July 23, 2014

Colorado Court of Appeals: ALJ Misinterpreted Burden of Proof and Should Have Evaluated Risk Factors Introduced by Defense

The Colorado Court of Appeals issued its opinion in Town of Castle Rock v. Industrial Claim Appeals Office on Wednesday, July 3, 2013.

Workers’ Compensation—Presumption of Compensability in CRS § 8-41-209.

The Town of Castle Rock and its insurer (collectively, Town) appealed the judgment of the Industrial Claim Appeals Office (Panel) affirming the ruling of an administrative law judge (ALJ). The order was set aside and the case was remanded with directions.

Claimant had worked as a firefighter, engineer, and paramedic for the Town of Castle Rock since November 2000. He grew up in Albuquerque, New Mexico, and served as a firefighter there before moving to Colorado. During his off hours, claimant worked in construction—and sometimes outdoors—framing and building decks.

In 2011, claimant was diagnosed with malignant melanoma on his right outer calf. He underwent three surgeries to remove the growth and subsequently was released to work full duty. He appears to be cancer free.

Claimant sought both medical benefits and temporary total disability (TTD) benefits under CRS § 8-41-209. The parties stipulated that CRS § 8-41-209’s presumption of compensability applied. The only issue at the hearing was whether the Town had overcome the presumption.

The ALJ ruled that to overcome the presumption, a specific non-work-related cause of the cancer had to be established. The Town’s expert opined that claimant’s various other exposures and risk factors placed him at far greater risk of developing melanoma than his activities as a firefighter. The ALJ ruled that the opinion testimony was insufficient to overcome the presumption. The ALJ noted the statute required showing “by a preponderance of the medical evidence that such condition or impairment did not occur on the job.” The ALJ interpreted this to mean an employer must show that “a claimant’s cancer comes from a specific cause not occurring on the job.” The introduction of other risk factors was not enough. The Panel affirmed the ALJ’s ruling.

The Town and its insurer, CIRSA, argued that the ALJ misinterpreted the statute. Collectively, they asserted that the ALJ should have considered the evidence of risk factors it introduced to determine whether the presumption was overcome. The Court of Appeals agreed.

The statute provides that an otherwise compensable cancer “[s]hall not be deemed to result from the firefighter’s employment if the firefighter’s employer or insurer shows by a preponderance of the medical evidence that such condition or impairment did not occur on the job.” The Court held that evidence of risk factors can be sufficient to overcome the presumption under this language and that it was error to require the Town to prove that the cause of claimant’s cancer arose outside work. The standard applied by the ALJ is nearly insurmountable because the cause of most cancers cannot be determined. Such a standard would amount to a strict liability statute mandating that every firefighter who develops one of the prescribed cancers is entitled to workers’ compensation coverage.

The Court held that an employer may overcome the statutory presumption of compensability with specific risk evidence demonstrating that a particular firefighter’s cancer probably was caused by a source outside work. The case was remanded to the Panel to remand to the ALJ to review the evidence under the standard articulated by the Court.

Summary and full case available here.

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