W.C. No. 4-745-560.Industrial Claim Appeals Office.
November 3, 2009.
ORDER
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) dated June 9, 2009, that denied the claimant’s claim for workers’ compensation benefits. We reverse and remand the matter for determination of the claimant’s entitlement to specific benefits under the Workers’ Compensation Act (Act).
In 2007, the claimant was diagnosed with glioblastoma multiforme, a type of brain cancer. The claimant as a firefighter 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 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. Therefore, the ALJ denied and dismissed the claim for compensation. The claimant brings this appeal.
The claimant contends that the ALJ applied an incorrect legal standard in determining that the respondents had overcome the presumption under in § 8-41-209. The
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claimant argues that the ALJ relied upon the testimony of experts who disputed the scientific validity of the presumption created by the General Assembly that brain cancer contracted by a firefighter is occupationally related. In essence the claimant contends that the respondents did not show by a preponderance of the medical evidence that his brain cancer did not occur on the job by presenting medical opinions that the cause of the claimant’s cancer is unknown. We agree.
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.
The respondents primarily relied on the testimony of three physicians. Dr. Damek, an expert in neurology and neuro-oncology, testified that there is no scientific data that would allow one to conclude that the claimant’s occupational exposures caused his brain tumor. Tr. at 63. Dr. Waksman, a toxicologist testified that there is no basis to conclude that any causal connection existed between the claimant’s brain cancer and his exposures as a firefighter. Tr. at 136-137. Dr. Buffler, a professor of epidemiology evaluated epidemiologic studies pertaining to occupational exposures associated with firefighting. Dr. Buffler opined that these studies did not support a conclusion that any form of brain cancer is caused by occupational exposures to chemicals associated with firefighting. Exhibit H at 11. The respondents relied upon these experts to establish that the substances to which firefighters are exposed do not target the brain and that these
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substances did not cause brain cancer. The ALJ found that the opinions of Dr. Damek, Dr. Waksman, and Dr. Buffler were credible and persuasive.
The claimant relied on the opinions and testimony of Dr. Weaver and Dr. Arenson. Dr. Weaver is a physician specializing in occupational and environmental medicine. Dr. Weaver opined that it is more likely than not that the claimant’s brain cancer is work-related as the result of toxic exposure he had experienced during his occupational activities as a professional firefighter. Exhibit 20 at 249. Dr. Arenson is a neuro-oncologist. Dr. Arenson opined that it was more likely than not that the claimant’s brain tumor was caused by occupational exposure as a firefighter. Exhibit 12 at 126. The ALJ found the opinions of the claimant’s experts to be less credible than the opinions of the respondents’ experts.
The presumption at issue here 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. The issue becomes whether the ALJ correctly applied the presumption in determining that the respondents had shown by a preponderance of the medical evidence that the claimant’s brain cancer “did not occur on the job.” As noted, the respondents did that by presenting evidence that the epidemiological studies do not demonstrate a causal connection between the claimant’s occupational exposure from his work as a firefighter and the development of his brain cancer.
In interpreting § 8-41-209, we apply the ordinary rules of statutory construction. The purpose of statutory construction is to effect the legislative intent. Because the best indicator of legislative intent is the language of the statute, words and phrases in a statute should be given their plain and ordinary meanings Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998).
In our view 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. The legislature has 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 applies.
Moreover to the extent that there is any ambiguity in the statute, the legislative history reveals that the General Assembly intended to confer a substantial benefit on firefighters by enacting the presumption in § 8-41-209. It was specifically noted that the legislative purpose of HB 1008 was to amend the workers’ compensation statute to shift the burden from the “impossible” standard that firefighters must prove they contracted
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cancer on the job to the insurance carrier to prove the firefighter did not contract cancer on the job. House Hearing on H.B. 1008 (February 2, 2007) (Representative Cerbo, bill sponsor).
Further, in the hearings before the Senate the sponsor of the bill made the following observations. The bill was to provide relief to firefighters who in the course of their careers are routinely exposed to various burning toxic chemicals, which form complex and unknown combinations. The bill was intended to amend the Workers’ Compensation Act to provide that if a career firefighter develops a certain type of cancer it is presumed that the cancer is a direct result of the occupation and compensation will be approved “automatically”. The presumption is to change the onus of proof so that the employer must demonstrate illness was not the result of the firefighter’s occupation. Senate State Affairs Committee Hearing (April 11, 2007) (Senator Fitz-Gerald, sponsor). The sponsor also noted that the presumption could be rebutted if the insurer could prove that the cancer was the result of exposure outside of the job. Senate State Affairs Committee Hearing (April 11, 2007 April 23, 2007) (Senator Fitz-Gerald, sponsor).
We are persuaded that the enactment of the firefighter presumption represents a legislatively adopted premise that the occupational exposure of firefighters causes cancer. Here the expert medical opinions offered by the respondents merely denied the underlying legislative premise of a causal relationship between the firefighter’s occupational exposure and the development of cancer. Therefore such evidence is insufficient to rebut the presumption contained in § 8-41-209. Accordingly, we conclude that the ALJ’s order must be reversed.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 9, 2009 is reversed and the matter is remanded for determination of the claimant’s entitlement to specific benefits under the Act.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
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JEFF CHRIST, HIGHLANDS RANCH, CO, (Claimant).
LITTLETON FIRE RESCUE, LITTLETON, CO, (Employer).
CCMSI, Attn: PATRICIA RICHARDSON, 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, LITTLETON, CO, (Other Party).
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