Safety and OSHA News

Pre-cancerous skin lesions caused by outdoor work? Comp hangs in the balance

A deputy sheriff who spends 70% of his employment time outdoors developed a pre-cancerous skin condition. His employer denied his workers’ comp claim. How did a court rule? 

Sacramento County, CA, deputy sheriff Jonathon McCartney developed actinic keratosis, aka solar keratosis, a growth caused by damage from exposure to ultraviolet radiation, such as the sun. AK is considered precancerous because if left alone, it could develop into skin cancer, most often squamous cell carcinoma.

During most of his 21 years working for the County, McCartney was on motorcycle patrol with his arms and face exposed, although he used sunscreen.

McCartney had also been a surfer while growing up in southern California. As an adult, he was active in outdoor sports, including golf.

When he applied for workers’ comp coverage for his AK, the County denied the claim.

A dermatologist who was also a qualified medical examiner (QME) said after an extensive review of medical literature, she couldn’t find any documented support for a 51% certainty linking workplace sun exposure to AK. Medical literature hasn’t identified what amount of sunlight triggers the condition.

Therefore, the dermatologist said attributing the skin condition to workplace sun exposure would be pure speculation.

Sun is just one of the factors leading to AK, including age, genetics and immune system response. McCartney had light skin and said he burned easily. He was also in his late forties, so his age could be a contributing factor.

Court documents state McCartney’s attorney struggled with the dermatologist’s opinion. His attorney said:

“I can’t quite wrap my head around the fact that – you’ve said that sun exposure is cumulative and is a factor in the development [of AK]; so if Mr. McCartney had approximately 20 years of sun exposure as a police officer, why does that not have some contribution to the cumulative effect of damage to the skin?”

The doctor restated that she could not say that McCartney’s 20 years on the job caused his condition. “His blistering sunburns he achieved in childhood may have done more DNA damage at that time that may have eventuated in his actinic keratosis,” the dermatologist testified. “We just can’t – we just don’t know.”

A hearing officer concluded  it wasn’t proven work-related sun exposure had been a contributing factor in McCartney’s development of AK.

The California Workers’ Compensation Appeals Board seemed to take the point of view of McCartney’s attorney, concluding that since on-job sunshine could have contributed to the injury, he should receive comp benefits.

The County appealed to a California court.

Did drug overdose case apply here?

McCartney’s attorney cited a California Supreme Court case (South Coast Framing Inc. v. Jovelyn Clark) to argue his point. We wrote about this case in 2015.

The family of a worker who died from an accidental prescription drug overdose filed for workers’ comp death benefits, arguing that the drugs prescribed for a work injury were a contributing factor in his death.

The California Supreme Court ruled that in workers’ comp cases, an injury only needs to be a contributing factor in a worker’s death for benefits to be awarded. In this case, the drugs prescribed for his previous work injury were part of the reason for his accidental overdose as were other prescription drugs. That was enough for his family to be awarded the death benefits.

In other words, the work-related incident or exposure only needs to be part of the reason for an injury or illness to qualify for workers’ comp benefits.

But the California appeals court hearing McCartney’s case said it was different. “The QME never acknowledged that there was a causative role of unknown degree arising out of McCartney’s employment,” the court wrote. “Rather, she took great pains to explain (repeatedly) that it was not possible to attribute the cause of McCartney’s condition to any particular period of exposure to the sun.”

The court noted it was possible McCartney reached a toxic dose of sunshine before working as a deputy sheriff.

The appeals court found the hearing officer properly concluded that McCartney failed to show his work-related sun exposure contributed to his condition “by a reasonable probability.” McCartney won’t receive workers’ comp benefits for his pre-cancerous skin condition.

(County of Sacramento v. Jonathon Scott McCartney, Court of Appeal of CA Third Appellate Dist., No. C082282, 7/11/17)

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