Richard Ellenberger ; Jennifer Ellenberger Individually As Guardian Ad Litem For Minor Dependents Isabella Ellenberger Caitlyn Vasquez Carissa Vasquez — ADJ9699542

The widow and minor dependents of Richard Ellenberger, a wildland firefighter and Fire Captain for Cal Fire who died of cancer, sought reconsideration of a WCJ's Findings and Order denying AOE/COE for neck/tongue and colon/rectal cancers. The WCJ had found the Labor Code section 3212.1 firefighter cancer presumption applied but was rebutted by defendant because PQME Dr. Fishman opined that Lynch Syndrome (HNPCC) caused the colorectal cancer and HPV-16 caused the tongue cancer. The Appeals Board rescinded the F&O, holding that Dr. Fishman's opinions did not constitute substantial medical evidence sufficient to rebut the presumption because he failed to explain whether the nonindustrial genetic and viral factors excluded any reasonable industrial contribution. The Board emphasized the low 'not zero' causation threshold in death cases and found the latency analysis improperly truncated 16 years of continued occupational carcinogen exposure. The Board substituted a new decision finding injury AOE/COE, that defendant failed to rebut the section 3212.1 presumption, and deferred issues of temporary disability, death benefits, dependency, and the CalPERS Special Death Benefit.