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City of Boulder Fire Department v. Industrial Claim Appeals Office of State of Colorado

Court of Appeals of Colorado, First Division

June 28, 2018

City of Boulder Fire Department and CCMSI, Petitioners,
v.
Industrial Claim Appeals Office of the State of Colorado and Dean Pacello, Respondents.

          Industrial Claim Appeals Office of the State of Colorado WC No. 4-990-597

          Dworkin, Chambers, Williams, York, Benson, & Evans, P.C., David J. Dworkin, Denver, Colorado, for Petitioners

          No Appearance for Respondent Industrial Claim Appeals Office

          Law Office of O'Toole and Sbarbaro, P.C., Neil D. O'Toole, Denver, Colorado, for Respondent Dean Pacello

          OPINION

          BERNARD JUDGE.

         ¶ 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 compensable.

         ¶ 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.

         I. 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 malignancy develops.
We know that there are multiple causes of immunosuppression in firefighters.
[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 ...

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