Petitioners: City of Englewood and Colorado Intergovernmental Risk Sharing Agency,
Respondents: Delvin Harrell and Industrial Claim Appeals Office
50 Certiorari to the Colorado Court of Appeals. Court of
Appeals Case No. 13CA858. Industrial Claim Appeals Office,
Set Aside and Case Remanded.
supreme court accepted transfer of this case from the court
of appeals pursuant to section 13-4-109, C.R.S. (2015) and
C.A.R. 50. The supreme court sets aside the order issued by a
panel of the Industrial Claim Appeals Office and remands with
directions to return the matter to the administrative law
judge for reconsideration in light of our decisions announced
today in City of Littleton v. Industrial Claim Appeals
Officxe, 2016 CO 25, and Industrial Claim Appeals Office v.
Town of Castle Rock, 2016 CO 26.
for Petitioners: Ritsema & Lyon, P.C., Paul Feld, Paul
Krueger, Alana McKenna, Denver, Colorado.
for Respondent Delvin Harrell: Law Office of O'Toole
& Sbarbaro, P.C., Neil D. O'Toole, Denver, Colorado.
appearance by or on behalf of: Industrial Claim Appeals
[¶1] We accepted transfer of this case from
the court of appeals pursuant to section 13-4-109, C.R.S.
(2015) and C.A.R. 50 because the issues raised involve
matters of substance not previously determined by this court,
and because this court granted certiorari in two cases
raising similar issues. In City of Littleton v. Industrial
Claim Appeals Office, 2016 CO 25, P.3d, and Industrial Claim
Appeals Office v. Town of Castle Rock, 2016 CO 26, P.3d, both
announced today, we set forth our interpretation of section
8-41-209, C.R.S. (2015), of the Workers' Compensation Act
of Colorado, which provides workers' compensation
coverage, under certain conditions, for occupational diseases
[¶2] In City of Littleton, 2016 CO 25, and
Town of Castle Rock, 2016 CO 26, we held that section
8-41-209(2)(a) establishes a presumption that a qualifying
firefighter's cancer " result[ed] from his
employment as a firefighter," and that section
8-41-209(2)(b) shifts the burden of persuasion to the
employer or insurer to show, by a preponderance of the
medical evidence, that the firefighter's condition "
did not occur on the job." We further 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
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 cancer-causing agent, or where the medical
evidence renders it more probable that the cause of the
claimant's cancer was not job-related. City of Littleton,
¶ ¶ 3, 25, 39. In Town of Castle Rock, ¶
¶ 3, 17, 27, we further held that 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. Id. at ¶ ¶
[¶3] In this case, Englewood firefighter
Delvin Harrell was diagnosed with melanoma. He underwent
surgery to remove the melanoma and sought workers'
compensation benefits under section 8-41-209, asserting that
his melanoma qualified as a compensable occupational disease.
As in Town of Castle Rock, the City of Englewood and its
insurer, the Colorado Intergovernmental Risk Sharing Agency
(collectively, " Englewood" ) sought to overcome
the presumption that the claimant's melanoma resulted
from his employment as a firefighter by presenting
risk-factor evidence indicating that the claimant's risk
of melanoma from other sources is greater than his risk of
melanoma from firefighting. Relying on the court of
appeals' analysis in City of Littleton v. Indus. Claim
Appeals Office, 2012 COA 187, P.3d, the ALJ concluded that
Englewood failed to overcome the presumption in section
8-41-209(2)(a). A panel of the Industrial Claim Appeals
Office (" Panel" ) affirmed the ALJ's order.
[¶4] Because the ALJ and the Panel in this
case did not have the benefit of our analysis in City of
Littleton and Town of Castle Rock, we set aside the
Panel's order affirming the ALJ and remand this case to
the Panel with directions to return the matter to the ALJ for
reconsideration in light of our decisions announced today in
City of Littleton and Town of Castle Rock.