Industrial Claim Appeals Office v. Town of Castle Rock & Cirsa

2016 CO 26, 370 P.3d 151, 2016 WL 1757472
CourtSupreme Court of Colorado
DecidedMay 2, 2016
DocketSupreme Court Case No. 13SC560
StatusPublished
Cited by2 cases

This text of 2016 CO 26 (Industrial Claim Appeals Office v. Town of Castle Rock & Cirsa) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Industrial Claim Appeals Office v. Town of Castle Rock & Cirsa, 2016 CO 26, 370 P.3d 151, 2016 WL 1757472 (Colo. 2016).

Opinion

JUSTICE MARQUEZ

delivered the Opinion of the Court.

T1 Castle Rock firefighter Mike Zukowski was diagnosed with melanoma, a type of skin cancer. He had three excision surgeries to remove the melanoma and was then released to return to work on full duty. He sought both medical benefits and temporary total disability benefits under the "firefighter statute," § 8-41-209, C.R.S. (2015), of the Workers' Compensation Act of Colorado, asserting that his melanoma qualified as a compensable occupational disease. At issue here is whether Zukowski's employer, the Town of Castle Rock, and Castle Rock's insurer, the Colorado Intergovernmental Risk Sharing Agency (collectively, "Castle Rock"), may seek to overcome a statutory presumption in section 8-41-209(2)(a) that Zukowski's condition resulted from his employment as a firefighter by presenting risk-factor evidence indicating that Zukowski's risk of melanoma from other sources is greater than his risk of melanoma from firefighting.

T2 The firefighter statute applies to firefighters who have completed five or more years of employment as a firefighter, § 8-41-209(1). Section 8-41-209(1) provides that the death, disability, or health impairment of such a firefighter "caused by cancer of the brain, skin, digestive system, hematological system, or genitourinary system" shall be considered an "occupational disease" (thus entitling the firefighter to benefits under the Workers' Compensation Act) if the cancer "result[ed] from his or her employment as a firefighter." Section 8-41-209(2)(a) then creates a statutory presumption that the firefighter's condition or health impairment caused by a listed type of cancer "result[ed] from [the] 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 health impairment preexisting his or her employment as a firefighter, Under section 8-41-209(2)(b), however, the firefighter's condition or impairment "[slhall not be deemed to result from the firefighter's employment if the firefight er's employer or insurer shows by a preponderance of the medical evidence that such condition or impairment did not occur on the job." The question raised in this case is whether, under section 8-41-209, a firefight er's employer or insurer can attempt to meet its burden to show that the firefighter's condition "did not oceur on the job" by presenting risk-factor evidence indicating that the firefighter's risk of cancer from other, non-job-related sources is greater than his risk of cancer from firefighting.

18 In City of Littleton v. Industrial Claim Appeals Office, 2016 CO 25, 370 P.3d 157, a companion decision issued today, we held that section 8-41-209(2) places the burden of persuasion with the employer to show, by a preponderance of the medical evidence, that the firefighter's condition or health impairment caused by a listed cancer "did not occur on the job." City of Littleton, 18. We further held that an employer can meet its burden to show a firefighter's cancer "did not occur on the job" by establishing the absence of specific causation. Id. In this case, the employer sought to establish the absence of specific causation by presenting evidence indicating that Zukowski's particular risk of developing melanoma from other, non-job-related sources outweighed his risk of developing melanoma from his employment as a firefighter. We hold that an em[153]*153ployer may rely on such evidence in seeking to overcome the presumption in section 8-41-209(2). 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. Accordingly, we affirm the judgment of the court of appeals and remand this case with directions to return the matter to the administrative law judge ("ALJ") for reconsideration consistent with this opinion and our decision in City of Littleton.

I. Facts and Procedural History

{4 Petitioner Mike Zukowski was born in 1972. .He grew up in Albuquerque, New Mexico, and moved to Colorado in 2000. While he was growing up, he was involved with Cub Seouts and Boy Scouts, and he played soccer and participated in gymnastics and track and field. He had moles and freckles, but no known family history of melanoma.

15 Zukowski began employment as a firefighter with the Town of Castle Rock in 2000. He worked as an engineer and paramedic. Before beginning his employment, Zukowski underwent a physical éxamination by his personal physician, noting 'a concern with moles at that time. In addition to working as a firefighter, Zukowski also worked part-time doing construction, often outdoors. He éven-tually opened his own business : building decks and furniture and remodeling buildings and basements. When not working, he spent time outside running, hiking, and cycling.

T6 In 2002, Zukowski had five moles removed and biopsied. In 2008, he developed a mole on his right calf. In 2011, Zukowski was diagnosed" with invasive' melanomas, a type of skin cancer, on his right outer calf, at the same site of the mole that developed in 2008, He had three excision surgeries to remove the mole, and was released to return to work on full duty, Zukowski sought medical benefits and temporary total disability benefits under section 8-41-209 of the Workers' Compensation Act, for the periods of time he received treatment and was recovering from his melanoma.

17 In June 2012, the ALJ granted Zukow-ski's claim for workers' compensation benefits. The parties stipulated that. Zukowski was entitled to the presumption in section 8-41-209(2)(a) that his melanoma "result[ed] from [his] employment." Thus, the only issue at the hearing was whether Castle Rock met its burden under section 8-41-209(2)(b) to overcome that presumption by a preponderance of the medical evidence that Zukow-ski's melanoma "did not occur on the job."

18 Castle Rock did not challenge the existence of a general causal link between firefighting and melanoma,. Instead, Castle Rock: sought to. disprove specific causation by presenting evidence of alternate causation. Castle Rock's expert witness, Dr. William Milliken, a physician with expertise in occupational medicine and the causation of industrially related cancers, testified that Zukowski's known risk factors-specifically, Zukowski's history of sun exposure and the presence of dysplastic1 moles on his body-placed him at a much greater risk of developing melanoma than did his firefighting.

T9 The ALJ held that Castle Rock's burden under section 841-209 is "to prove by medical evidence that a claimant's cancer comes from a specific cause not occurring on the job."2 The ALJ ruled that Castle Rock's "[dliscussion and analysis of various risk factors outside of firefighting exposure is insufficient to sustain [Castle Rock's] burden of proof where those risk factors cannot be equated with a cause in fact of [Zukowski's] melanoma." Accordingly, the ALJ found that Castle Rock "failed to prove by a pre[154]*154ponderance of the medical evidence that [Zu-kowski's] melanoma did not occur on the Job 39

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Bluebook (online)
2016 CO 26, 370 P.3d 151, 2016 WL 1757472, Counsel Stack Legal Research, https://law.counselstack.com/opinion/industrial-claim-appeals-office-v-town-of-castle-rock-cirsa-colo-2016.