City of Boulder v. ICAO

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

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 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

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 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.

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 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.

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 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.

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 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.

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