Town of Castle Rock v. Indus. Claim Appeals Office of Colo.

• Decision Date: 03 July 2013
• Docket Number: Court of Appeals No. 12CA2190
• Parties: TOWN OF CASTLE ROCK and CIRSA, Petitioners, v. INDUSTRIAL CLAIM APPEALS OFFICE of the State of Colorado and Mike Zukowski, Respondents.
• Court: Colorado Court of Appeals

373 P.3d 609

2013 COA 109

TOWN OF CASTLE ROCK and CIRSA, Petitioners

v.INDUSTRIAL CLAIM APPEALS OFFICE of the State of Colorado and Mike Zukowski, Respondents.

Court of Appeals No. 12CA2190

Colorado Court of Appeals, Div. V.

Announced July 3, 2013

Ritsema & Lyon, P.C., Paul Krueger, Alana S. McKenna, Denver, Colorado, for Petitioners

No Appearance for Respondent Industrial Claims Appeals Office.

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

Opinion by JUDGE GRAHAM

¶ 1 This workers' compensation action raises a question of statutory interpretation: What evidence overcomes the statutory presumption of compensability articulated in section 8–41–209, C.R.S

.2012? The statute provides that certain cancers contracted by firefighters with five or more years on the job shall be compensable under the Workers' Compensation Act (Act), sections 8–40–101 to –47–209, C.R.S.2012. However, an employer may overcome the presumption “by a preponderance of the medical evidence that [the cancer ] did not occur on the job.” § 8–41–209(2)(b), C.R.S.2012. The Industrial Claim Appeals Office (Panel) affirmed the ruling of the administrative law judge (ALJ) that a specific non-work-related cause of the cancer had to be established in order to overcome the presumption. We conclude, to the contrary, that the presumption can be overcome by establishing that the risk of cancer from other sources outweighs the risk created by firefighting. We therefore set aside the Panel's decision and remand this matter for consideration under the statute as interpreted here.

I. Background

¶ 2 The facts of this case are undisputed. Claimant, Mike Zukowski, has worked as a firefighter, engineer, and paramedic for employer, the Town of Castle Rock (the Town), since November 2000. He grew up in Albuquerque, New Mexico, where he was involved in cub scouts, boy scouts, soccer, gymnastics, track and field, and orchestra. He served as a firefighter in that city before moving to Colorado. During his off hours, claimant also worked in construction, framing, and building decks, and sometimes working outside.

¶ 3 In 2011, claimant was diagnosed with malignant melanoma

on his right outer calf. Claimant underwent three excision surgeries to remove the growth. He was subsequently released to work full duty and appears to be cancer free.

Claimant sought both medical benefits and temporary total disability (TTD) benefits under section 8–41–209

. Under the statute,

(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....

§ 8–41–209(1)

, (2)(a), C.R.S.2012. The parties stipulated that section 8–41–209's presumption of compensability applied. The only issue presented at hearing, then, was whether the Town had overcome the presumption.

¶ 5 The Town retained a physician with expertise in occupational and environmental medicine, Dr. William Milliken, M.D., who reviewed claimant's medical records and his history of risk exposures. Dr. Milliken opined that although firefighters have an increased risk of developing melanoma

as compared to the general population, claimant's various other exposures and risk factors—primarily sun exposure and the presence of moles on his skin—placed him at far greater risk of developing melanoma.

¶ 6 The ALJ ruled, however, that Dr. Milliken's testimony was insufficient to overcome the presumption of compensability. The legislature specified that an employer may overcome the presumption by showing “by a preponderance of the medical evidence that such condition or impairment did not occur on the job.” § 8–41–209(2)(b)

. The ALJ interpreted this statutory provision to mean that an employer must show that “a claimant's cancer comes from a specific cause not occurring on the job.” Consequently, the ALJ concluded that the Town's introduction of “risk factors outside of firefighting exposure is insufficient to sustain [employer's] burden of proof.”

¶ 7 On review, the Panel affirmed the ALJ's decision. The Panel reasoned that whether the Town had shown “that firefighting is not a causative factor in ... claimant's skin cancer

is one of fact for determination by the ALJ.” Because the Panel concluded that sufficient evidence supported the ALJ's determination, it declined to set aside the ALJ's order. This appeal followed.

II. Analysis

¶ 8 The Town, along with its insurer, CIRSA (collectively, Town), contends that the ALJ misinterpreted section 8–41–209(2)(b)

when he determined that the evidence it offered was insufficient to overcome the presumption of compensability created by section 8–41–209(1). It argues that, contrary to the ALJ's interpretation, section 8–41–209(2)(b) “does not require an employer to prove the exact cause of [a] claimant's cancer ” in order to overcome the statutory presumption of compensability. Moreover, it contends, in cases such as this, in which the precise cause of a claimant's cancer cannot be determined, mandating that an employer can only overcome the burden by establishing that the “specific cause” did not occur on the job effectively raises an employer's burden “to a heightened burden of proof that is ... akin to a strict liability standard.” The Town asserts that the ALJ should have considered the evidence of risk factors it introduced. It maintains that by finding its evidence insufficient, the ALJ failed to carry out the legislature's intent to leave open an avenue to overcome the statutory presumption. We agree.

A. Rules of Statutory Interpretation

¶ 9 As with all statutory construction, when we interpret a provision of the Act, if its language is clear “we interpret the statute according to its plain and ordinary meaning.” Davison v. Indus. Claim Appeals Office, 84 P.3d 1023, 1029 (Colo.2004)

. In addition, “when examining a statute's plain language, we give effect to every word and render none superfluous, because ‘[w]e do not presume that the legislature used language “idly and with no intent that meaning should be given to its language.” ’ ” Colo. Water Conservation Bd. v. Upper Gunnison River Water Conservancy Dist., 109 P.3d 585, 597 (Colo.2005)

(citation omitted) (quoting Carlson v. Ferris, 85 P.3d 504, 509 (Colo.2003) ).

¶ 10 While we are not bound by the Panel's interpretation or its earlier decisions, Olivas – Soto v. Indus. Claim Appeals Office , 143 P.3d 1178, 1180 (Colo.App.2006)

, and review statutory construction de novo, Ray v. Indus. Claim Appeals Office, 124 P.3d 891, 893 (Colo.App.2005), aff'd, 145 P.3d 661 (Colo.2006), we give deference to the Panel's reasonable interpretations of the statute it administers. Sanco Indus. v. Stefanski, 147 P.3d 5, 8 (Colo.2006) ; Dillard v. Indus.

Claim Appeals Office, 121 P.3d 301, 304 (Colo.App.2005), aff'd, 134 P.3d 407 (Colo.2006).

¶ 11 In general, “an administrative agency's interpretation of its own regulations is ... entitled to great weight and should not be disturbed on review unless plainly erroneous or inconsistent with such regulations.” Jiminez v. Indus. Claim Appeals Office, 51 P.3d 1090, 1093 (Colo.App.2002)

. The Panel's interpretation will, however, be set aside “if it is inconsistent with the clear language of the statute or with the legislative intent.” Support, Inc. v. Indus. Claim Appeals Office, 968 P.2d 174, 175 (Colo.App.1998).

B. Section 8–41–209

's Rebuttable Presumption

¶ 12 As we have discussed, section 8–41–209

creates a rebuttable presumption of compensability for certain cancers contracted by firefighters who have “completed five or more years of employment as a firefighter,” but had no “substantial evidence of such condition or impairment of health that preexisted his or her employment as a firefighter.” The express statutory language provides that an otherwise compensable cancer “[s]hall 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.” § 8–41–209(2)(b).

¶ 13 One division of this court has already examined the burden placed on employers to overcome the presumption. In City of Littleton v. Industrial Claim Appeals Office, 2012 COA 187, ––– P.3d ––––, 2012 WL 5360912

, a division of this court held that the statute required employers to “affirmatively prove, by a preponderance of the evidence, that the firefighter's cancer did not result from, arise out of, or arise in the course of the firefighter's employment.” Id. at ¶ 34. Thus, under the majority's view in City of Littleton, an employer could overcome the presumption by showing “that [the] claimant's occupational exposures (1) could not have caused [the type of cancer the firefighter contracted] (disproving general causation), or (2) did not cause claimant's particular [cancer ] (disproving specific causation).” Id. at ¶ 82.

¶ 14 In City of Littleton,

a firefighter was diagnosed with brain cancer. The City of Littleton introduced evidence showing that while some chemicals had been “weakly associated” with brain cancer, few had “been identified as an exposure in firefighters.” Id. at ¶ 62. The City also challenged the causal link between firefighting and brain cancer. Id. at ¶ 67. The majority held that because the City “produced no evidence about [the firefighter's] specific occupational exposures,”...