepted by my employer? Isn’t it automatic? One would think it would be pretty easy. Remember, however, you’re dealing with a public agency and their aim is to delay and deny so it often takes months for a claim to be accepted and workers’ compensation benefits to be provided.
In the normal claims process the employer has up to 90 days from the date you file a claim to investigate the claim and decide if they will accept or deny your claim. During that 90-day period, the employer is required to conduct a reasonable investigation into your claim and try to schedule some type of medical exam to address the issues of causation. The reality is that in most cases, the employer does no investigation and simply sits on the claim until they are made to do something. This results in significant delays for the injured worker in obtaining necessary medical treatment and payment of temporary disability. Whether the claim is for cancer, cardiovascular problems or orthopedic issues, the delays are unfortunate and prejudicial to the peace officer.
Senate Bill 1127, which was approved by the Governor on September 29, 2022 attempts to change some of those delays on presumptive injuries, including cancer. Now an employer must reject a claim within 75 days after a claim is filed and failure to do so results means the injury is presumed compensable. In other words, the change in the time to accept/deny creates a second presumption of injury. The change applies to most of the presumptive injuries enjoyed by first responders including heart trouble, hernias, pneumonia, back trouble (for peace officers only), etc.
The legislation includes a new section of the Labor code that states when liability has unreasonably rejected for these claims, a penalty can be imposed against the employer which can be up to five times the amount of the benefits unreasonably delayed due to the rejection of liability with a maximum penalty of $50,000.00. The caveat to this penalty is that the question of any rejection and the reasonableness of the cause shall be determined by the workers’ compensation appeals board in accordance with the facts…in other words, on a case by case basis. And…this penalty could apply to injuries that occurred prior to the operative date of the new legislation.
The second important aspect of this legislation increases the amount of temporary disability compensation for those injuries involving the cancer presumption. Prior to the new legislation, a peace officer, like all injured workers, was limited to 104 weeks of temporary disability within five years from the date of the injury. That 104 weeks would include one year of full salary under Labor Code section 4850 and then one year of temporary disability paid at the maximum state rate of compensation. Often peace officers suffering from cancer find themselves temporarily disabled longer than two years and outside of the five year limit.
The new bill provides for up to 240 weeks of temporary disability (again one year of 4850 benefits) and is not limited to payment within five years from the injury date. Thus a peace officer suffering from cancer who is able to return to work but then has to go off again on temporary disability would receive compensation more than five years from the injury date. That is a significant change and benefit to peace officers who sustain a presumptive cancer injury.
Hopefully these changes in presumptive cancer claims will lessen the delays that officers frequently see in getting claims accepted and benefits provided. Know your rights and be vigilant in protecting them.
About the author: Robert Sherwin has been a senior partner with Lewis, Marenstein, Wicke, Sherwin and Lee since 1992. He is on the Board of Directors for the California Applicants’ Attorneys Association and serves on its Labor and Safety committees. He is also a member of the Los Angeles County Bar Association and is certified by the State Bar as a specialist in workers’ compensation. He has been instrumental in helping countless PPOA members navigate the complexities of the workers’ compensation system.