City of Boulder v. ICAO ( 2018 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
June 28, 2018
2018COA93
No. 17CA1936, City of Boulder v. ICAO — Labor and Industry —
Workers’ Compensation — Coverage for Occupational Diseases
Contracted by Firefighters
A division of the court of appeals considers whether a
firefighter’s cancer risks must be ranked in a workers’
compensation case, and if so, whether the highest risk must be
considered the cause of a firefighter’s cancer, to the exclusion of all
other causes. The division concludes that a trio of Colorado
Supreme Court cases — City of Littleton v. Industrial Claim Appeals
Office, 2016 CO 25; Industrial Claim Appeals Office v. Town of
Castle Rock, 2016 CO 26; and City of Englewood v. Harrell, 2016
CO 27 — do not require administrative law judges to rank risk
factors in the course of determining whether employers have
rebutted the statutory presumption found in section 8-41-209,
C.R.S. 2017.
The division also concludes that there was substantial
evidence to support the judge’s factual findings that the employer
had not overcome the presumption of compensability.
COLORADO COURT OF APPEALS 2018COA93
Court of Appeals No. 17CA1936
Industrial Claim Appeals Office of the State of Colorado
WC No. 4-990-597
City of Boulder Fire Department and CCMSI,
Petitioners,
v.
Industrial Claim Appeals Office of the State of Colorado and Dean Pacello,
Respondents.
ORDER AFFIRMED
Division I
Opinion by JUDGE BERNARD
Taubman and Welling, JJ., concur
Announced June 28, 2018
Dworkin, Chambers, Williams, York, Benson, & Evans, P.C., David J. Dworkin,
Denver, Colorado, for Petitioners
No Appearance for Respondent Industrial Claim Appeals Office
Law Office of O’Toole and Sbarbaro, P.C., Neil D. O’Toole, Denver, Colorado, for
Respondent Dean Pacello
¶1 Must a firefighter’s cancer risks be ranked in a workers’
compensation case, and, if so, must the highest risk be considered
the cause of the firefighter’s cancer, to the exclusion of other
causes? We answer these questions in the context of a challenge to
the final order of a panel of the Industrial Claim Appeals Office of
Colorado that affirmed the decision of an administrative law judge.
The challengers are an employer, the City of Boulder Fire
Department, and its insurer, Cannon Cochran Management
Service, Inc., or CCMSI, which we shall refer to both as “the City.”
The judge found that the City had not overcome the statutory
presumption that the squamous cell carcinoma in firefighter Dean
Pacello’s tongue was compensable.
¶2 The City contends that the judge should have ranked the
possible causes of the firefighter’s cancer to identify the highest risk
factor. When the judge did not do so, the City continues, he did not
follow a trio of Colorado Supreme Court opinions that had
interpreted section 8-41-209, C.R.S. 2017, which we will shorten to
“section 209,” and its statutory presumption. We disagree because
we conclude that (1) the trio of cases does not require the judge to
rank the causes of the firefighter’s cancer; (2) the sufficiency of the
1
evidence that the City needed to overcome section 209’s
presumption of compensability was a question for the judge to
decide; and (3) substantial evidence supported the judge’s factual
findings. We therefore affirm the panel’s decision.
I. Background and Procedural History
¶3 The firefighter worked for the City’s fire department for thirty-
five years. He retired in 2013. In July 2015, a doctor discovered
that the firefighter had squamous cell carcinoma in his tongue. He
filed a claim for workers’ compensation benefits under section 209.
¶4 The legislature enacted section 209 in 2007. Ch. 245, sec. 1,
§ 8-41-209, 2007 Colo. Sess. Laws 962-63. Subsections (1) and
(2)(a) of section 209 create a presumption that brain, skin,
digestive, hematological, or genitourinary cancers are compensable
if stricken firefighters meet certain criteria. But the legislature did
not impose strict liability for these cancers on fire departments or
cities. Instead, under section 209(2)(b), an employer, such as the
City, may overcome the presumption by showing that a firefighter’s
cancer “did not occur on the job.”
¶5 The City challenged the firefighter’s workers’ compensation
claim. It maintained that the human papillomavirus 16/18, which
2
is a sexually transmitted virus known to cause cancer of the tongue
in some men, was the more likely cause of his cancer. (A biopsy
determined that the mass at the base of the firefighter’s tongue was
positive for the virus.)
¶6 To overcome the statutory presumption of compensability, the
City retained a medical expert, Dr. Richard Bell, who specialized in
cancers of the head and neck. Dr. Bell testified that, because the
firefighter’s tumor tested positive for the virus, “and the association
between [the virus] and [cancer caused by the virus] and cigarette
smoking is . . . weak,” the firefighter’s tongue cancer “was not
related to his occupation . . . .” Dr. Bell added that the
“preponderance of the evidence would suggest that [the firefighter’s
cancer] [had been] caused by a virus that was sexually transmitted
that was not related to occupational smoke exposure.”
¶7 Dr. Alexander Jacobs, an internal medicine specialist, echoed
Dr. Bell’s opinion. Dr. Jacobs observed that
[t]his is one of the few instances where we
actually have a known etiologic factor that
causes cancer. In women, this is in the form
of cervical cancer and in both men and women
in the form of oral/pharyngeal cancer.
3
In conclusion, [the firefighter] does have
metastatic squamous cell carcinoma of the
tongue and oral pharynx. Surgical pathology
was positive for [the virus]. In my opinion,
tobacco usage and even alcohol usage may
have added a predisposition to this condition.
However, the cause is clearly the . . . virus.
¶8 In response, the firefighter offered testimony from Dr. Annyce
Mayer, an occupational medicine expert, to refute the opinions of
Drs. Bell and Jacobs. Dr. Mayer testified that, in her opinion, the
firefighter’s cancer was caused by a “combination of [the virus] and
the carcinogens to which he was exposed . . . that significantly
elevated his risk of developing the cancer.” She added that “we do
know that the risk is significantly increased with the combination of
the two.” She cited a 1998 study in support of her opinion. It
found a “1.7-fold increased risk” of contracting cancer from the
virus alone; a “3.2-fold increased risk” from smoking alone; but “a
synergistically-increased risk of 8.5-fold in those with both [the
virus] and smoking.” She thought that, although the 1998 study
examined cigarette smoking rather than exposure to smoke while
fighting fires, it was nonetheless relevant because “cigarette
smoking and carcinogen exposures in fire, soot, and smoke have
some carcinogens in common.”
4
¶9 The firefighter’s treating doctor, Dr. Sander Orent,
corroborated Dr. Mayer’s opinions. He described the firefighter’s
cancer as a “multifactorial disease” that was
a result of not just the exposure to carcinogens
or the presence of [the virus]. It is a product of
the fact that the necessary soil for cancer is
the [virus] and the carcinogen. Something has
to make the seed grow. The [virus] is sitting
there doing nothing until the carcinogen comes
along and suppresses the immune system to
the point where the malignancy develops.
We know that there are multiple causes of
immunosuppression in firefighters.
[The firefighter] has been exposed to
uncounted amounts of toxins in the course
and scope of his job. . . . [T]he preponderance
of the evidence, in my view, is overwhelming
that his exposures to carcinogens in the
course and scope of his work are far more
important than any other factor in activating
that [virus] that was there.
He added that the firefighter had been “absolutely” exposed to the
triggering carcinogens “on the job.”
¶ 10 Dr. Bell, who the reader will recall was one of the City’s
experts, rejected Dr. Orent’s assessment. Dr. Bell observed that
“there’s simply no data, whatsoever, specifically with regard to [the
virus] and occupational smoke exposure.” Because the majority of
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virus-related cancers occur in nonsmokers, Dr. Bell disagreed that
smoking is a necessary catalyst for the disease’s development. He
instead concluded that “[i]t’s not necessary to have a significant
smoking history to . . . develop [virus]-related head and neck
cancer.” He reiterated that, without the virus, the firefighter “would
not have had this particular [virus]-related cancer.” But he
conceded that he could not dispute “the fact that smoking may or
may not increase the risk of developing [the viral] infection and
[virus]-related cancer.” He did not know “anything about
firefighting.”
¶ 11 Based on this evidence, the judge decided that the firefighter’s
cancer was compensable and awarded him benefits. The judge
thought that Dr. Mayer’s testimony that it had been “the
combination of [the virus] and [the firefighter’s] exposure to known
carcinogens that [had] cause[d him] to contract cancer” was more
persuasive than the contrary testimony of Drs. Bell and Jacobs.
¶ 12 The judge agreed that the firefighter’s cancer was “related to
the . . . virus.” But he observed that “what is less clear, is the
relationship between [the firefighter’s] exposure to carcinogens at
work and the development of the cancer in question.” Given this
6
uncertainty, the judge concluded that the City had failed to show
“that it [was] more likely than not that [the firefighter’s] employment
did not cause [his] particular cancer.”
¶ 13 The panel affirmed. It held that it would not substitute its
judgment for the judge’s. It also determined that it was bound by
the judge’s findings and conclusions because substantial evidence
supported them.
¶ 14 The panel rejected the City’s argument that, by adopting Dr.
Mayer’s and Dr. Orent’s “multifactorial” or “combination” theory of
risk factors causing cancer, the judge had misapprehended the trio
of supreme court cases. (The panel noted that nothing in section
209 or in the trio of supreme court cases required an administrative
law judge to reject a multifactorial cancer cause.) By doing so, the
City continued, the judge had made it impossible for any employer
to overcome the section 209 presumption because most cancers are
not caused by a single carcinogen or exposure.
II. The City’s Contentions
¶ 15 The City contends that it proved that it was more likely that
the virus had caused the firefighter’s cancer than other, more
attenuated, risks. As a result, it carried its burden “by more than a
7
preponderance of the evidence.” It submits that, by accepting the
“multifactorial” or “combination” of causes advanced by Drs. Mayer
and Orent, the judge misinterpreted the trio of supreme court cases
that had analyzed section 209:
 City of Littleton v. Industrial Claim Appeals Office, 2016
CO 25;
 Industrial Claim Appeals Office v. Town of Castle Rock,
2016 CO 26; and
 City of Englewood v. Harrell, 2016 CO 27.
¶ 16 According to the City, the trio of cases “requires”
administrative law judges to “weigh and rank the risk factors to
determine whether the employer showed by a preponderance of the
evidence that a nonoccupational risk factor was the greater or
higher risk factor in the firefighter’s cancer.” The judge and the
panel therefore committed reversible error, the City continues,
when they rested their determination that the firefighter’s cancer
was compensable on a finding that the cause of the firefighter’s
cancer was “multifactorial.” The City adds that, by crediting a
multifactorial cause for cancer, the panel and the judge effectively
rendered the section 209 presumption irrebuttable because most, if
8
not all, cancers have multiple causal risk factors. We disagree with
all the City’s contentions.
III. Section 209
¶ 17 Section 209 states:
(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 City concedes that the firefighter’s cancer was subject to the
section 209 presumption.
9
IV. Governing Law
¶ 18 In 2016, the Colorado Supreme Court weighed in on the
burden that section 209 places on employers to overcome the
presumption.
[W]e conclude that an employer can meet its
burden under section [209] to show that a
firefighter’s condition or impairment “did not
occur on the job” by establishing, by a
preponderance of the medical evidence, either:
(1) that a firefighter’s known or typical
occupational exposures are not capable of
causing the type of cancer at issue; or (2) that
the firefighter’s employment did not cause the
firefighter’s particular cancer where, for
example, the claimant firefighter was not
exposed to the substance or substances that
are known to cause the firefighter’s condition
or impairment, or the medical evidence renders
it more probable that the cause of the claimant’s
condition or impairment was not job-related.
City of Littleton, ¶ 49 (emphasis added).
¶ 19 In Town of Castle Rock, the supreme court further explained
that an employer can meet its burden of overcoming the statutory
presumption by introducing “risk factor” evidence showing that a
firefighter’s cancer more likely arose from a nonoccupational cause.
The court added that
an employer can seek to meet its burden under
section [209] to show a firefighter’s cancer “did
10
not occur on the job” by presenting
particularized risk-factor evidence indicating
that it is more probable that the claimant
firefighter’s cancer arose from some source
other than the firefighter’s employment. To
meet its burden of proof, the employer is not
required to prove a specific alternate cause of
the firefighter’s cancer. Rather, the employer
need only establish, by a preponderance of the
medical evidence, that the firefighter’s
employment did not cause the firefighter’s
cancer because the firefighter’s particular risk
factors render it more probable that the
firefighter’s cancer arose from a source outside
the workplace.
Town of Castle Rock, ¶ 17.
¶ 20 But such evidence is not dispositive. Whether an employer
has met this burden remains a question of fact for an
administrative law judge to decide. Because the judge is the “sole
arbiter of conflicting medical evidence . . . [the judge’s] . . . factual
findings are binding on appeal if they are supported by substantial
evidence or plausible inferences from the record.” City of Littleton, ¶
51.
¶ 21 Harrell returned a case to an administrative law judge “for
reconsideration in light of . . . City of Littleton and Town of Castle
Rock.” Harrell, ¶ 4.
11
V. Ranking the Risk Factors
¶ 22 The City’s contention rests on the premise that the virus was
the primary cause of the firefighter’s cancer and that any other
causes or risk factors were remote in comparison. The City
maintains that, if the judge had properly applied the standards set
out in City of Littleton and Town of Castle Rock, he would have
concluded that it had overcome the section 209 presumption
because the virus’s role in causing the firefighter’s cancer
outweighed any other risks. It urges us to eschew “multifactorial”
risks or “combination” causes in favor of a declaration that
administrative law judges must find the one cause or risk that
outweighs all the others. But, because City of Littleton and Town of
Castle Rock cede discretion to administrative law judges to weigh
the potential causes and risks, we disagree that the section 209
presumption is automatically overcome simply by identifying a
significant nonoccupational cancer cause.
A. The Judge Did Not Misapply the Law
¶ 23 Despite the City’s insistence that the supreme court has
mandated administrative law judges to rank firefighters’ cancer
risks, the trio of supreme court cases does not express such a
12
mandate. And the trio does not preclude consideration of
multifactorial causes of cancer. The City has not pointed us to any
language in City of Littleton, Town of Castle Rock, or Harrell that
requires administrative law judges to rank risks or causes, and we
have not found any in our reading of those cases.
¶ 24 Rather, each case emphasized that an employer “can” meet its
burden of overcoming the presumption by establishing the
prevalence of non-work-related risk factors. See City of Littleton,
¶ 49; Town of Castle Rock, ¶ 17; Harrell, ¶ 2. But the trio of cases
does not say that an employer will meet its burden by establishing
a nonoccupational risk; the trio does not assure employers that
they will overcome the section 209 presumption by showing that
nonoccupational risk factors played a prominent role in the cancer’s
development; and the trio does not state that, once employers
introduce such evidence, they will automatically rebut the section
209 presumption as a matter of law. In other words, the supreme
court opened an avenue for employers to follow, but the court did
not guarantee them that the avenue would automatically take them
to their desired destination of rebutting the section 209
presumption.
13
¶ 25 The City’s advocacy for a requirement that administrative law
judges rank risks or causes ignores a critical standard that the trio
of cases announced: the determination of whether an employer has
met its burden remains within the fact finder’s discretion. Indeed,
City of Littleton reversed a division of this court because the division
“erroneously failed to defer to the [administrative law judge’s]
findings of fact, which are supported by substantial evidence in the
record.” City of Littleton, ¶ 64. Town of Castle Rock did not simply
set aside an order that had not considered risk-based evidence, and
it did not hold that the risk-based evidence that the employer had
offered had overcome the presumption. Instead, the supreme court
remanded the case so that the administrative law judge could give
the evidence due consideration. Town of Castle Rock, ¶ 27.
¶ 26 To hold — as the City urges — that administrative law judges
must rank a firefighter’s various cancer risks would create the
following rule: an employer overcomes the presumption whenever it
presents evidence that any nonoccupational cause outweighs the
cancer risks posed by firefighting. Such a rule would erect a nearly
insurmountable barrier that a cancer-stricken firefighter could only
vault by establishing that firefighting exposures outweighed all
14
other potential cancer risks. By doing so, the rule would undercut
what the legislature wanted to do by creating the section 209
presumption in the first place. In other words, the City’s
interpretation would tip the scale too far in favor of employers.
¶ 27 Such a rule would also contravene the supreme court’s
mandate that we “defer to the [administrative law judge’s] findings
of fact” when those findings “are supported by substantial evidence
in the record.” City of Littleton, ¶ 64. Accepting the City’s proposed
rule would therefore deprive administrative law judges of the
discretion that the supreme court has described, which allows them
to consider and to weigh the evidence offered by both sides.
Accordingly, we conclude that City of Littleton, Town of Castle Rock,
and Harrell did not require the judge to rank the firefighter’s various
occupational and nonoccupational cancer risks.
B. Substantial Evidence Supported the Judge’s Findings
¶ 28 To be sure, the judge could have weighed the evidence in the
City’s favor; but, contrary to the City’s position, the evidence did not
mandate an outcome in its favor. Drs. Mayer and Orent testified
that the firefighter’s cancer likely had “multifactorial” causes and a
15
combination of risk factors, amply supporting the judge’s finding of
compensability.
¶ 29 The supreme court gave the judge the authority to determine
whether the City had overcome the section 209 presumption. City
of Littleton, ¶ 51. We are therefore bound by the judge’s factual
findings if they are supported by substantial evidence in the record.
Id. at ¶¶ 51-52. We conclude, for the following reasons, that they
are.
¶ 30 To begin, once the judge admitted the doctors’ testimony and
the rest of the evidence, it was up to him to decide what weight to
give all of the evidence. Id.
¶ 31 Dr. Orent discussed the role fighting fires likely played in
“activating” the firefighter’s cancer-causing virus. Dr. Orent
described it as “the trigger that allowed” the virus to become
cancerous. He emphasized that the firefighter’s lack of other risk
factors for tongue cancer — he was a nonsmoker; he had not
abused marijuana or drugs; he had been monogamous — meant
that the “preponderance of his exposure virtually had to be fire.”
¶ 32 Dr. Mayer corroborated Dr. Orent’s view when she testified
“that it was the combination of [the virus] and the carcinogens . . .
16
that significantly elevated his risk of developing cancer.” She
backed up her opinion with a study that found “a synergistically-
increased risk of 8.5-fold in those with both [the virus] and
smoking.”
¶ 33 Although the City’s medical expert, Dr. Bell, thought that the
virus, and not any carcinogens to which the firefighter had been
exposed on the job, had caused his cancer, Dr. Bell did not entirely
dispute Dr. Mayer’s synergistic theory. Instead, he called it a
“grayer area,” and he noted that “older data” existed that suggested
“there may be an association” between the virus and firefighting
exposures.
¶ 34 This evidence sufficiently supports the judge’s finding and
conclusion that the City had failed to show that it was “more likely
than not that [the firefighter’s] employment [had] not cause[d] [his]
particular cancer.” We, like the panel, are therefore bound by the
judge’s decision. City of Littleton, ¶¶ 51-52.
¶ 35 In reaching his decision, the judge found that Dr. Mayer’s
opinions were more persuasive than those of the City’s medical
experts. “We must . . . defer to the [administrative law judge’s]
credibility determinations and resolution of conflicts in the
17
evidence, including the medical evidence.” City of Loveland Police
Dep’t v. Indus. Claim Appeals Office, 141 P.3d 943, 950 (Colo. App.
2006). As in all workers’ compensation cases, the weight to be
given the experts’ testimony “is a matter exclusively within the
discretion of the [administrative law judge] as fact-finder.” Rockwell
Int’l v. Turnbull, 802 P.2d 1182, 1183 (Colo. App. 1990). “Further,
we may not interfere with the [administrative law judge’s] credibility
determinations except in the extreme circumstance where the
evidence credited is so overwhelmingly rebutted by hard, certain
evidence that the [administrative law judge] would err as a matter of
law in crediting it.” Arenas v. Indus. Claim Appeals Office, 8 P.3d
558, 561 (Colo. App. 2000).
¶ 36 We conclude that the judge acted well within his discretion by
crediting Dr. Mayer’s opinions over the contrary opinions of Drs.
Bell and Jacobs. Rockwell Int’l, 802 P.2d at 1183. In the absence
of overwhelming evidence rebutting Dr. Mayer’s and Dr. Orent’s
opinions, we may not disturb the judge’s determination that Drs.
Mayer and Orent were more credible and more persuasive than Drs.
Bell and Jacobs. See Youngs v. Indus. Claim Appeals Office, 2012
18
COA 85M, ¶ 46; Arenas, 8 P.3d at 561; Rockwell Int’l, 802 P.2d at
1183.
¶ 37 We last conclude that, because substantial evidence supported
the judge’s factual finding that fighting fires played a causal role in
the firefighter’s cancer, the panel did not err when it affirmed the
judge’s decision. See City of Littleton, ¶¶ 51-52.
¶ 38 The order is affirmed.
JUDGE TAUBMAN and JUDGE WELLING concur.
19