The opinion
Filed 3/29/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
MARINWOOD COMMUNITY
SERVICES,
Petitioner,
v. A147582
WORKERS’ COMPENSATION
APPEALS BOARD, RAMOS et al., (WCAB No. ADJ8778127)
Respondents.
Petitioner Marinwood Fire Protection District, also known as Marinwood
Community Services, Inc. (Marinwood), seeks to set aside the decision of the Workers’
Compensation Appeals Board (WCAB) holding that firefighter Pete Romo was entitled
to the benefit of the rebuttable presumption under Labor Code section 3212.1 1 that his
cancer arose out of his employment. The writ raises two legal issues of interpretation of
workers’ compensation statutes. While our review of such issues is de novo, in light of
the WCAB’s expertise we “give weight to its interpretations of workers’ compensation
statutes unless they are clearly erroneous or unauthorized.” (Brodie v. Workers’ Comp.
Appeals Bd. (2007) 40 Cal.4th 1313, 1331.) While neither of the statutes at issue is a
model of clarity, the WCAB’s interpretations of both are reasonable and we therefore
affirm the WCAB decision.
1
Except as otherwise specified, all further statutory references are to the Labor
Code.
1
BACKGROUND
Romo worked as a firefighter for three different fire departments. He was a
volunteer firefighter for Marinwood from 1989 to 1991 and the San Antonio Volunteer
Fire District in Sonoma County (San Antonio) from 2002 to 2006. From 2006 through
trial, he was employed full time as a paid firefighter for the City of Mill Valley (Mill
Valley). While working for Mill Valley, Romo was diagnosed with prostate cancer.2
Marinwood was established in the 1950s as an all-volunteer fire department. By
the 1980s, it had a paid fire chief and two paid professional firefighters for each shift. At
the time Romo was a volunteer firefighter there, Marinwood had a total of seven paid
firefighters and 24 volunteer firefighters.
When Romo was serving as a volunteer firefighter for Marinwood, he fought
multiple fires, participated in mandatory weekly drill nights and was required to live
within a certain distance from the firehouse, keep certain department-provided gear in his
car or bedroom, and keep a paging device with him so he could be paged when needed
for a fire. Marinwood provided him with a thick coat, pants, a hood, a helmet, goggles,
boots and gloves.
Romo and other volunteers also worked at the fire station, cleaning equipment,
refueling tools, sweeping and mopping. Volunteers were considered “on duty all the
time” and were required to respond to 75 percent of the calls. Marinwood paid for him
and other volunteers to obtain training and certification in CPR and basic life support.
Marinwood also trained him on fire suppression for different kinds of fires and on other
subjects, such as bleeding control, rope rescue and vehicle extrication.
Volunteer positions with Marinwood were sought after by those who wanted to
become firefighters, and the hiring process was competitive. If a volunteer failed to meet
the demands of the position, he would be counseled and, if that failed, terminated.
Volunteers did most of the firefighting work while Romo was there, taking direction from
the on-duty company officer.
2
Mill Valley filed an answer to Marinwood’s writ petition essentially joining in
Romo’s arguments.
2
Marinwood’s fire captain and training officer considers the volunteer firefighters
to be employees. When they go on a call, members of the public do not know whether
they are volunteers or paid. Marinwood currently provides workers’ compensation
benefits for volunteers.3
Romo filed a claim for workers’ compensation benefits with each of the three fire
departments for which he had worked. Mill Valley and San Antonio stipulated that the
statutory presumption that cancer suffered while employed as a firefighter arises out of
the employment would apply to them if the elements set forth in section 3212.1 were
proven. Marinwood contested the application of the presumption. Two issues pertaining
to Marinwood were tried before a workers’ compensation judge (WCJ) in
September 2015: (1) whether Romo was an employee and/or volunteer firefighter of
Marinwood entitled to workers’ compensation benefits under sections 3352, subdivision
(i), 3361, 3365, 3361.5, 3212.1 and Health and Safety Code section 13802; (2) whether
the presumption under section 3212.1 applies against Marinwood where Romo was not a
public safety employee from the time he stopped volunteering at Marinwood sometime
between 1989 and 1991 and the year 2002, which is more than 120 months following the
date he last worked for Marinwood.
After receiving trial briefs, hearing testimony from Romo and Marinwood fire
captain John Bagala and admitting various exhibits, the WCJ issued findings of fact and
an order. She concluded that Romo was “an active volunteer firefighting member of
[Marinwood] from mid-1989 to early 1991 within the meaning of Labor Code
sections 3212.1 and 3361” and that he “is entitled to the extension of the presumption
under Labor Code section 3212.1, since he is within 120 months of the ‘last date actually
worked in the specified capacity.’ ”
3
At trial, Captain Bagala testified that he believed Marinwood had carried
workers’ compensation insurance for its volunteers since he had started working there in
1988. After trial, however, Marinwood proffered a resolution by the Marinwood Board
of Directors indicating that “effective 2007, [a volunteer] was to be deemed an employee
of the district for purposes of entitlement to workers’ compensation benefits.”
3
Seeking reconsideration of the WCJ’s decision by the WCAB, Marinwood argued
it was not a “regularly organized volunteer fire department” within the meaning of
section 3361, and thus that firefighters who volunteered for it were not “employees” for
workers’ compensation statutes under that statute and that the extension of the
presumption under section 3212.1 began to run as to Marinwood on the date Romo last
worked for Marinwood. The WCJ recommended against reconsideration, on the ground,
among others, that Marinwood had waived the first argument by failing to assert it until
after trial. She also opined that the evidence supported a finding that Marinwood was a
“regularly organized volunteer fire department,” because the fire chief had testified it was
a combination department and it had far more volunteers than paid staff. She again
interpreted section 3212.1 to extend the presumption from the last day worked by a
firefighter in the capacity as such, not the last day worked for a particular employer.
In January 2015, the WCAB denied Marinwood’s motion for reconsideration,
“[b]ased on our review of the record, and for the reasons stated in the WCJ’s report,
which we adopt and incorporate.”
DISCUSSION
I.
The WCAB’s Determination That Romo Was an Employee of Marinwood Was Based
on a Reasonable Interpretation of the Relevant Statutes.
Section 3352 excludes certain categories of persons from the term “[e]mployee” as
used in the workers’ compensation statutes. Subdivision (i) of that section generally
excludes volunteers: “A person performing voluntary service for a public agency or a
private, nonprofit organization who does not receive remuneration for the services, other
than meals, transportation, lodging, or reimbursement for incidental expenses.”
Section 3361 is an exception to this exclusion. It provides: “Each member registered as
an active firefighting member of any regularly organized volunteer fire department,
having official recognition, and full or partial support of the government of the county,
city, town, or district in which the volunteer fire department is located, is an employee of
that county, city, town, or district for the purposes of this division, and is entitled to
4
receive compensation from the county, city, town or district in accordance with the
provisions thereof.” (See County of Kern v. Workers’ Comp. Appeals Bd. (2011)
200 Cal.App.4th 509, 518 (County of Kern).)
Marinwood contends it is not (and was not when Romo was a volunteer firefighter
there) a “regularly organized volunteer fire department” within the meaning of
section 3361, and Romo therefore cannot claim the status of “employee” under that
section.4 If Romo does not fall within section 3361, he is excluded from the status of
“employee” by section 3352, subdivision (i).
Marinwood asserts that “[a] volunteer fire department is one comprised solely of
volunteer firefighters. This is distinguishable from a professional, or a combination fire
department, which consists of both volunteers and paid career firefighters. Volunteer fire
departments, though more common in the past, are now rare entities.” Marinwood cites
County of Kern for the proposition that “the requirements for a nonprofit organization to
be classified as a volunteer fire department are stringent.”
County of Kern does not address whether the phrase “regularly organized
volunteer fire department” in section 3361 means only fire departments comprised
entirely of volunteers or encompasses a department like Marinwood that is comprised of
some professional firefighters and some volunteers. (See County of Kern, supra,
200 Cal.App.4th at p. 518 [“Kern agrees SCVFD is a ‘regularly organized volunteer fire
department’ ”].) Nor does County of Kern support Marinwood’s contention that the
“requirements” for classification as a volunteer fire department are “stringent.” The
language Marinwood quotes from County of Kern at page 514 is simply a recitation of
4
Relatedly, Marinwood contends it was Romo’s burden to establish the factual
predicates of section 3361, and that he failed to do so. However, since we conclude that
section 3361 applied based on the evidence Romo submitted at the trial, it goes without
saying that Romo carried his burden and we need not separately address that point.
Likewise, Marinwood challenges the WCAB’s determination, on petition for rehearing,
that it waived the argument that it was not a volunteer fire department, but we need not
address the issue of waiver because, notwithstanding its holding that Marinwood waived
the issue, the WCAB reached the merits and we conclude its decision on the merits is
correct.
5
the facts pertaining to the volunteer fire department that was the subject of that case, not a
statement of requirements that must be met for a department to be considered a volunteer
department under section 3361.
In discussing the question that was before it in County of Kern, which was whether
the Sand Canyon Volunteer Fire Department had “ ‘official recognition, and full or
partial support of the government of the county’ ” within the meaning of section 3361,
the Fifth District declined to adopt the “extremely narrow definitions to the terms within
the statute” Kern County urged it to adopt. (County of Kern, supra, 200 Cal.App.4th at
p. 518; id. at pp. 518–525.) The court analogized its interpretation of these terms in
section 3361 to that given in Machado v. Hulsman (1981) 119 Cal.App.3d 453 to another
phrase in that section, stating: “Indeed, the Court of Appeal in [Machado] similarly
applied a broad interpretation of section 3361’s terms towards extending workers’
compensation coverage by concluding that a volunteer firefighter fell within the workers’
compensation laws and was precluded from filing a separate personal injury action.
Without a more precise definition of the term ‘registered firefighter’ in the statute, the
court concluded the volunteer fire department’s ‘Record of Fires’ log listing the volunteer
as having responded to and participated in six emergency calls sufficiently met the
registration requirement. [Citation.] As the court explained, ‘[s]ince no particular form
of registration is mandated by section 3361, a liberal interpretation of its terms
encompasses the district’s “Record of Fires.” ’ ” (County of Kern, at p. 520.) Far from
supporting Marinwood’s argument that the courts should interpret section 3361 as
imposing “stringent” requirements in determining what constitutes a “volunteer fire
department” under section 3361, County of Kern and Machado support a “broad
interpretation” of that section after “look[ing] to ‘ “ ‘the usual, ordinary import of the
language employed . . . .’ ” ’ ” (County of Kern, at p. 519.)
“In attempting to ascertain the meaning of a word in a statute, we refer to
common dictionary definitions.” (County of Kern, supra, 200 Cal.App.4th at p. 519,
citing Wasatch Property Management v. Degrate (2005) 35 Cal.4th 1111, 1121–1122.)
Merriam-Webster defines “volunteer,” used as an adjective, to mean “being, consisting
6
of, or engaged in by volunteers.” (<https://www.merriam-
webster.com/dictionary/volunteer> [as of Mar. 29, 2017].) Dictionary.com defines it to
mean “of, relating to, or being a volunteer or volunteers: a volunteer fireman.”
(<http://www.dictionary.com/browse/volunteer> [as of Mar. 29, 2017].) These
definitions are broad enough to encompass an entity composed entirely of volunteers and
one comprised of both volunteers and non-volunteers. A clearer way to describe a force
comprised entirely of volunteers is “all-volunteer.” The Legislature could have, but did
not, use that narrower terminology in section 3361.
The WCJ interpreted the “volunteer fire department” language in section 3361 to
encompass a department composed of some professional firefighters and even more
volunteers. In holding the evidence supported a finding that “Marinwood was and is a
volunteer fire department,” she stated: “At trial, John Bagala, Marinwood’s Fire Captain
and Training Officer, testified that Marinwood is a combination fire department, which
according to Captain Bagala, means that it has paid firefighters as well as volunteer
firefighters. The volunteer firefighters, which at the time [Romo] worked there numbered
24 as compared to the 7 paid firefighters, are highly trained, considered ‘on call’ 24 hours
a day and take direction only from paid firefighters.” As already stated, the WCAB
adopted and incorporated the WCJ’s opinion as its own.
The language “volunteer fire department” in section 3361 is ambiguous in regard
to whether it extends to a department comprised predominantly, but not exclusively, of
volunteers. The WCAB’s interpretation of section 3361 is reasonable, and we give it
weight. Its interpretation is consistent with the purpose of the statutory scheme. By
adopting it, we follow the directive of section 3202 that the workers’ compensation
statutes “shall be liberally construed by the courts with the purpose of extending their
benefits for the protection of persons injured in the course of their employment.” (See
State Farm Fire & Casualty Co. v. Workers’ Comp. Appeals Bd. (1997) 16 Cal.4th 1187,
1196 [section 3202 “ ‘provides a means for resolution of ambiguities in the statutes which
affect coverage’ ”].)
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II.
The WCAB’s Determination That the Extension of the Cancer Presumption Ran from
the Date Romo Last Worked as a Firefighter for Any Agency Was Based on a
Reasonable Interpretation of the Relevant Statute.
Marinwood next contends the WCAB misconstrued section 3212.1. That section
provides a presumption that cancer that develops or manifests during a firefighter’s
employment was industrially caused. It provides, in relevant part: “(a) This section
applies to all of the following: [¶] (1) Active firefighting members, whether volunteers,
partly paid, or fully paid, of all of the following fire departments: [¶] (A) A fire
department of a city, county, city and county, district, or other public or municipal
corporation or political subdivision. [¶] . . . [¶] (b) The term ‘injury,’ as used in this
division, includes cancer, including leukemia, that develops or manifests itself during a
period in which any member described in subdivision (a) is in the service of the
department or unit, if the member demonstrates that he or she was exposed, while in the
service of the department or unit, to a known carcinogen as defined by the International
Agency for Research on Cancer, or as defined by the director. [¶] (c) The compensation
that is awarded for cancer shall include full hospital, surgical, medical treatment,
disability indemnity, and death benefits, as provided by this division. [¶] (d) The cancer
so developing or manifesting itself in these cases shall be presumed to arise out of and in
the course of the employment. This presumption is disputable and may be controverted
by evidence that the primary site of the cancer has been established and that the
carcinogen to which the member has demonstrated exposure is not reasonably linked to
the disabling cancer. Unless so controverted, the appeals board is bound to find in
accordance with the presumption. This presumption shall be extended to a member
following termination of service for a period of three calendar months for each full year
of the requisite service, but not to exceed 120 months in any circumstance, commencing
with the last date actually worked in the specified capacity.” (§ 3212.1, italics added.)
Marinwood argues the above-quoted sentence is to be applied separately to each
employer for whom a firefighter worked. Under its interpretation, the extension began to
8
run for Romo, as regards Marinwood, when he last worked as a firefighter for
Marinwood in 1991, and expired no later than six calendar months thereafter, three for
each of the two years he worked for Marinwood. Marinwood contends this is the plain
meaning of section 3212.1, focusing on the language of subdivision (b) defining injury to
include cancer that develops or manifests while the firefighter “ ‘is in the service of the
department or unit, if the member demonstrates that he or she was exposed while in the
service of the department or unit, to a known carcinogen . . . .’ ” According to
Marinwood, subdivision (b) “makes clear that the presumption of injury focuses on one
specific and particular employer or entity by using the singular article ‘the.’ ” This
“ ‘operates to protect the agencies against whom the presumption would apply by placing
reasonable, common sense, and practical limitations to the scope of such an extraordinary
presumption as is granted under section 3212.1.’ ”
Romo argues the language in section 3212.1, subdivision (d), which creates the
extension of time for asserting the presumption, “makes no reference to any particular
employer or entity.” Subdivision (d) refers to “the last date actually worked in the
specified capacity,” not the last date worked for a particular employer.
The WCJ and WCAB rejected Marinwood’s interpretation and embraced Romo’s.
The WCJ stated: “There is no dispute that applicant was diagnosed with prostate cancer
more than 120 months following his last employment with Marinwood in 1991. . . . [I]f
the ‘last date actually worked in the specified capacity’ applies only to [Romo’s] last date
of employment at Marinwood, then the presumption under Labor Code section 3212.1
would not apply against Marinwood. If the ‘last date actually worked in the specified
capacity’ applies to [Romo’s] last date of work as a firefighter for any employer, then the
presumption would apply to Marinwood (assuming all the other elements are met) since
applicant continues to work at the present as a firefighter.”
The WCJ and WCAB interpreted the language in subdivision (d) “last date
actually worked in the specified capacity” to mean the last day worked in the capacity of
a firefighter for any employer. That is, they held the extension of the presumption
commences to run only after the firefighter ceases working as a firefighter altogether.
9
They acknowledged there was no “judicial authority defining the meaning of the ‘last
date actually worked in the specified capacity’ ” and relied on the WCAB panel decision
in Lund v. Dept. of Forestry (Cal. W.C.A.B. Feb. 18, 2011, No. ADJ1649220)
2011 Cal.Wrk.Comp.P.D. LEXIS 126.
In Lund v. Dept. of Forestry, the firefighter had worked at two local fire
departments and one state firefighting agency at different times, in 1978, from 1987 to
1998, and from 1998 to 2004, and the WCJ and the panel (Lund v. Dept. of Forestry,
supra, 2011 Cal.Wrk.Comp.P.D. LEXIS 126 at p. *1 [WCAB adopts panel decision])
faced the same issue raised here: “whether specified capacity is limited to the period the
member actually worked for a specific entity.” (Id. at p. *8.) They answered that
question in the negative, reasoning: “Section 3212.1[, subd.] (d) does not specify the
presumption applies to the period following termination of employment. Rather, the
presumption applies to firefighters following the termination of service of the last actual
date of work in the specified capacity. In other words, the time runs from the last actual
date of work as a firefighter or peace officer. Capacity is defined as a position, function
or relation in the 1984 Random House College Dictionary Revised Edition. When using
the term ‘specified capacity,’ 3212.1[, subdivision] (d) refers to the position set forth in
section (a). Any other application would treat [a] firefighter or peace officer employed
by different entities different [from] one who is employed by one entity in determining
the number of months the presumption would apply after an individual last worked in that
occupation. This was the situation in City of San Leandro v. WCAB (Waltman) 71 Calif.
Comp. Cas. 262 (Writ Denied 2005). There the peace officer’s entire period of
employment with the City of Oakland and the City of San Leandro was used to determine
the number of months the presumption applied after he left the employ of the [City of]
San Leandro.” (Id. at pp. *8–*9.)
Our own research revealed a third WCAB panel decision deciding the same issue
in the same way: Suarez v. Dept. of Forestry & Fire Protection Coastal (Cal. W.C.A.B.
Jan. 15, 2015, No. ADJ8691488) 2015 WL 362732. In Suarez, the WCAB construed
section 3212.1, subdivision (d) “as extending the presumption to the period following the
10
last actual date of work in the capacity of a firefighter, not the last date of employment
with a specific employer.” (Suarez, at p. *4.)
The WCAB’s interpretation of section 3212.1 in this and other cases furthers the
purpose of the cancer presumption. As the Second District recognized in another case
involving that presumption: “[I]n the case of certain public employees who provide ‘vital
and hazardous services’ to the public [citation], the Labor Code contains a series of
presumptions of industrial causation. These presumptions provide that when specified
public employees develop or manifest particular injuries or illnesses, during their
employment or within specified periods thereafter, the injury or illness is presumed to
arise out of and in the course of their employment. (See §§ 3212 [hernia, heart trouble,
pneumonia], 3212.2, 3212.3, 3212.4, 3212.5, 3212.6 [tuberculosis], 3212.7, 3212.8
[blood-borne infectious diseases], 3212.85 [exposure to biochemical substances that may
be used as weapons of mass destruction], 3212.9 [meningitis], 3212.10, 3212.11 [skin
cancer], 3212.12 [Lyme disease], 3213, 3213.2 [lower back impairments].) These
presumptions are a reflection of public policy. [Citation.] Their purpose is to provide
additional compensation benefits to employees who provide vital and hazardous services
by easing their burden of proof of industrial causation.” (City of Long Beach v. Workers’
Comp. Appeals Bd. (2005) 126 Cal.App.4th 298, 310–311.)
Construing section 3212.1 to commence the extension period for the cancer
presumption to the point at which a firefighter has stopped firefighting altogether rather
than when he ceased work for a particular employer ensures that individuals engaged in
the “vital and hazardous service[]” of firefighting will benefit from the presumption that
eases their burden of proof that on the job exposure to carcinogens was industrially
caused. The risk of cancer for Romo did not end when he left Marinwood because he
continued to serve as a firefighter after that, for San Antonio and then Mill Valley.
In short, the WCAB’s interpretation of subdivision (d) of section 3212.1 is
reasonable and we see no reason to reject it.
Romo seeks an award of attorney fees and costs under section 5801, arguing there
was no reasonable basis for Marinwood’s Petition for Writ of Review. The request is
11
denied. (Chevron U.S.A., Inc. v. Workers’ Comp. Appeals Bd. (1990) 219 Cal.App.3d
1265, 1273–1274 [petition was not without reasonable basis where it raised a question of
law that was previously unaddressed].)
DISPOSITION
For the foregoing reasons, we affirm the WCAB’s decision.
STEWART, J.
We concur.
KLINE, P.J.
RICHMAN, J.
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Counsel:
D’Andre, Peterson, Bobus & Rosenberg, Bernard J. Finnegan, Bonnie B. Park for
Petitioners.
Workers’ Compensation Appeals Board, Anne Schmitz, James T. Losee for Respondent.
Law Offices of Linda Joanne Brown, Karina Kowler for Respondent.
Laughlin, Falbo, Levy & Moresi, Kevin R. Calegari, Stephanie M. Drenski for
Respondent.
13