Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

City of Englewood v. Harrell

Supreme Court of Colorado, En Banc

May 2, 2016

Petitioners: City of Englewood and Colorado Intergovernmental Risk Sharing Agency,
v.
Respondents: Delvin Harrell and Industrial Claim Appeals Office

         C.A.R. 50 Certiorari to the Colorado Court of Appeals. Court of Appeals Case No. 13CA858. Industrial Claim Appeals Office, WC4873594.

          Order Set Aside and Case Remanded.

          SYLLABUS

         The 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.

         Attorneys for Petitioners: Ritsema & Lyon, P.C., Paul Feld, Paul Krueger, Alana McKenna, Denver, Colorado.

         Attorney for Respondent Delvin Harrell: Law Office of O'Toole & Sbarbaro, P.C., Neil D. O'Toole, Denver, Colorado.

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

          OPINION

         MÁRQUEZ, JUSTICE.

          [¶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.[1] 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 affecting firefighters.

          [¶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 ¶ ¶ 17, 27.

          [¶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.

---------


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.