October 23, 2016

Colorado Court of Appeals: Time Spent as Volunteer Firefighter Counts as Employment for Workers’ Comp Purposes

The Colorado Court of Appeals issued its opinion in City & County of Denver v. Industrial Claim Appeals Office on Thursday, May 8, 2014.

Firefighter—Cancer—Employment—Volunteer—Training—Workers’ Compensation—Home Rule Municipality.

Claimant is a first-grade firefighter for the Denver Fire Department. He was hired by Denver on October 1, 2004. Before taking his oath of office as a firefighter in February 2005, claimant completed a seventeen-week course at the Rocky Mountain Fire Academy as a probationary firefighter for Denver. Claimant also garnered four years’ experience as a volunteer firefighter and emergency medical technician for the Elbert Fire Protection District before entering the fire academy. On February 12, 2010, claimant was diagnosed with chronic myelogenous leukemia. He filed a claim for workers’ compensation benefits under CRS § 8-41-209 for his cancer treatments, invoking the statute’s presumption that certain cancers contracted by firefighters with five or more years of service are compensable occupational diseases. The administrative law judge (ALJ) found in favor of claimant and the Industrial Claim Appeals Office (Panel) agreed. The Court of Appeals affirmed.

On appeal, Denver contended that the ALJ and Panel misinterpreted CRS § 8-41-209(1) by including in the length of claimant’s “employment as a firefighter” both (a) the entire time claimant served as volunteer firefighter and (b) his time training at the fire academy. It argued that it did not “employ” claimant as a firefighter, within the meaning of § 8-41-209(1), until he took his oath of office as a firefighter in February 2005. However, the definition of “employee” set out in the Workers’ Compensation Act expressly includes “all members of volunteer fire departments.” By including volunteer firefighters in the definition of “employee,” the legislature made clear its intent that injuries sustained by volunteer firefighters in the course and scope of their volunteer work be compensable under the Act. Accordingly, the Panel did not err in finding that length of firefighting service under § 8-41-209 should begin to run from the date on which a volunteer firefighter fights his or her first actual or training fire, including time spent at the fire academy.

Denver also contended that its status as a home rule municipality gives it the right and authority to define “firefighter” and “probationary firefighter” as it sees fit. The scope of “employment as a firefighter” under the firefighter cancer presumption statute and workers’ compensation benefits are considered a matter of state-wide concern, which a home rule municipality may not supersede.

Summary and full case available here.

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