July 17, 2019

Colorado Court of Appeals: ALJ Not Required to Rank Firefighter’s Cancer Risk Factors in Workers’ Comp Case

The Colorado Court of Appeals issued its opinion in City of Boulder Fire Department v. Industrial Claim Appeals Office on Thursday, June 28, 2018.

Workers’ Compensation—Coverage for Occupational Diseases Contracted by Firefighters—C.R.S. § 8-41-209.

A firefighter worked for the City of Boulder’s fire department for 35 years. After he retired, a doctor discovered he had squamous cell carcinoma in his tongue. He filed a claim for workers’ compensation benefits under C.R.S. § 8-41-209 (section 209). Section 209 creates a presumption that certain cancers are compensable if stricken firefighters meet certain criteria. But it does not impose strict liability on fire departments or cities; rather, the presumption may be overcome by showing that a firefighter’s cancer “did not occur on the job.”

The City challenged the firefighter’s claim. It maintained that human papillomavirus 16/18 was the more likely cause of his cancer and retained an expert that opined that was the case. The firefighter offered testimony from his own expert refuting the City’s expert. Based on the evidence, the administrative law judge (ALJ) decided the cancer was compensable and awarded the firefighter benefits. A panel of the Industrial Claim Appeals Office (Panel) affirmed, finding that substantial evidence supported the ALJ’s findings and conclusions.

On appeal, the City argued it had proved it was more likely that the virus had caused the firefighter’s cancer than other, more attenuated, risks. It further contended that by accepting the “multifactorial” or “combination” of causes advanced by the firefighter’s experts, the ALJ misinterpreted a trio of Colorado Supreme Court cases that had analyzed section 209 (the trio of cases). The City maintained that the trio of cases requires ALJs to “weigh and rank the risk factors to determine whether the employer showed by a preponderance of the evidence that a non-occupational risk factor was the greater or higher risk factor in the firefighter’s cancer.” The trio of cases does not mandate that ALJs rank firefighters’ cancer risks, nor does it preclude consideration of multifactorial causes of cancer. Rather, the cases emphasize that an employer can overcome the presumption by establishing the prevalence of non-work-related-factors. But this does not automatically rebut the section 209 presumption because the determination of whether an employer has met its burden is within the fact-finder’s discretion. Substantial evidence supported the ALJ’s factual findings, and the Panel did not err.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

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