Colorado Court Rules on Cancer Presumption for Denver Firefighter

The Colorado Court of Appeals handed down an important cancer presumption decision last week involving a Denver firefighter who was diagnosed with leukemia. Firefighter Russell Andrews was diagnosed with chronicmyelogenous leukemia (CML) in 2010.

The city sought to deny him workers compensation coverage because he had not been employed by the Denver Fire Department as a firefighter for five years. The issue in the case was whether a firefighter with just under five years of employment could qualify under state law for the firefighter cancer presumption found in § 8-41-209 by applying time spent in the fire academy as a recruit and/or prior service as a volunteer for another department. Under § 8-41-209 a firefighter “who has completed five or more years of employment as a firefighter” who develops cancer is entitled to a rebuttable presumption that the cancer is job related.

The facts as explained by the court are as follows:

[Russell Andrews] was hired by Denver on October 1, 2004. Prior to taking his oath of office as a firefighter for Denver in February 2005, claimant completed a seventeen-week course at the Rocky Mountain Fire Academy as a probationary firefighter for Denver. Claimant also garnered four years’ experience as a volunteer firefighter and EMT for the Elbert Fire Protection District before entering the fire academy.

In October 2009, claimant experienced flu-like symptoms, which were attributed to a virus. Although the flu-like symptoms dissipated, claimant continued to feel tired and weak, and, in the following months, lost about twenty pounds. After an episode of acute shoulder and abdominal pain in late January 2010, claimant sought treatment in the emergency room.

On February 12, 2010, claimant was diagnosed with chronicmyelogenous leukemia (CML). He filed a claim for workers’ compensation benefits under section 8-41-209 for his cancer treatments, invoking the statute’s presumption that certain cancers contracted by firefighters with five or more years of service are compensable occupational diseases. Relying on the testimony of Denver’s medical expert, the ALJ [worker’s compensation court – administrative law judge] found the onset of claimant’s CML occurred in November 2009.

In true Scrooge-like fashion [my editorializing]:

Denver argued that claimant did not meet the statute’s mandate of five-years of “employment as a firefighter” to trigger the presumption. The ALJ disagreed, however, finding that claimant’s four years as a firefighter in Elbert County and his time spent at the fire academy could be included in the length-of-employment calculation, giving claimant more than the required five years’ service. The Panel affirmed, and this appeal followed.

¶8     The firefighter cancer presumption statute provides:

(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.

§ 8-41-209 The statute does not indicate what service qualifies when calculating the five-year period nor does it state how the service should be calculated. Denver urges us to read “employment” narrowly so as to exclude time not in service and time spent in training, and to permit home rule municipalities to define the term themselves. For the reasons set forth below, we decline to do so.

In upholding the ruling of the workers compensation court, the Court of Appeals looked at Colorado case law on statutory interpretation, and rejected the city’s argument that it should be free to define the term “employment” itself. The court also refused to adopt the reasoning of a California case that denied “enhanced benefits” to recruit firefighters because they were not full-fledged firefighters. The court concluded:

Accordingly, we hold that the statute’s requirement that a claimant demonstrate “five or more years of employment as a firefighter” before the statutory presumption of compensability applies, runs from the time an individual commences service as a volunteer firefighter or commences training at the fire academy. Including this service when calculating claimant’s length of employment, results in more than five years of “employment as a firefighter” under section 8-41-209(1). Thus, the Panel correctly held that claimant was entitled to the statutory presumption of compensability for his CML.

Here is a copy of the decision. Denver v Industrial Commission

Thanks to Sherri from WorkCompCentral for the headsup on this one!!!!

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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