Industrial Claim Appeals Office of the State of Colorado WC
Dworkin, Chambers, Williams, York, Benson, & Evans, P.C.,
David J. Dworkin, Denver, Colorado, for Petitioners
Appearance for Respondent Industrial Claim Appeals Office
Office of O'Toole and Sbarbaro, P.C., Neil D.
O'Toole, Denver, Colorado, for Respondent Dean Pacello
1 Must a firefighter's cancer risks be ranked in a
workers' compensation case, and, if so, must the highest
risk be considered the cause of the firefighter's cancer,
to the exclusion of other causes? We answer these questions
in the context of a challenge to the final order of a panel
of the Industrial Claim Appeals Office of Colorado that
affirmed the decision of an administrative law judge. The
challengers are an employer, the City of Boulder Fire
Department, and its insurer, Cannon Cochran Management
Service, Inc., or CCMSI, which we shall refer to both as
"the City." The judge found that the City had not
overcome the statutory presumption that the squamous cell
carcinoma in firefighter Dean Pacello's tongue was
2 The City contends that the judge should have ranked the
possible causes of the firefighter's cancer to identify
the highest risk factor. When the judge did not do so, the
City continues, he did not follow a trio of Colorado Supreme
Court opinions that had interpreted section 8-41-209, C.R.S.
2017, which we will shorten to "section 209," and
its statutory presumption. We disagree because we conclude
that (1) the trio of cases does not require the judge to rank
the causes of the firefighter's cancer; (2) the
sufficiency of the evidence that the City needed to overcome
section 209's presumption of compensability was a
question for the judge to decide; and (3) substantial
evidence supported the judge's factual findings. We
therefore affirm the panel's decision.
Background and Procedural History
3 The firefighter worked for the City's fire department
for thirty-five years. He retired in 2013. In July 2015, a
doctor discovered that the firefighter had squamous cell
carcinoma in his tongue. He filed a claim for workers'
compensation benefits under section 209.
4 The legislature enacted section 209 in 2007. Ch. 245, sec.
1, § 8-41-209, 2007 Colo. Sess. Laws 962-63. Subsections
(1) and (2)(a) of section 209 create a presumption that
brain, skin, digestive, hematological, or genitourinary
cancers are compensable if stricken firefighters meet certain
criteria. But the legislature did not impose strict liability
for these cancers on fire departments or cities. Instead,
under section 209(2)(b), an employer, such as the City, may
overcome the presumption by showing that a firefighter's
cancer "did not occur on the job."
5 The City challenged the firefighter's workers'
compensation claim. It maintained that the human
papillomavirus 16/18, which is a sexually transmitted virus
known to cause cancer of the tongue in some men, was the more
likely cause of his cancer. (A biopsy determined that the
mass at the base of the firefighter's tongue was positive
for the virus.)
6 To overcome the statutory presumption of compensability,
the City retained a medical expert, Dr. Richard Bell, who
specialized in cancers of the head and neck. Dr. Bell
testified that, because the firefighter's tumor tested
positive for the virus, "and the association between
[the virus] and [cancer caused by the virus] and cigarette
smoking is . . . weak," the firefighter's tongue
cancer "was not related to his occupation . . . ."
Dr. Bell added that the "preponderance of the evidence
would suggest that [the firefighter's cancer] [had been]
caused by a virus that was sexually transmitted that was not
related to occupational smoke exposure."
7 Dr. Alexander Jacobs, an internal medicine specialist,
echoed Dr. Bell's opinion. Dr. Jacobs observed that
[t]his is one of the few instances where we actually have a
known etiologic factor that causes cancer. In women, this is
in the form of cervical cancer and in both men and women in
the form of oral/pharyngeal cancer.
In conclusion, [the firefighter] does have metastatic
squamous cell carcinoma of the tongue and oral pharynx.
Surgical pathology was positive for [the virus]. In my
opinion, tobacco usage and even alcohol usage may have added
a predisposition to this condition. However, the cause is
clearly the . . . virus.
8 In response, the firefighter offered testimony from Dr.
Annyce Mayer, an occupational medicine expert, to refute the
opinions of Drs. Bell and Jacobs. Dr. Mayer testified that,
in her opinion, the firefighter's cancer was caused by a
"combination of [the virus] and the carcinogens to which
he was exposed . . . that significantly elevated his risk of
developing the cancer." She added that "we do know
that the risk is significantly increased with the combination
of the two." She cited a 1998 study in support of her
opinion. It found a "1.7-fold increased risk" of
contracting cancer from the virus alone; a "3.2-fold
increased risk" from smoking alone; but "a
synergistically-increased risk of 8.5-fold in those with both
[the virus] and smoking." She thought that, although the
1998 study examined cigarette smoking rather than exposure to
smoke while fighting fires, it was nonetheless relevant
because "cigarette smoking and carcinogen exposures in
fire, soot, and smoke have some carcinogens in common."
9 The firefighter's treating doctor, Dr. Sander Orent,
corroborated Dr. Mayer's opinions. He described the
firefighter's cancer as a "multifactorial
disease" that was
a result of not just the exposure to carcinogens or the
presence of [the virus]. It is a product of the fact that the
necessary soil for cancer is the [virus] and the carcinogen.
Something has to make the seed grow. The [virus] is sitting
there doing nothing until the carcinogen comes along and
suppresses the immune system to the point where the
We know that there are multiple causes of immunosuppression
[The firefighter] has been exposed to uncounted amounts of
toxins in the course and scope of his job. . . . [T]he
preponderance of the evidence, in my view, is overwhelming
that his exposures to carcinogens in the course and scope of
his work are far more important ...