July 19, 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.

Colorado Court of Appeals: Mutual Benefit Doctrine Supports Union Member’s Claim for Workers’ Compensation Coverage While at CBA Discussion Meeting

The Colorado Court of Appeals issued its opinion in Pueblo County, Colorado v. Industrial Claim Appeals Office on Thursday, May 18, 2017.

Workers’ Compensation—Injury at a Union Meeting—Mutual Benefit Doctrine.

Claimant was president of the local union. She worked for Pueblo County (employer). Union membership is required for workers in a bargaining unit, and union dues are deducted from workers’ paychecks. Participation in union meetings is voluntary. Claimant stayed after work for a union meeting, which was held immediately after claimant clocked out for the day and took place in a conference room in the building in which she worked. The purpose of the meeting was to review and revise the new collective bargaining agreement.

After the meeting, claimant walked to the adjacent parking lot where she normally parked for work. While getting in her car, she slipped on ice and injured herself. She filed a workers’ compensation claim for her medical expenses. An administrative law judge (ALJ) denied and dismissed the claim, finding the claimant “was not in the course and scope of her employment at the time of her injury.” The Industrial Claim Appeals Office (Panel) disagreed, finding the union activities were “sufficiently incidental” to claimant’s work “as to be properly considered as arising out of and in the course of employment.” It remanded to the ALJ to determine benefits. On remand, the ALJ ordered employer to pay all of claimant’s reasonable, necessary, and related medical expenses. The Panel affirmed.

On appeal, employer argued that the Panel erred in holding that the post-work injury sustained immediately following claimant’s attendance at a union meeting arose out of and in the course of employment. An injury arises out of employment when it originates in an employee’s work-related functions and is sufficiently related to those functions to be considered part of employment. It is not essential that an employee be engaged in an obligatory job function.

This was a case of first impression in Colorado but has been addressed in a number of other states. In general, injuries sustained during “unilateral union activities conferring, if any, only a remote or indirect benefit upon the employing enterprise” are not covered. However, the leading treatise recognizes a trend toward finding a mutual employer-employee benefit in actions of union officers. The court of appeals concluded that union activity cases in Colorado should be analyzed under the mutual benefit doctrine to determine compensability. This doctrine requires courts to examine the circumstances of each case to determine whether a union activity is of mutual benefit to the employer and employee. Here, where a union officer participated in a union meeting that served to facilitate ongoing negotiations between the union and employer concerning a new collective bargaining agreement, there was mutual benefit to employer and employee. Further, once mutual benefit is established, the location of the injury is not determinative. Accordingly, the injuries sustained were compensable.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.