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City & County of Denver v. Industrial Claim Appeals office of State

Court of Appeals of Colorado, Fifth Division

May 8, 2014

City and County of Denver, Petitioner,
v.
Industrial Claim Appeals Office of the State of Colorado and Russell Andrews, Respondents

Industrial Claim Appeals Office of the State of Colorado. WC No. 4-820-266.

Scott Martinez, City Attorney, Christian M. Lind, Assistant City Attorney, Denver, Colorado, for Petitioner.

No Appearance for Respondent Industrial Claim Appeals Office.

Law Office of O'Toole & Sbarbaro, P.C., Neil D. O'Toole, Denver, Colorado, for Respondent Russell Andrews.

Opinion by JUDGE GRAHAM. Bernard and Berger, JJ., concur.

OPINION

Page 314

GRAHAM, JUDGE.

[¶1] This case raises a question of statutory interpretation that has not yet been addressed by any division of this court or by the Colorado Supreme Court: What constitutes " employment" for purposes of calculating the five-year time period under the " firefighter cancer presumption statute" ? § 8-41-209, C.R.S. 2013.

[¶2] Petitioner here, the City and County of Denver (also referred to as the Denver Fire Department or Denver), seeks review of a final order of the Industrial Claim Appeals Office (Panel) which affirmed the order of an administrative law judge (ALJ) awarding claimant, Russell Andrews, medical benefits and temporary and permanent disability benefits. The Panel held claimant was entitled to the presumption of compensability created by section 8-41-209. The Panel included claimant's four years of service as a volunteer firefighter and emergency medical technician (EMT) for the Elbert Fire Protection District and his training at the Rocky Mountain Fire Academy when it calculated the five years of " employment as a firefighter" needed to apply the statutory presumption. Denver contends the Panel improperly calculated claimant's length of service and argues that the presumption should not have been applied to claimant's case. We agree with the

Page 315

Panel's interpretation, however, and conclude that the presumption applies to claimant's claim. We therefore affirm the Panel's decision.

I. Background

[¶3] The facts in this case are not disputed. Claimant is a first grade firefighter for the Denver Fire Department. He was hired by Denver on October 1, 2004. Prior to taking his oath of office as a firefighter for Denver 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 EMT for the Elbert Fire Protection District before entering the fire academy.

[¶4] In October 2009, claimant experienced flu-like symptoms, which were attributed to a virus. Although the flu-like symptoms dissipated, claimant continued to feel tired and weak, and, in the following months, lost about twenty pounds. After an episode of acute shoulder and abdominal pain in late January 2010, claimant sought treatment in the emergency room.

[¶5] On February 12, 2010, claimant was diagnosed with chronic myelogenous leukemia (CML). He filed a claim for workers' compensation benefits under section 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. Relying on the testimony of Denver's medical expert, the ALJ found the onset of claimant's CML occurred in November 2009.

[¶6] At the hearing, Denver argued that claimant did not meet the statute's mandate of five-years of " employment as a firefighter" to trigger the presumption. The ALJ disagreed, however, finding that claimant's four years as a firefighter in Elbert County and his time spent at the fire academy could be included in the length-of-employment calculation, giving claimant more than ...


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