Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for writ of review. Order annulled.
Grancell, Lebovitz, Stander, Barnes and Ruebens, Grancell, Lebovitz, Stander, Reubens and Thomas, Kelly A. Sieckman; Sedgwick, Detert, Moran & Arnold, and Douglas J. Collodel for Petitioner.
William T. Hays for Respondent, Donald K. Smith.
OPINION
McKINSTER Acting P. J.
Defendant City of Santa Ana (City) seeks review of an order of the Workers’ Compensation Appeals Board (WCAB or Board) denying reconsideration of the award to Donald K. Smith (applicant). City contends that applicant’s claims of industrial injury to his heart and skin cancer is barred by the statute of limitations pursuant to Labor Code sections 5404 and 5412, and further that there is not substantial medical evidence that applicant’s prostate cancer arose out of and in the course of his employment.
Statutory references are to the Labor Code unless otherwise stated.
We conclude that City’s statute of limitations defense is well taken with respect to the claim related to applicant’s skin cancer and, accordingly, we annul the order.
FACTS
Applicant is a 69-year-old retired firefighter who worked for City from 1968 to December 19, 1989, his last day on the job. He retired in 1991 as a result of a job-related orthopedic disability.
Fourteen years after his retirement, he filed a continuous trauma claim alleging heart injury from January 1, 1969, through December 19, 1989. He later amended the claim to include industrial injury in the form of skin and prostate cancer.
The workers’ compensation judge (WCJ) found that applicant sustained compensable injury to his heart, prostate cancer, and skin cancer. She also rejected City’s statute of limitations defense, concluding that there was no evidence that applicant was aware of his injuries prior to 2003. The WCJ indicated that she had not relied on the presumption of compensability under sections 3212 and 3212.1 because applicant had not filed his claim within 60 months from the last date actually worked.
It is presumed, according to these statutes, that heart problems and cancer developed by a peace officer or firefighter within 60 months of leaving service are job related.
DISCUSSION
City contends that applicant’s claim of industrial injury to his heart and skin cancer is barred pursuant to sections 5404 and 5412. Secondly, it contends that substantial evidence does not support the finding that applicant’s prostate cancer was industrially caused.
A. Statute of Limitations.
Section 5412 provides that the “date of injury in cases of occupational diseases or cumulative injuries is that date upon which the employee first suffered disability there from and either knew, or in the exercise of reasonable diligence should have known, that such disability was caused by his present or prior employment.”
Whether an employee knew or should have known the disability was industrially related is generally a question of fact to be determined by the WCAB. (Nielsen v. Workers' Comp. Appeals Bd. (1985) 164 Cal.App.3d 918, 927.) However, it is the employer’s burden to prove the applicant’s knowledge, and we uphold the Board’s determination if it is supported by substantial evidence, including reasonable inferences to be drawn from the testimony. (Ibid.)
I. Heart Condition.
With respect to its statute of limitations defense as it relates to applicant’s claim of heart injury, City points out that applicant began experiencing chest pains in the early 1990’s and even had a stress echocardiogram by Dr. Goldfarb in 1992. In his January 27, 2004 report, Dr. Goldfarb came to the conclusion that the chest pains applicant experienced since 1994 were angina and cardiac in nature.
Even though applicant has suffered chest pains since the early 1990’s, conventional heart tests conducted at that time did not disclose any heart problem. During this time period, applicant was diagnosed with pulmonary problems, and it was not until 2003 that a diagnostic screening test showed an elevated calcium level in the one coronary artery and Dr. Goldfarb diagnosed coronary heart disease.
Although he acknowledged that Dr. Goldfarb is a renowned cardiologist, the defense Qualified Medical Examiner (QME), Dr. Green, expressed doubt that applicant suffers from a heart condition. He opined that another nuclear stress test should be conducted to determine whether the calcium is on the outside or inside of the artery. Applicant’s expert apparently did not believe further testing was necessary. The WCJ chose to believe Dr. Goldfarb. Since the latter’s opinion cannot be said to be based on speculation or conjecture, the WCJ’s finding is supported by the evidence. Because applicant was not diagnosed with having any heart condition until 2003, his claim filed a few months thereafter is not time barred.
II. Skin Cancer.
Doctors Goodlerner and Alaiti both reported that applicant suffered from industrial skin cancer. Applicant reported a long history of precancerous skin lesions as well as basal and squamous cell cancers dating back to the 1970’s. He spent five to seven hours per day under the sun while working and suffered work-related sunburns on his arms, neck, face, nose and ears. In the early 1970’s he started to develop skin problems in the form of spots and roughness on his hands, nose, and ears. He sought treatment from general practitioners rather than dermatologists. He started to wear sunscreen during this period and later began wearing a ball cap.
Applicant began seeing dermatologists at Kaiser Permanente (Kaiser) in the 1980’s. He would be seen twice a year by a dermatologist who removed spots. He was last seen at Kaiser in 1992 prior to moving to Colorado, and he continued to receive treatment in that state. He had a basal cell skin cancer on his chest in 1997, a squamous cell skin cancer on the temple in 1997, and basal cell cancer on the scalp in 1994.
Both Doctors Goodlerner and Alaiti concluded his skin was sun damaged and that he should be seen twice yearly by a dermatologist with appropriate treatment of the precancers.
The WCJ rejected City’s statute of limitations defense with regard to the skin cancer claim because it had “provided no evidence to rebut the testimony of the applicant that no people or doctor had ever told him the skin cancer was related to his employment with the City of Santa Ana prior to filing his claim.”
Even crediting applicant’s testimony that he was never expressly told that his skin problems were work related, we must still conclude that he knew or reasonably should have known of the connection. In general, an applicant will not be charged with knowledge that his injury is job related without medical advice to that effect. There are some occasions, however, where an applicant will be charged with knowledge of the relationship based on the nature of the condition and his training, intelligence, and qualifications. (City of Fresno v. Workers’ Comp. Appeals Bd. (1985) 163 Cal.App.3d 467.) This is just such an occasion. Applicant has a 30-year history of skin problems due to sun exposure and has been receiving medical treatment and advice during this time. It is obvious he knew the connection between exposure to the sun and his skin problems since he long ago took preventative measures, such as using sunscreen and wearing caps. That a substantial percentage of exposure took place while he was working could not have come as a surprise. This is not some exotic disease the causes of which are obscure even when applicant first began having problems. (See Nielsen v. Workers’ Comp. Appeals Bd., supra, 164 Cal.App.3d at p. 931.)
Accordingly we find that City did establish the statute of limitations defense with regard to applicant’s skin cancer claim.
B. Substantial evidence.
City contends that the Board’s finding that applicant’s prostate cancer is related to his on-the-job exposure to toxic chemicals is based on speculative and conclusory evidence.
Applicant was diagnosed with prostate cancer in the form of adenocarcinoma in 2003. In his report of December 23, 2004, City’s QME, Dr. Green, opined this type of cancer is typically found in men as they age and there is no indication that its occurrence is anyway related to chemical exposure. Dr. Green based his conclusion on his study of Harrison’s Principals of Internal Medicine (15th ed. 2001) as well as the cancer manual, which indicate that the only factor that is proven to be related to cancer of the prostate is the male hormone testosterone. He also cited the United States Health Department Publications from the agency of Toxic Substances and Disease Registration, which also report that there is no evidence linking the occurrence of prostate cancer to exposure to the products of combustion or other chemicals, such as cadmium.
Dr. Goldfarb cited studies that have found a link between cadmium exposure and an increased risk of prostate cancer. The literature indicates that burning agricultural supplies and fertilizers, as well as burning batteries, paint, and plastics, produce a carcinogen in cadmium and that applicant was exposed to such toxic smoke and fumes during the course of his career as a firefighter.
After reviewing Dr. Goldfarb’s report, Dr. Green acknowledged that scientific studies have suggested a link between prostate cancer and exposure to cadmium among individuals who worked directly with this element. However, he noted that the biggest sources of cadmium exposure are from foods and cigarette smoke and that petitioner had been a smoker for 25 years.
The WCJ found Dr. Goldfarb’s medical reports most persuasive and well reasoned on the issue of causation of injury consisting of prostate cancer. She observed that while Dr. Green referred to applicant’s smoking history, he completely disregarded the constant exposure to second hand smoke as well as burning batteries.
We must reject City’s contention that the WCJ erred in relying on the medical opinion of Dr. Goldfarb on this issue rather than that of Dr. Green. Dr. Goldfarb’s opinion cannot be dismissed as based on surmise, speculation or conjecture. Even Dr. Green seemed to recognize that Dr. Goldfarb had provided scientific evidence establishing a link between cadmium exposure and prostate cancer. Factual determinations of the Board must be upheld if there is substantial evidence to support them, and the opinion of one doctor, though inconsistent with other medical opinions, normally constitutes substantial evidence. (Patterson v. Workers’ Comp. Appeals Bd. (1975) 53 Cal.App.3d 916, 921.)
DISPOSITION
The order is annulled and the matter is remanded for further proceedings consistent with this opinion.
We concur: RICHLI J., KING J.