Monday, November 22, 2010
Officer’s Cancer Death Not Service-Connected—C.A.
By SHERRI M. OKAMOTO, Staff Writer
This district’s Court of Appeal on Friday upheld the denial of service-connected death benefits to the widow of a Los Angeles deputy sheriff.
Div. One concluded the government had rebutted the statutory presumption that David Sameyah’s exposure to known carcinogens during the performance of his job duties was not reasonably linked to the non-Hodgkin’s lymphoma which killed him at the age of 47.
Sameyah allegedly began experiencing abdominal pain in 2002 and was diagnosed with having a stomach ulcer. A biopsy of the ulcer indicated gastric lymphoma, and it was later determined Sameyah had Burkitt’s lymphoma, a rare but aggressive form of cancer.
After Sameyah’s death in 2004, his widow filed an application with the Los Angeles County Employees Retirement Association for service-connected survivor benefits. Karen Sameyah alleged that her husband’s lymphoma was the result of his exposure to carcinogens during the seven years he worked as a deputy sheriff assigned to the North County Correctional Facility and Lennox Station near the Los Angeles International Airport.
LACERA denied Karen Sameyah’s application and she filed a petition for peremptory writ of mandate, seeking an order compelling the agency to reverse its decision.
She contended that her husband was exposed to known carcinogens at work, including “asbestos, lead, benzene, burnt jet fuel, other fuel oils, gasoline, diesel and engine exhaust, radio transmissions and petroleum solvents.”
Her medical expert also asserted that “research has indicated that Epstein-Barr virus, a common viral pathogen, is a risk factor for the development of Burkitt’s” and that David Sameyah’s occupation as a peace officer exposed him to “incarcerated individuals with poor personal hygiene, IV drug users, patients with HIV, and the homeless populations” who were known to harbor infectious disease at a higher rate.
Los Angeles Superior Court Judge David P. Yaffe declined the requested relief. He explained that David Sameyah’s lymphoma was presumed to be service-connected under Government Code Sec. 31720.6(a), which provides that cancer “shall be presumed to arise our of and in the course of employment” for any active member of law enforcement who has completed five years or more of service.
However subsection (c), provides that this presumption “may be controverted by evidence, that the carcinogen to which the member has demonstrated exposure is not reasonably linked to the disabling cancer, provided that the primary site of the cancer has been established.”
Yaffe determined that LACERA had made the requisite showing outlined in subsection (c), and Justice Victoria Gerrard Chaney concluded that substantial evidence supported Yaffe’s decision in her opinion for the appellate court.
Chaney noted that experts for LACERA and Karen Sameyah linked the development of Burkitt’s lymphoma to the Epstein-Barr strain of herpes viruses, but there was no evidence David Sameyah was exposed to this virus as a result of his job duties.
“Evidence that Mr. Sameyah might have come into contact with an inmate or suspect who might have had a virus is not sufficient evidence of a carcinogenic exposure,” she said.
Combined with evidence that the latency period for cancers based on the type of chemical exposure alleged in the complaint was longer than the period of David Sameyah’s employment, the justice concluded LACERA’s showing was sufficient to rebut Sec. 31720.6(a)’s presumption.
Presiding Justice Robert M. Mallano and Justice Jeffrey W. Johnson joined Chaney in her decision.
Sameyah was represented by Thomas J. Wicke and Allison E. Barrett of Lewis, Marenstein, Wicke, Sherwin & Lee for Sameyah and LACERA by attorneys Robert Van Der Volgen and James J. Castranova.
The case is Sameyah v. Los Angeles County Employees Retirement Association, 10 S.O.S. 6532.
Copyright 2010, Metropolitan News Company