Compensability–Firefighters

ICAO was tasked with determining what evidence is sufficient to overcome the presumption of compensability in C.R.S. § 8-41-209, otherwise known as the Firefighter Presumption Statute. It ultimately remanded the ALJ’s orcer and directed the ALJ to determine whether respondents overcame the firefighter’s presumption with the evidence presented.

In this case, the claimant was a firefighter for about twenty years and was diagnosed with pancreatic cancer. He began treating with Dr. VanderHorst, who determined that the cancer was caused by industrial factors and thus work related.

The respondents’ IME (Dr. Allems) opined that the cancer was more likely due to non-industrial factors. He cited and attached various studies, explaining that of the various carcinogenic substances claimant was potentially exposed to, none are known to cause pancreatic cancer.

Even so, the ALJ determined that Dr. Allems’ report was not credible, as the ALJ believed Dr. Allems’ conclusions were based on “hearsay medical articles” and “generalized studies.” Thus, the ALJ held that the claimant’s pancreatic cancer was compensable.

The respondents appealed, arguing that the ALJ had misapplied the Firefighter Presumption Statute and had erred in discrediting Dr. Allems’ report. The ICAO agreed.

First, the ICAO determined that the ALJ ignored the holding in City of Littleton v. Industrial Claim Appeals Office, 370 P.3d 157 (Colo. 2016) – that an employer can overcome the firefighter’s presumption by establishing the absence of either general or specific causation. The ICAO explained that the ALJ dismissed this argument on the basis that Dr. Allems’ opinions did not pertain the claimant’s individualized exposure, when he should have analyzed Dr. Allems’ opinions to determine whether they establish the absence of causation.

Second, the Panel held that the ALJ erroneously precluded Dr. Allems from testifying about the so-called “generalized reports.” The Panel could not determine a basis for precluding this evidence from the record; therefore, the ALJ abused his discretion.

Finally, the Panel vacated and remanded the ALJ’s order. It directed the ALJ to determine whether the respondents established, by a preponderance of the medical evidence, that the respondent overcame the presumption of general causation to show that firefighter’s known or typical occupational exposures are not capable of causing pancreatic cancer.

Shaefer v. Arvada Fire Protection Dist., W.C. No. 5-025-741-01 (ICAO Nov. 14, 2017).

Would you like to know more? Contact Eric J. Pollart at epollart@pollartmiller.com or 720.488.9586.

 

From the January 2018 Pollart Miller Newsletter

2019-01-29T09:26:58-07:00