December 16, 2018

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 Supreme Court: Workers’ Compensation “Firefighter’s Statute” Shifts Burden of Causation to Employer

The Colorado Supreme Court issued its opinion in City of Littleton v. Industrial Claim Appeals Office on Monday, May 2, 2016.

Workers’ Compensation—Firefighters—Statutory Presumptions.

In this case, the Colorado Supreme Court addressed the presumption created in the “firefighter statute,” C.R.S. § 8-41-209, of the Workers’ Compensation Act of Colorado, C.R.S. §§ 8-40-101 to 8-47-209. The court held that the presumption in C.R.S. § 8-41-209(2)(a) relieves the claimant firefighter of the burden to prove that his cancer “result[ed] from his or her employment as a firefighter” for purposes of establishing under C.R.S. § 8-41-209(1) that his condition is a compensable “occupational disease” under the Workers’ Compensation Act. However, C.R.S. § 8-41-209(2) does not establish a conclusive, or irrebuttable, presumption. Instead, the firefighter statute shifts the burden of persuasion to the firefighter’s employer to show, by a preponderance of the medical evidence, that the firefighter’s condition “did not occur on the job.”

The court held that an employer can meet its burden by establishing the absence of either general or specific causation. Specifically, an employer can show, by a preponderance of the medical evidence, either: (1) that a firefighter’s known or typical occupational exposures are not capable of causing the cause of the claimant’s condition or type of cancer at issue; or (2) that the firefighter’s employment did not cause the firefighter’s particular cancer where, for example, the claimant firefighter was not exposed to the substance or substances that are known to cause the firefighter’s condition or impairment, or where the medical evidence renders it more probable that the cause of the claimant’s condition or impairment was not job-related.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Statutory Presumption of Occupational Disease for Firefighters Not Irrebuttable

The Colorado Supreme Court issued its opinion in Industrial Claim Appeals Office v. Town of Castle Rock on Monday, May 2, 2016.

Workers’ Compensation—Firefighters—Statutory Presumptions.

In a companion case, City of Littleton v. Industrial Claim Appeals Office, 2016 CO 25, the Colorado Supreme Court held that the presumption created by the firefighter statute, C.R.S. § 8-41-209, relieves the claimant firefighter of the burden to prove that his cancer “result[ed] from his or her employment as a firefighter” for purposes of establishing under C.R.S. § 8-41-209(1) that his condition is a compensable “occupational disease” under the Workers’ Compensation Act. However, C.R.S. § 8-41-209(2) does not establish a conclusive, or irrebuttable, presumption. Instead, the firefighter statute shifts the burden of persuasion to the firefighter’s employer to show, by a preponderance of the medical evidence, that the firefighter’s condition “did not occur on the job.”

Here, the court held that an employer can seek to meet its burden to show a firefighter’s cancer “did not occur on the job” by presenting particularized risk-factor evidence indicating that it is more probable that the claimant firefighter’s cancer arose from some source other than the firefighter’s employment. To meet its burden of proof, the employer is not required to prove a specific alternate cause of the firefighter’s cancer. Rather, the employer need only establish, by a preponderance of the medical evidence, that the firefighter’s employment did not cause the firefighter’s cancer because the firefighter’s particular risk factors render it more probable that the firefighter’s cancer arose from a source outside the workplace.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Companion Firefighter Workers’ Compensation Case Remanded for Reconsideration

The Colorado Supreme Court issued its opinion in City of Englewood v. Harrell on Monday, May 2, 2016.

Workers’ Compensation—Firefighters—Statutory Presumptions.

The Colorado Supreme Court accepted transfer of this case from the Colorado Court of Appeals pursuant to C.R.S. § 13-4-109 and C.A.R. 50. The court set aside the order issued by a panel of the Industrial Claim Appeals Office and remanded with directions to return the matter to the administrative law judge for reconsideration in light of its decisions announced in City of Littleton v. Industrial Claim AppealsOffice, 2016 CO 25, and Industrial Claim Appeals Office v. Town of Castle Rock, 2016 CO 26.

Summary provided courtesy of The Colorado Lawyer.

 

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.

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.