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Indus. Claim Appeals Office v. Town of Castle Rock

Supreme Court of Colorado, En Banc

May 2, 2016

Industrial Claim Appeals Office and Mike Zukowski, Petitioners
v.
Town of Castle Rock and CIRSA, Respondents

          Certiorari to the Colorado Court of Appeals. Court of Appeals Case No. 12CA2190.

          SYLLABUS

         In a companion case, City of Littleton v. Industrial Claim Appeals Office, 2016 CO 25, the supreme court held that the presumption created by the firefighter statute, § 8-41-209, C.R.S. (2015), 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 section 8-41-209(1) that his condition is a compensable " occupational disease" under the Workers' Compensation Act. However, section 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."

         In this case, the supreme court holds 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.

         Attorneys for Petitioner: Neil D. O'Toole, John Sbarbaro, Denver, Colorado.

         Attorneys for Respondents Town of Castle Rock and CIRSA: Ritsema & Lyon, P.C., Paul Krueger, Alana S. McKenna, Denver, Colorado.

         Attorney for Amicus Curiae Colorado Self Insured Association: Ruegsegger Simons Smith & Stern, LLP, Frank M. Cavanaugh, Denver, Colorado.

         Attorney for Amicus Curiae Pinnacol Assurance: Pinnacol Assurance, Harvey D. Flewelling, Denver, Colorado.

         No appearance by or on behalf of: Industrial Claim Appeals Office.

          OPINION

         MÁRQUEZ, JUSTICE.

          [¶1] Castle Rock firefighter Mike Zukowski was diagnosed with melanoma, a type of skin cancer. He had three excision surgeries to remove the melanoma and was then released to return to work on full duty. He sought both medical benefits and temporary total disability benefits under the " firefighter statute," § 8-41-209, C.R.S. (2015), of the Workers' Compensation Act of Colorado, asserting that his melanoma qualified as a compensable occupational disease. At issue here is whether Zukowski's employer, the Town of Castle Rock, and Castle Rock's insurer, the Colorado Intergovernmental Risk Sharing Agency (collectively, " Castle Rock" ), may seek to overcome a statutory presumption in section 8-41-209(2)(a) that Zukowski's condition resulted from his employment as a firefighter by presenting risk-factor evidence indicating that Zukowski's risk of melanoma from other sources is greater than his risk of melanoma from firefighting.

          [¶2] The firefighter statute applies to firefighters who have completed five or more years of employment as a firefighter. § 8-41-209(1). Section 8-41-209(1) provides that the death, disability, or health impairment of such a firefighter " caused by cancer of the brain, skin, digestive system, hematological system, or genitourinary system" shall be considered an " occupational disease" (thus entitling the firefighter to benefits under the Workers' Compensation Act) if the cancer " result[ed] from his or her employment as a firefighter." Section 8-41-209(2)(a) then creates a statutory presumption that the firefighter's condition or health impairment caused by a listed type of cancer " result[ed] from [the] firefighter's employment" if, at the time of becoming a firefighter or thereafter, the firefighter underwent a physical examination that failed to reveal substantial evidence of such condition or health impairment preexisting his or her employment as a firefighter. Under section 8-41-209(2)(b), however, the firefighter's condition or impairment " [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 question raised in this case is whether, under section 8-41-209, a firefighter's employer or insurer can attempt to meet its burden to show that the firefighter's condition " did not occur on the job" by presenting risk-factor evidence indicating that the firefighter's risk of cancer from other, non-job-related sources is greater than his risk of cancer from firefighting.

          [¶3] In City of Littleton v. Industrial Claim Appeals Office, 2016 CO 25, P.3d, a companion decision issued today, we held that section 8-41-209(2) places the burden of persuasion with the employer to show, by a preponderance of the medical evidence, that the firefighter's condition or health impairment caused by a listed cancer " did not occur on the job." City of Littleton, ¶ 3. We further held that an employer can meet its burden to show a firefighter's cancer " did not occur on the job" by establishing the absence of specific causation. Id. In this case, the employer sought to establish the absence of specific causation by presenting evidence indicating that Zukowski's particular risk of developing melanoma from other, non-job-related sources outweighed his risk of developing melanoma from his employment as a firefighter. We hold that an employer may rely on such evidence in seeking to overcome the presumption in section 8-41-209(2). 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. Accordingly, we affirm the judgment of the court of appeals and remand this case with directions to return the matter to the administrative law judge (" ALJ" ) for reconsideration consistent with this opinion and our decision in City of Littleton.

         I. Facts and Procedural History

          [¶4] Petitioner Mie Zukowski was born in 1972. He grew up in Albuquerque, New Mexico, and moved to Colorado in 2000. While he was growing up, he was involved with Cub Scouts and Boy Scouts, and he played soccer and participated in gymnastics and track and field. He had moles and freckles, but no known family history of melanoma.

          [¶5] Zukowski began employment as a firefighter with the Town of Castle Rock in 2000. He worked as an engineer and paramedic. Before beginning his employment, Zukowski underwent a physical examination by his personal physician, noting a concern with moles at that time. In addition to working as a firefighter, Zukowski also worked part-time doing construction, often outdoors. He eventually opened his own business building decks and ...


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