Town receives 2nd chance to overcome presumption of compensability
Town of Castle Rock v. Industrial Claim Appeals Office of the State of Colorado, No. 12CA2190 (Colo. Ct. App. 07/03/13).
The Colorado Court of Appeals sent a claim back to the Industrial Claim Appeals Office for a determination of whether a town overcame the presumption of compensability for a firefighter's cancer.
What it means: In Colorado, an employer can overcome the statutory presumption of compensability with specific risk evidence demonstrating that a particular firefighter's cancer was probably caused by a source outside work.
A firefighter for a town was diagnosed with malignant melanoma on his right outer calf. He underwent three surgeries to remove the growth. He sought medical benefits and temporary total disability benefits. The parties agreed that the presumption of compensability applied to the firefighter. The town asserted that it was not required to prove the exact cause of the cancer to overcome the presumption. The Colorado Court of Appeals held that the town could overcome the presumption of compensability with evidence that the firefighter's cancer more likely than not arose outside of the workplace. The court sent the case back to the Industrial Claim Appeals Office for a determination of whether the town met the standard.
The court found that the town introduced evidence of the firefighter's specific exposures and risk of developing melanoma. The town's medical expert opined that the firefighter's risk factors, including sun exposure and the presence of moles on his skin, placed him at a greater risk of developing melanoma. The firefighter's medical expert also supported a view that firefighting was a lesser melanoma risk to the firefighter than his other known exposures and risks.
The court explained that the legislature did not intend to impose strict liability on employers but that the presumption of compensability could be overcome by demonstrating that another source was more likely the cause of a firefighter's cancer. The court found persuasive the views of courts in other jurisdictions holding that evidence showing an alternative probable cause of the illness can overcome the presumption of compensability.
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October 7, 2013
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