W.C. No. 4-745-560.Industrial Claim Appeals Office.
July 7, 2010.
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FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Jones (ALJ) dated April 16, 2010, that awarded certain medical and temporary total disability (TTD) benefits. We affirm.
This case involves a firefighter who was diagnosed with glioblastoma multiforme, a type of brain cancer. The claimant sought workers’ compensation benefits for his condition pursuant to § 8-41-209 C.R.S. 2009. Section 8-41-209 was enacted in 2007 and concerns workers’ compensation coverage for firefighters who contract certain types of cancer. Colo. Sess. Laws 2007, Ch. 242 at 962. Section 8-41-209 creates a presumption that the listed conditions, which include cancer of the brain, result from a firefighter’s employment.
The matter originally came on for hearing before the ALJ in 2009. In an order dated June 9, 2009, the ALJ denied and dismissed the claimant’s claim for workers’ compensation benefits. The ALJ noted that certain criteria must be met for the application of the presumption contained in § 8-41-209. The ALJ found that the claimant had established that he met these criteria and therefore the statutory presumptions contained in § 8-41-209 applied in this case. However, the ALJ relying on the opinions of several physicians concluded that the respondents had met their burden of proof to establish by a preponderance of the evidence that the claimant’s brain cancer was not related to his employment.
In an order dated November 3, 2009 we reversed and remanded the matter to the ALJ for determination of the claimant’s entitlement to specific benefits under the
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Workers’ Compensation Act (Act). On remand the ALJ entered the April 16, 2010 order, here under appeal, finding the claimant liable for benefits and compensation under the Act. We do not read the present appeal as challenging the factual basis of the amount or type of TTD and medical benefits awarded. Rather the respondents contend the ALJ did not appropriately apply the statutory presumption set forth in § 8-41-209 C.R.S. The respondents contend that they have met every element of the criteria set forth in § 8-41-209 and that the legislative history behind the language used in § 8-41-209 supports their position.
Because the ALJ in her order of April 16, 2010 merely followed our directions on remand to determine what benefits were owed, the present appeal of the respondents is essentially a challenge to our order of June 9, 2009. In that order we expressed the view that the plain and ordinary meaning of the language of the presumption in § 8-41-209 cannot be rebutted by the opinions of medical experts that there is no causal connection between the occupation in general and the disease in question. It was also our view that the legislature had by statute created that causal connection, as evidenced by the clear legislative purpose of 8-41-209 to shift the burden of proof to show work-relatedness from employees to employers in cases where the statutory presumption applied. We are not persuaded to change our view.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 16, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Curt Kriksciun
______________________________ Thomas Schrant
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JEFF CHRIST (DEC), Attn: JULIE CHRIST, HIGHLANDS, RANCH, CO, (Claimant).
LITTLETON FIRE RESCUE, LITTLETON, CO, (Employer).
CCMSI, Attn: PATRICIA RICHARDSON, C/O: CANNON COCHRAN MANAGEMENT, SERVICES, INC., GREENWOOD VILLAGE, CO, (Insurer).
LAW OFFICE OF O’TOOLE SBARBARO, PC, Attn: NEIL D O’TOOLE, ESQ., DENVER, CO, (For Claimant).
NATHAN, BREMER, DUMM MYERS, PC, Attn: ANNE SMITH MYERS, ESQ., DENVER, CO, (For Respondents).
CITY OF LITTLETON, Attn: JOSEPH M GRYNIEWICZ, JR. SPHR, AVENUE, LITTLETON, CO, (Other Party).
MICHELLE PARRIS, WEAVERVILLE, NC, (Other Party 2).
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