Louisiana Appeals Court Rules Parish Failed to Rebut Cancer Presumption

The Louisiana Court of Appeals has reversed a worker’s compensation decision that denied a firefighter benefits for cancer. James Schexnayder, a firefighter in Jefferson Parish, was diagnosed with NK/T lymphoma on May 28, 2020.

Schexnayder sought workers comp benefits for his condition under La. R.S. 33:2011, the cancer presumption act. The act creates a rebuttable presumption that a firefighter’s cancer is an “occupational disease or infirmity connected with the duties of a firefighter.” The Parish claimed that his lymphoma was caused by the Epstein-Barr virus, and introduced substantial evidence to support its contention.

The worker’s comp judge heard evidence of the connection between the virus and the cancer, which the Court of Appeals summarized as follows:

  • Dr. Mayes testified claimant [Schexnayder] has a fairly rare form of lymphoma that is “most highly associated with Epstein-Barr” virus.
  • While she cannot say that it is “impossible” that claimant’s employment was a causative factor in his diagnosis, she found it “unlikely.”
  • She further testified that the rare type of lymphoma that claimant has been diagnosed with “is not affiliated with exposure” to chemicals.
  • She testified that she agreed with Dr. Nair’s assessment that “this is a lymphoma related to EBV virus and can be triggered by immunosuppression.”
  • The Parish also introduced the deposition of Dr. Brian Bienvenu, an oncologist at Louisiana Hematology Oncology Associates.
  • He testified that he specializes in cancers of the head and neck.
  • He testified that he treated claimant for a neck mass that was biopsied and revealed “an NKT lymphoma, which is a quite rare lymphoma.”
  • He further testified that “NKT lymphomas are typically related to Epstein-Barr virus. And the only information I know of in the literature is that there is some slight increased risk for exposure to farming chemicals in Asia. As to what causes it in the United States, where it’s uncommon, there isn’t any clear information, other than some interplay with EBV exposure.”
  • He further agreed with Dr. Nair’s assessment that this rare lymphoma is Epstein-Barr Virus related.
  • On cross-examination, he clarified that he cannot say with 100% certainty that claimant’s lymphoma is not related to his employment.
  • He explained that “in the world of medicine…it’s hard to say that anything is a hundred percent impossible.”
  • Rather, he testified that it is “more probable than not [the lymphoma] is not related” to claimant’s employment exposure.
  • Plaintiff introduced the deposition testimony of Dr. Marc Matrana, an oncologist with Hospital who evaluated claimant as a second medical opinion (SMO) physician retained by the Parish.
  • Dr. Matrana testified that there is substantial medical literature indicating an increased risk of non-Hodgkin’s lymphoma in firefighters in general.
  • He concluded after his research that plaintiff’s occupation may have increased his risk for lymphoma.

Based upon the testimony, the worker’s comp judge concluded that the Parish was able to rebut the cancer presumption, and denied Schexnayder worker’s comp benefits. Schexnayder then appealed to the Louisiana Fifth Circuit Court of Appeals.

In reversing the worker’s comp judge, the Court of Appeals held as follows:

  • At issue in this appeal is the interpretation and application of the statutory presumption under La. R.S. 33:2011, the Cancer Act, which provides that when a firefighter in classified service and employed more than ten years has developed cancer, the cancer shall be classified as an occupational disease for which he or she is entitled to certain worker’s compensation benefits.
  • The presumption is rebuttable by evidence meeting judicial standards.
  • The Act embodies the social policy of the state which recognizes that firemen are subjected during their career to the hazards of smoke, heat, and nauseous fumes from all kinds of toxic chemicals.
  • The legislature recognized that this exposure could cause a fireman to become the victim of cancer and the presumption relieves the claimant from the necessity of proving an occupational causation of the disease.
  • There is little jurisprudence discussing the burden of proof in a worker’s compensation proceeding seeking benefits under the Cancer Act.
  • However, La. R.S. 33:2581, the Heart and Lung Act, involves a similar presumption in favor of firemen who develop a disease or infirmity of the heart or lungs after having been employed as a fireman for more than five years.
  • We look to jurisprudence discussing the burden of proof as to Heart and Lung Act cases for guidance in determining the burden of proof under Cancer Act cases.
  • This Court, in considering a Heart and Lung Act case, has held that, “[o]nce a claimant establishes that a covered disease or infirmity is at issue, and the presumption applies, the burden shifts to the employer to prove that the disease or infirmity was not caused by the firefighter’s employment.
  • Further, the First, Second, Third, and Fourth Circuits have held that to meet a defendant-employer’s burden to rebut the presumption and prove that the disease was not caused by the firefighter’s employment, the medical evidence presented cannot demonstrate that the employment was a “contributing, accelerating, or aggravating factor” in the causation of the disease.
  • Further, medical opinions tempered by acknowledgments, agreements, or concessions that the work may have been a cause, even though remote, or possibly a contributing factor of the disease, or which is otherwise equivocal, is not affirmative evidence sufficient to overcome the Act’s presumption.
  • In this case, it is undisputed that claimant has been employed in the classified service as a firefighter for the Jefferson Parish Fire Department for more than 31 years and is still employed as a professional firefighter with the Parish and actively fighting fires today.
  • Therefore, he is clearly entitled to the presumption set forth in the Cancer Act.
  • Upon review of all evidence presented at trial, we find that the Parish did not rebut the presumption sufficiently to dismiss claimant’s petition.
  • Although the Parish put forth evidence to demonstrate that the type of lymphoma claimant has been diagnosed with is generally caused by the EBV virus, the claimant presented evidence that such a diagnosis is multifactorial and that the etiology is complicated.
  • The evidence claimant introduced clearly demonstrated that claimant’s employment could not be ruled out as a contributing factor to his disease.
  • Although Dr. Bienvenu and Dr. Mayes responded … that the diagnosis is more probable than not associated with the EBV virus and not claimant’s employment, they further responded that the “Cause” of the lymphoma is “unknown.”
  • Dr. Matrana’s response considered the fact that the lymphoma is a rare nasal lymphoma typically associated with the EBV virus, but still maintained that while the EBV virus is clearly a causative factor, claimant’s exposure to various carcinogens over a thirty-year time span through his employment cannot be ruled out as a causative factor for the disease.
  • We find the evidence presented at trial could not rule out that claimant’s more than 30-year employment actively fighting fires could not have contributed to his diagnoses of lymphoma in this case.
  • Consequently, we find the OWJ was clearly erroneous in dismissing claimant’s [claim].

Here is a copy of the decision:

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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