IN THE MATTER OF THE CLAIM OF HERB GEORGE, Claimant, v. CITY OF WESTMINSTER AND RED WHITE BLUE FIRE DISTRICT Employer, and CITY OF WESTMINSTER RISK MANAGEMENT DEPT, AND CSDP COUNTY TECHNICAL SERVICES Insurer, Self-Insured Respondents.

W.C. Nos. 4-791-814 4-787-897.Industrial Claim Appeals Office.
January 14, 2011.

FINAL ORDER
The respondent City of Westminster seeks review of an order of Administrative Law Judge Felter (ALJ) dated August 19, 2010, that found it liable for the claimant’s injury and ordered it to pay certain benefits. We affirm.

On January 30, 2009 the claimant was diagnosed as having cancer of the genitourinary system (prostate cancer). The claimant filed workers’ compensation claims against the City of Westminster (Westminster W.C. 4-791-814) and against Red White Blue First District (RWB W.C. 4-787-897). The claimant worked for Westminster as a fighfighter from June, 1978 until March 2, 2008. On March 17, 2008 RWB hired the claimant as a Battalion Chief where he remained employed.

At the hearing both respondents agreed the claimant had sustained an occupational disease in the form of prostate cancer and that the claimant met the requirements of § 8-41-209 C.R.S., which concerns occupational diseases contracted by firefighters. Section 8-41-209 creates a presumption that the listed conditions, which include cancer of the genitourinary system, result from a firefighter’s employment. The presumption removes the initial burden of a firefighter, who can seek benefits merely on a showing that the firefighter has completed five or more years of employment and that there was a physical examination that failed to reveal substantial evidence of such condition. Christ v. Littleton Fire Rescue, W.C. No. 4-745-560 (November 03, 2009). The issue for resolution at the hearing was which employer was liable for the claimant’s occupational disease.

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The ALJ found that Westminster had failed to prove that the claimant’s condition did not occur on the job with Westminster and, moreover occurred while the claimant worked for RWB. The ALJ found that RWB had proven, by a preponderance of the evidence, that the claimant sustained no injurious exposures to the causes of prostate cancer while employed by RWB. The ALJ concluded that Westminster had failed to overcome the presumption contained in § 8-41-209(2)(a) and RWB did overcome the presumption that the claimant sustained an injurious exposure to the causes of prostate cancer while employed at RWB. The ALJ denied and dismissed the claim against RWB and found Westminster liable for the claimant’s occupational disease and ordered it to pay certain benefits.

The respondent Westminster brings this appeal arguing that as a matter of law the last fire department for which a firefighter is employed when cancer is diagnosed is solely liable for the medical and indemnity benefits related to an occupational disease pursuant to § 8-41-209. Therefore, Westminster contends the ALJ erred in failing to find RWB liable for the claimant’s benefits. We are unpersuaded that the ALJ erred.

Section 8-41-209 C.R.S. contains special provisions for occupational diseases contracted by firefighters. Section 8-41-209 provides as follows:

(1) Death, disability, or impairment of health of a firefighter of any political subdivision who has completed five or more years of employment as a firefighter, caused by cancer of the brain, skin, digestive system, hematological system, or genitourinary system and resulting from his or her employment as a firefighter, shall be considered an occupational disease.
(2) Any condition or impairment of health described in subsection (1) of this section:
(a) Shall be presumed to result from a 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 impairment of health that preexisted his or her employment as a firefighter; and
(b) Shall 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.

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We do not read the statements of counsel at the inception of the hearing regarding a stipulation by the respondents that the claimant had suffered a compensable occupational disease under § 8-41-209 as a waiver by RWB of its statutory right under § 8-41-209 (2)(b) to attempt to show by a preponderance of the medical evidence that such condition did not occur on the job with RWB. Tr. at 7. In our view, both respondents retained the right to prove by a preponderance of the evidence that the claimant’s condition did not occur on the job pursuant to § 8-41-209 (2)(b). Tr. at 20. In fact counsel for RWB made it clear that RWB did not concede that the presumption under § 8-41-209 (2)(b) applied to it. Tr. at 22-23.

Here the ALJ found that Westminster, while asserting that the claimant’s last injurious exposure occurred while the claimant was employed by RWB, had failed to prove this proposition. Instead the ALJ concluded that RWB proved that the claimant’s last injurious exposure occurred while Westminster employed the claimant.

We note that § 8-41-209 is silent as to assignment of liability between employers subject to the presumption of entitlement to benefits. However, it is presumed that the General Assembly acts with awareness of prior decisional law on the subject matter under inquiry when it amends a statute. People v. Zapotocky, 869 P.2d 1234 (Colo. 1994). Therefore, we look for guidance to established precedent on the issue of last injurious exposure.

Here, neither employer contested that the claimant suffers from an occupational disease pursuant to the presumption created by § 8-41-209. Rather, the employers disputed who was liable for the benefits due the claimant. Where the claimant suffers an occupational disease and is exposed to the hazards of the disease during successive employments, or where successive insurers provide coverage, liability for the occupational disease is governed by the “last injurious exposure rule.” Robbins Flower Shop v. Cinea, 894 P.2d 63 (Colo. App. 1995). Section 8-41-304(1), C.R.S., provides that the employer in whose employment the claimant was last injuriously exposed and suffered a substantial, permanent aggravation of the disease is solely liable for all compensation benefits due on account of the disease.

In Monfort, Inc. v. Rangel 867 P.2d 122 (Colo. App. 1993), the court explained that the addition of the phrase “substantial permanent aggravation” to § 8-41-304(1) did not eliminate or change the last injurious exposure test for causation as interpreted i Union Carbide and Royal Globe v. Collins 723 P.2d 731 (Colo. 1986). Rather, the addition of that phrase to the statute imposing liability upon the last employer minimizes the harsh effects of that statute only to the extent that liability now is limited to those employers in whose employ there has been exposure to a harmful concentration of the hazard.

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As we read the ALJ’s order he found that the claimant’s employment with RWB as a trainer and administrator did not result in an injurious exposure. The ALJ made the following findings of fact. The written assertions made by the claimant in his completed interrogatories on the subject of the nature of his work with Westminster and RWB were credible and persuasive. The claimant was injuriously exposed to toxic materials, presumed to be carcinogenic by the General Assembly as communicated by its adoption of § 8-41-209. Westminster did not contest that the claimant was exposed to toxic byproducts as a result of his work for it as an active firefighter and hazardous materials technician. The claimant received no injurious exposure while employed with RWB as a trainer and administrator. The claimant did not participate in any active firefighting during his employment with RWB prior to being diagnosed with prostate cancer. Accordingly the ALJ found that the claimant’s condition did not occur during his employment with RWB pursuant to § 8-41-209(2)(b).

As we read the ALJ’s order, the claimant was not exposed to a harmful concentration of the hazard as a trainer and administrator. Because of this factual finding this is not a case where compensation is sought for an occupational disease to which the claimant has been injuriously exposed in successive employments, and therefore liability is to be assigned based upon the “last injurious exposure” rule. We understand the ALJ to have been persuaded that the claimant’s work as a Battalion Chief did not expose him to the various burning toxic chemicals that form complex and unknown combinations, which is the basis for the presumption concerning firefighters in § 8-41-209. In contrast, the ALJ found that the claimant engaged in an active career as a firefighter for Westminster and thus the § 8-41-209 presumption applied.

Essentially, the ALJ was persuaded that the claimant did not act as a “firefighter” in his work for RWB. Therefore the claimant did not receive an injurious exposure presumed under § 8-41-209 to have occurred when a firefighter contracts certain types of cancer. Therefore, the ALJ determined that RWB established by a preponderance of the evidence that conditions did not occur on the job with RWB and under § 8-41-209 (2)(b) the claim against that employer must be dismissed. This determination is factual and therefore we are bound by the ALJ’s findings if supported by substantial evidence. Section 8-43-301(8); Gutierrez v. Nortrak, W.C. No. 4-789-425 (July 30, 2010). We do not understand Westminster as challenging these facts. In any event the record fully supports these findings. See RWB Exhibit A at 9 10 12; Exhibit B at 23-25; Exhibit V at 144; Supplemental Answers to Westminster’s Interrogatories at 1.

We acknowledge that the firefighter presumption represents a legislatively adopted premise that the occupational exposure of firefighters causes the type of cancer the claimant contracted. However, in our opinion the ALJ correctly applied the

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presumption in determining that the claimant, in his work for RWB, was not exposed to the toxic chemicals that firefighters are presumed to be exposed to as contemplated under § 8-41-209 and therefore the claimant’s condition did not occur on the job with RWB.

IT IS THEREFORE ORDERED that the ALJ’s order dated August 19, 2010 is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

______________________________ Curt Kriksciun

______________________________ Thomas Schrant

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HERB GEORGE, WESTMINSTER, CO, (Claimant).

CITY OF WESTMINSTER, Attn: MARTEE ERICKSON, WESTMINSTER, CO, (Employer).

CITY OF WESTMINSTER RISK MANAGEMENT DEPT, Attn: (CARRIER NUMBER WC 090000340-01), C/O: LISSA PIERCE, GOLDEN, CO, (Insurer).

LAW OFFICE OF O’TOOLE SBARBARO, PC, Attn: NEIL D. O’TOOLE, ESQ., DENVER, CO, (For Claimant).

RITSEMA LYON, PC, Attn: T. PAUL KRUEGER II, ESQ., DENVER, CO, (For Respondents).

RED WHITE BLUE FIRE DISTRICT, Attn: DONNA TREBER, BRECKENRIDGE, CO, (Other Party).

DWORKIN, CHAMBER WILLIAMS, PC, Attn: MELISSA J. LOMAN EVANS, ESQ., DENVER, CO, (Other Party 2).

CSDP COUNTY TECHNICAL SERVICES, LESLIE CAVANAUGH, DENVER, CO (Other Party 3).

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