Colorado § 8-41-209 - Coverage for occupational diseases contracted by firefighters.

§ 8-41-209. Coverage for occupational diseases contracted by firefighters.

(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.

(3) Repealed.

(4) An employer who participates in the voluntary firefighter cancer benefits program created in part 4 of article 5 of title 29 is not subject to this section unless the employer ends participation in that program.

Source: L. 2007: Entire section added, p. 962, § 1, effective May 17. L. 2017: (4) added, (SB 17-214), ch. 187, p. 684, § 2, effective May 3.

Editor's note: Subsection (3)(b) provided for the repeal of subsection (3), effective March 1, 2009. (See L. 2007, p. 962.)

ANNOTATION

An employer can overcome the presumption of compensability with evidence that a claimant's injury more likely than not arose from a source outside the workplace. An employer need not establish a specific non-work-related cause of claimant's cancer in order to overcome the presumption; rather, an employer may overcome the presumption by establishing that the risk of cancer from other sources outweighs the risk created by firefighting. Castle Rock v. Indus. Claim Appeals Office, 2013 COA 109, 373 P.3d 609, aff 'd, 2016 CO 26, 370 P.3d 151.

The presumption of compensability is not automatically overcome simply by identifying a significant nonoccupational cancer cause. An employer can meet its burden of overcoming the presumption by establishing the prevalence of non-work-related risk factors. But City of Littleton v. Indus. Claim Appeals Office, 2016 CO 25, 370 P.3d 157, Indus. Claim Appeals Office v. Town of Castle Rock, 2016 CO 26, 370 P.3d 151, and City of Englewood v. Harrell, 2016 CO 27, 370 P.3d 149, do not say that an employer will meet its burden by establishing a nonoccupational risk; the opinions do not assure employers that they will overcome the presumption by showing that nonoccupational risk factors played a prominent role in the cancer's development; and they do not state that, once employers introduce such evidence, they will automatically rebut the presumption as a matter of law. Nor do the opinions require the judge to rank the firefighter's various occupational and nonoccupational cancer risks. City of Boulder v. Indus. Claim Appeals Office, 2018 COA 93, 431 P.3d 674.

An employer can meet its burden to show that a firefighter's condition or impairment did not occur on the job by establishing, by a preponderance of the medical evidence, a lack of either general or specific causation, that is, 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 v. Indus. Claim Appeals Office, 2016 CO 25, 370 P.3d 157.

The administrative law judge is not required to rank risk factors for cancer in order to make a determination pursuant to this section. City of Boulder v. Indus. Claim Appeals Office, 2018 COA 93, 431 P.3d 674.

Claimant's time spent as a volunteer firefighter and training at the fire academy counted toward the five or more years of firefighting employment required to trigger the statutory presumption that claimant's cancer was a result of his employment as a firefighter, thus entitling claimant to workers' compensation coverage for an occupational disease under the Workers' Compensation Act of Colorado. City & County of Denver v. Indus. Claim Appeals Office, 2014 COA 62, 328 P.3d 313.