In Montierth v. City of San Diego, ADJ913774 (SDO), 04/21/2023, the Board panel affirmed the trial court’s decision that a law enforcement officer’s industrial melanoma diagnosis was an insidious, progressive disease, thereby reserving continuing jurisdiction over potential additional permanent disability beyond five years from the date of injury.

Labor Code § 5410 provides that, “Nothing in this chapter shall bar the right of any injured worker to institute proceedings for the collection of compensation within five years after the date of the injury upon the ground that the original injury has caused new and further disability.” § 5804 goes on to state that, “No award of compensation shall be rescinded, altered, or amended after five years from the date of the injury except upon a petition. . ..” In most situations, the appeals board is not permitted to reserve jurisdiction to award further disability beyond five years from the date of injury. However, there are exceptions. The California Supreme Court carved out an exception to this rule in cases involving insidious, progressive diseases.

“In determining permanent disability, it must first be decided when the injured worker’s condition became permanent and stationary. Although ‘permanent and stationary’ are words of art, they are not removed from their literal meaning to be without guidelines. The Board Rules, section 10900, considers a disability permanent, ‘after the employee has reached maximum improvement, or his condition has been stationary for a reasonable period of time, as may be determined by the Appeals Board or a referee.’” (Piedmonte v. Western Asbestos & SCIF (1981), 46 CCC 475.)

A condition is considered permanent and stationary after the employee has reached maximum improvement or his condition has been stationary for a reasonable period of time. (Cal. Admin. Code, Tit. 8, § 9735.) However, this definition did not easily apply to cases of progressive diseases. “The reference to ‘maximum improvement’ obviously refers to the more classical concept of ‘injury’ which envisions a traumatic incident resulting in corporal injury with a period of healing to a point of greatest improvement. The term did not envision an insidious, progressive disease process that results from a remote, undramatic work exposure and is of little or no use in determining the status of such a condition . . . . The Board rule for permanent disability, therefore, is not very helpful . . . except to suggest that the condition is not permanent and stationary because of its progressive nature.” (Piedmonte.)

In General Foundry Service v. WCAB (1986), 42 Ca. 3d 331, the Supreme Court addressed the issue of jurisdiction over permanent disability for an injured worker suffering from asbestosis, a progressive, insidious disease. Since asbestos exposure may cause cancer in a worker after a latency period of 20 to 40 years, the appeals Board found the five-year statutory limitation on jurisdiction over permanent disability may result in a premature PD rating. “If a permanent disability rating takes place too early, an employee with a progressive lung disease such as asbestosis faces the risk of being precluded by the statute of limitations from seeking full compensation for his industrial injury.” (General Foundry Service.) The Board in General Foundry ultimately reserved jurisdiction over permanent disability for insidious progressive diseases, concluding it “may tentatively rate the permanent disability of an employee with a progressive disease, and order advances based on that tentative rating. It may then reserve its jurisdiction for a final determination of permanent disability when the employee’s condition is permanent and stationary, or when the employee’s permanent disability is total (100 percent) and further deterioration would be irrelevant for rating purposes.”

The appeals Board previously disagreed with jurisdiction being reserved for permanent disability in a case involving occupational skin cancer, where the Qualified Medical Evaluator commented on the likelihood of recurrence of applicant’s basal cell carcinoma, finding that the probability that the previous skin cancer could recur after Mohs surgery was low (approximately 3%); however, the injured worker was likely to develop new skin cancers. (Adair v. City of San Diego (2016), Cal. Wrk. Comp. P.D. LEXIS 8.) Regarding whether skin cancer was a progressive, insidious disease, the appeals Board noted “that applicant failed to show that his skin cancer is slowly and gradually worsening. Applicant’s cancer was excised and applicant is presently permanent and stationary. The fact that applicant’s skin cancer has a 3% chance of recurrence does not mean that the cancer is slowly and gradually worsening. Without any evidence in the record that establishes that applicant’s cancer is slowly and gradually worsening, the Appeals Board cannot reserve jurisdiction over applicant’s permanent disability.” (Adair.)

What about cases of industrial melanoma – the deadliest form of skin cancer with a higher rate of metastasizing if not detected early? Are those cases considered to be progressive and insidious? This brings us back to the Montierth case. On Reconsideration, the panel rejected the defense argument that melanoma was not a progressive and insidious disease. Defendants argued that the QME did not classify the condition as progressive and insidious, thereby precluding the reservation of jurisdiction over permanent disability. The panel disagreed with this contention. The panel cited the QME’s opinion that applicant’s risk of developing a subsequent primary melanoma was more than eight times higher than the risk to the general public of developing a melanoma, and if applicant does develop a subsequent primary melanoma, it is reasonably probable that additional permanent disability will result. The panel concluded that it is not necessary “for the medical evidence to show with 100% certainty that applicant’s cancer will worsen in order to support a reservation of jurisdiction over permanent disability; instead, the potential for such worsening as described by [the QME] is sufficient.” (Montierth, brackets added.) Noting that the primary melanoma may recur, require lifetime monitoring, and potentially cause increased disability, the panel upheld the WCJ’s finding that applicant’s cancer is an insidious progressive disease.

The panel decision relied on applicant’s specific risk factors as estimated and identified by the QME. Whether the decision in Montierth will be persuasive in other cases involving melanoma will likely depend on the medical-legal opinions about probability of recurrence and likelihood of additional permanent disability if a recurrence does occur. Defending against reserved jurisdiction over permanent disability may require cross-examining the medical-legal evaluator, including disputing the statistics and studies used to estimate the likelihood of recurrence. Understanding cases involving melanoma skin cancer can be complex, so please do not hesitate to contact our firm if you have any questions.