Albano v. Cal amp Corp.(BPD) (45 CWCR 240):
The decedent worked as a solderer for defendant from October 1, 1992 through September 13, 2012.
The decedent developed a cough in January 2012, at which time her primary treating physician prescribed antibiotics. Her condition worsened and in September 2012, shortness of breath caused her to visit the emergency room. The doctors diagnosed her with lung cancer and referred her to a pulmonary specialist.
The records of the pulmonary specialist did not show whether he discussed the diagnosis with the decedent or the dependents.
Treatment records from the thoracic surgeon and oncologists did not address the cause of decedent’s lung cancer.
Decedent filed a worker’s compensation claim on November 27, 2012.
Defendant denied the claim by letter dated December 19, 2012 because there was no medical evidence to support a work -related injury.
Decedent testified at her deposition that she suspected that the cough was work-related because it worsened during work hours, she was a non-smoker, her father and ex-husband had smoked but only outside the house, and she experienced no indoor second-hand smoke exposure from cigarettes. She also denied a family history of cancer and denied knowledge of whether any of her coworkers had developed cancer.
The decedent was not asked about any conversations with their children about the cause of her cancer.
Decedent had three children all over 18 years old and all employed at the time of her deposition.
The decedent testified that all three children live with her at the time of her deposition, but she was not asked about the length of time that her children live with her prior to the deposition.
The decedent died in April 24, 2013.
An internal panel Qualified Medical Evaluator did not physically evaluate the decedent or meet with her dependents issued three reports that concluded that there was no correlation between her employment exposure to soldering flux and her development of cancer.
At the deposition of the QME he opined that to a reasonable medical probability the decedent’s employment exposure caused some percentage of the cancer.
The Qualified Medical Evaluator was not asked whether he discussed causation with the decedent or her dependents.
An application was filed for a dependency death claim on behalf of decedent’s three children on May 6, 2015 under the same case number as the decedents inter vivos claim.
At trial defendant argued that the dependence claim was barred by the Statute of Limitations of Labor Code §5406 and in the alternative that the report of the Qualified Medical Evaluator establish the applicant’s employment did not cause her death.
The dependents argued the claim was not time-barred because the Statute of Limitations was tolled until they require knowledge that the decedent’s death was industrial and that the opinion of the Qualified Medical Evaluator in his deposition that the death was industrial controls.
No testimony was taken and the dependents were never deposed in the course of the case.
The WCJ ruled that Labor Code §5406 Statute of Limitations barred the dependents claim, reasoning that because decedent had died seven months after the last date that she worked as a solderer, Labor Code 5406 (a) (1) established that application more than one year after the date of death was time-barred regardless of the dependents knowledge of the industrial causation.
The WCJ added that a death claim filing date, in contrast to the date of injury pursuant to 5412 for an inter vivos cumulative injury, did not require evidence of causation knowledge, and that the Qualified Medical Evaluators review of decedent’s work history led him only to have suspected it was due to her job at the time.
The dependents timely filed a petition for reconsideration.
The WCAB noted that defendant, as the party asserting the affirmative defense of Statute of Limitations, bore the burden of proof of establishing it by a preponderance of the evidence.
In dependency cases, the panel observed, Labor Code 5406 establishes whether a claim is time-barred.
Pursuant to Labor Code 5406 (a), the dependence must file within one year from (1) the date of death if death occurs within one year the date of injury; (2) the date of last furnishing of any benefits under Chapter 2, if the death occurs more than one year from the date of injury (3) the date of death, if the death occurs more than one year after the date of injury and compensation benefits have been furnished and pursuant to Labor Code 5406 (b) proceeding shall not be than 240 weeks from the date of injury.
The WCAB citing the case of Arndt v. WCAB 41 CCC 151 stated that the Statute of Limitations arising out of a worker’s death from an industrially cause disease, must be commenced within one year from the date of death, or the date that the applicant knew, or in the exercise of reasonable diligence should have known, that the death was of industrial causation.
In the Arndt case the Court of Appeal held that a dependency claim that was filed more than one year after the date of death and more than 240 weeks from the last work exposure to asbestos was not time-barred because the dependent did not have knowledge of the industrial nature of the injury more than one year from the filing of the dependency claim.
Citing the case of Berkebile v. WCAB (48 CCC 438) the panel asserted that the knowledge requirement in a dependency claim is not measured by the decedents knowledge, but rather by the knowledge of those making a claim for benefits. The court in that case concluded, by reference to the separable nature of inter vivos and dependency claims, they did not necessarily depend on the same date of injury, and it held that the date of the applicant’s knowledge of the industrial nature of the decedent’s condition is the pertinent date of injury per purposes of the death claim.
The panel further noted a dearth of evidence in the record on the dependents knowledge of the cause of the decedent’s death.
It was incumbent upon defendant to produce evidence related to the date the applicant knew, or in the exercise of regional diligence should have known that decedent’s cancer and death were work-related.
The WCAB in interpreting Labor Code §5412 and citing the case of City of Fresno v. WCAB (Johnson) (50 CCC 53), for the proposition without specialized training, intelligence, or qualifications, a party is not charged with knowledge of the industrial nature of a condition until such knowledge is received from medical advice or opinion.
The WCAB stated that defendant denied the case in 2012 based on a what it termed a lack of medical evidence of industrial causation and that the medical report on February 2015 opined that the cancer was not industrially related.
The records first medical opinion of industrial causation for the cancer and death was the Qualified Medical Evaluator’s deposition on May 5, 2012.
The panel’s review of the record could not identify earlier evidence of what the WCJ termed the Qualified Medical Evaluator suspicions that decedents employment caused her lung cancer.
However, while it did not appear to the panel that defendant had sustained its burden of proof on the affirmative defense of Statute of Limitations, he could not interpose its own findings regarding the defendant’s burden or the application of the cases of Arndt and Berkebile to this case without running afoul of the parties’ rights to due process.
On remand, the WCJ should determine whether the employment was a contributing cause to lung cancer and the death, and the panel urged the parties to choose an agreed medical evaluator to address that causation.
The WCAB rescinded the take nothing award and remanded the case for a determination on whether defendant had its burden of proof on the affirmative defense of Statute of Limitations, as well as urging the parties to choose an AME or if no agreement can be reached the trial judge should appoint a regular physician with the requisite expertise per Labor Code 5701.