Lee & Brown attended the 25th Annual PWC Golf Tournament held at Wellshire Golf Course on September 14th. Members Katherine Lee and Joshua Brown played on a team as well as Of Counsel Frank Cavanaugh and Bill Sterck. The Firm sponsored the Hole-in-One competition, which included a chance to win a $10,000 prize. While there was no hole-in-one, there was an Elway’s gift card giveaway, along with golf balls and tees. Everyone enjoyed the seasonably warm weather and refreshing beverages. Congratulations to all the players and to the PWC for putting on a great event.
Member Joshua Brown successfully defended against a National Labor Relations Board (NLRB) charge in Rood v. Colorado Professional Security Services, LLC. The charging party alleged that he and his spouse were retaliated against in violation of Section 8(a)(1) of the National Labor Relations Act (“the Act”). The charging party alleged that he was named as a defendant in a lawsuit filed by the employer in retaliation for having initiated a wage and hour lawsuit against the employer. The employer filed the lawsuit against the charging party because of harassing conduct and a social media video. The NLRB found that there was no retaliatory motive.
Member Joshua Brown also successfully defended against a National Labor Relations Board (NLRB) charge in David v. Colorado Professional Security Services, LLC. The charging party alleged that he was disciplined and discharged in retaliation for joining a wage and hour lawsuit against the employer. Specifically, the charging party posted a video on social media criticizing the employer. The NLRB found that in the video, the charging party made several unprotected comments about his supervisor and employer’s owner. The NLRB found that the employer discharged the charging party for the unprotected conduct and disciplinary history, rather than in retaliation for any protected concerted activity.
In Rodarte v. Walmart Associates, Inc. (d/b/a Sam’s Wholesale Club), Of Counsel M. Frances McCracken, successfully defended against Claimant’s attempt to obtain both post-MMI medical maintenance care (in the form of additional physical therapy) and conversion of her scheduled rating of permanent impairment to whole person. The Claimant sustained a compensable injury after a baking tray fell off a shelf and crushed her right long finger. The matter eventually proceeded through the DIME process. The DIME physician opined that no post-MMI maintenance care was appropriate. At hearing, Ms. McCracken elicited evidence that the Claimant attained no meaningful benefit from approximately 80 physical therapy sessions, alongside other treatment modalities. With respect to conversion, Ms. McCracken highlighted evidence to the Court revealing that the Claimant could only show pain extending beyond her hand into the whole person. Ms. McCracken emphasized that mere pain is not enough to substantiate conversion; instead, the Claimant was required to show functional impairment or disability into the whole person. The Claimant’s requests for both the post-MMI medical care and conversion of the impairment rating were denied and dismissed.
Associate Matt Boatwright successfully defended a fully contested claim in Foster v. United Parcel Service. The Claimant asserted that he suffered a knee injury while delivering packages, despite completing his route, without report of an injury or any incident. The ALJ found that the Respondents’ employer witness testified credibly that the Claimant did not report any work injury until being informed that he was terminated for insubordination. The employer witness also testified credibly that the Claimant did not appear to have a limp until after he was terminated. Respondents’ IME expert credibly opined that it was medically unlikely that the Claimant’s condition would have become worse while off work without an aggravating activity. The ALJ denied and dismissed the Claimant’s claim for compensation.
Associate Matt Boatwright also successfully defended against compensability in Floyd v. United Parcel Service. The Claimant claimed that he injured his shoulder while detaching a tractor trailer. While the Claimant admitted that he had previously injured the shoulder in a prior motor vehicle accident and had undergone some limited conservative treatment, he denied having any other prior issues with the shoulder. The medical evidence reflected that the Claimant had chronic shoulder issues, a preexisting motor vehicle accident injury, as well as more recent pain from his personal recreational activities. The Respondents’ medical expert testified credibly that the Claimant’s MRI findings reflected a degenerative rotator cuff tear, which was not likely the result of a single, acute incident. The ALJ favored the opinion of the Respondents’ medical expert over the Claimant’s testimony and denied and dismissed the claim.
Take this Job and Shove It: Modified job offers and initial entitlement to TTD benefits: In Valle v. Precision Drilling, W.C. No. 5-050-714-01 (January 8, 2018), Respondents sought review of the ALJ’s Order requiring them to pay TTD benefits. Claimant sustained an admitted injury in his position as a floor hand. Claimant was put on temporary work restrictions and offered a modified job duty prior to missing any work. He declined to accept the modified job duty offer and sought TTD benefits. Respondents declined to pay TTD benefits, relying on C.R.S. §8-42-105(3)(d)(1), which states that refusal to accept a modified job duty offer may serve as a basis for terminating TTD benefits. The ICAP ruled that Respondents incorrectly relied on C.R.S. §8-42-105(3)(d)(1) because Claimant was neither entitled to nor receiving TTD benefits when the modified job duty offer was made. ICAP did state that the refusal to accept the modified job duty offer would be a proper factor to consider in determining Claimant’s initial entitlement to temporary disability benefits but the applicable statute would be C.R.S. §8-42-103(1), which establishes a Claimant’s initial entitlement to temporary benefits and not the termination statute, C.R.S. §8-42-105(3)(d)(1).
Moral of the Story: Refusal to accept a modified job duty offer may be considered in determining initial entitlement to TTD benefits if refusal of the job offer is the cause of the Claimant’s wage loss pursuant to C.R.S. §8-42-103(1).
Take this Job and Shove It Part 2: More fun with modified job offers and TTD benefits: In Willhoit v. Maggie’s Farm, W.C. No. 5-054-125 (March 14, 2018), Claimant sought review of an ALJ’s Order denying TTD benefits. Claimant sustained a work-related injury in his position as a Cultivation Technician for a marijuana farm and was placed on temporary work restrictions. He then received a modified job duty offer, which was approved by his ATP, to trim buds in the cultivation room. Claimant refused the modified job offer on the basis that he believed it violated his work restrictions, due to treatment recommendations by his ATP to rest, apply ice, compress, stretch, and elevate his knee. Respondents denied Claimant’s request for TTD benefits due to his failure to accept the modified job duty offer. ICAP found that Claimant’s refusal of the modified job offer was not reasonable because his ATP was aware of his treatment recommendations and physical limitations when he approved the Claimant’s modified job offer.
Moral of the Story: An ATP’s treatment recommendations are not the same as work restrictions for purposes of a modified job duty offer.
He Said. She Said. Challenging an ALJ’s factual determinations with conflicting medical opinions: In a Colorado Court of Appeals decision, Old Dominion Freight Line, Inc. v. ICAO, 17CA1959 (July 19, 2018)(nsfp), Respondents sought review of a final ICAO Order upholding an award of PTD benefits. The ATP found Claimant sustained brain, central nervous system, and psychiatric injuries in his work-related motor vehicle accident and was permanently and totally disabled. The first DIME physician found Claimant had reached MMI for the cervical, shoulder, and spine injuries but required additional treatment for the brain injury. Respondents sought a second DIME after substantial treatment had been rendered. The second DIME physician disagreed that Claimant suffered any permanent impairment from a brain injury, an injury to the central nervous system, or psychiatric issues. Claimant sought to overcome the DIME’s findings and the ALJ agreed, finding that Claimant was permanently and totally disabled. ICAO held the ALJ relied on several opinions of treating physicians in reaching his determination that Claimant sustained a traumatic brain injury that caused profound psychological dysfunction. While ICAO acknowledged the difference in medical opinions, it held the ALJ’s factual determinations were binding – even when there was conflicting evidence. ICAO held substantial evidence supported the ALJ’s findings and thus the Panel’s decision affirming the award of benefits should be sustained.
Moral of the Story: An ALJ’s factual determinations regarding the DIME’s findings and PTD benefits are difficult to overcome in claims with conflicting evidentiary interpretations because it is the ALJ’s discretion to determine credibility of witnesses with differing opinions.
Quantity > Quality: Substantial Employment to determine proper jurisdiction: In Turner v. ICAO, 17CA1647 (July 19, 2018) (nsfp), Claimant sought review of the dismissal of his claim on jurisdictional grounds. Claimant was a resident of British Columbia and a Canadian citizen. Claimant was hired as a truck driver by a Canadian based company to haul goods throughout Canada and the western United States. While making a lumber delivery in Henderson, Colorado, Claimant slipped on ice and sustained injuries to his hips, shoulders, and neck. At hearing, the ALJ noted Claimant was only entitled to benefits under Colorado law if he established that a substantial portion of his employment was performed in Colorado. Because 90% to 95% of Claimant’s working hours were outside of Colorado, the ALJ determined he lacked jurisdiction to hear the claim. Claimant alleged that his nine trips to various locations throughout Colorado over an eight-month period evidenced routine and regular work in the state. Claimant advocated a qualitative over quantitative analysis should be used in determining whether Colorado was the proper jurisdiction. ICAO noted that a substantial portion of the employee’s work must be performed in Colorado and that the quantitative analysis used by the ALJ was the appropriate standard. ICAO affirmed the Panel’s Order that substantial evidence supported the ALJ’s determination that Claimant’s time in Colorado was insubstantial and did not meet the jurisdictional minimums.
Moral of the Story: Jurisdictional analysis for substantial employment is quantitative, not qualitative, in nature.
Exposure to blood-borne pathogens presents unique risks in the work place. Workers in health care or in-resident home care are, on a daily basis, subject to the potential of disease transmitted by bodily fluids. These diseases range from methicillin-resistant staphylococcus aureus (MRSA), spinal meningitis, tuberculosis, hepatitis, to HIV. Given the ubiquitous daily potential for exposures to workers across the board, including direct patient care workers to maintenance workers to transport personnel, risk managers and adjusters need to understand the overlap with workers compensation and the Occupational Safety and Health Administration’s (“OSHA”) rules. Understanding exposure and needlestick law is critical to containing risks as well as protecting employees from life-altering danger. 
The OSHA rules pertaining to disease transmitted though bodily fluids are found on the public domain at: https://www.osha.gov/SLTC/bloodbornepathogens/gen_guidance.html. The federal regulations governing OSHA’s rules and role is found at 29 CFR 1910.1030. OSHA laws, since 2002, also conform to the federal Needlestick Safety and Prevention Act (NSPA) of 2000. Congress in large part delegated the enforcement of the NSPA to OSHA. In turn, OSHA rules require employers evaluate controlled safety programs to keep employees safe from potential exposures and to implement engineering controls to effectuate any respective safety plan. The NSPA requires that “Requires certain employers to: (1) review and update exposure control plans to reflect changes in technology that eliminate or reduce such exposure, and document their consideration and implementation of appropriate commercially available and effective safer medical devices for such purpose; (2) maintain a sharps injury log, noting the type and brand of device used, where the injury occurred, and an explanation of the incident (exempting employers who are not required to maintain specified OSHA logs); and (3) seek input on such engineering and work practice controls from the affected health care workers (exempting employers who are not required to establish exposure control plans).” The federal NSPA and OSHA law do not alter the scope of workers compensation liability insurance coverage or impose additional coverage requirements upon employers. However, OSHA regulations do require the employer of an exposed employee set up an immediate confidential medical evaluation. Under OSHA standards, the evaluation: “This evaluation and follow-up must be: made available at no cost to the worker and at a reasonable time and place; performed by or under the supervision of a licensed physician or other licensed healthcare professional; and provided according to the recommendations of the U.S. Public Health Service (USPHS) current at the time the procedures take place. In addition, laboratory tests must be conducted by an accredited laboratory and also must be at no cost to the worker. A worker who participates in post-exposure evaluation and follow-up may consent to have his or her blood drawn for determination of a baseline infection status but has the option to withhold consent for HIV testing at that time. In this instance, the employer must ensure that the worker’s blood sample is preserved for at least 90 days in case the worker changes his or her mind about HIV testing.” The employee has recourse under OSHA regardless of state workers compensation laws and coverage to have the employer pay for lab tests and blood analysis to determine the presence of blood-borne illnesses.
One interesting aspect of the OSHA regulations deals with the employer-employment relationship of a physician using a health care facility under a contract for staff privileges. Surgeons, for example, may have staff privileges at a hospital to perform surgeries they otherwise could not do in their office. According to OSHA’s interpretation of its own rules, “Under OSHA’s blood-borne pathogens compliance directive (OSHA Instruction CPL 02-02-069 [formerly CPL 2-2.69]) the status of the physician as an employer or employee is important to establish in order to determine the application of OSHA standards. According to the paragraph XI.D. in the directive, physicians “… may be cited if they create or control blood-borne pathogens hazards that expose employees at hospitals or other sites where they have staff privileges in accordance with the multi-employer worksite guidelines of CPL 02-00-124 [formerly CPL 2-0.124], Multi-Employer Citation Policy.” In terms of needlestick or exposure cases in both Colorado and Arizona, an employer/carrier should always assess the corresponding contracts (or independent contractor status) to determine whether a what (or whose) particular workers compensation insurance policy applies in these situations.
Arizona has passed specific legislation pertaining to exposure risks. Section 23-1043.04, A.R.S., specifically deals with MRSA, spinal meningitis, and tuberculous exposures. Mere exposure to a needlestick is not an automatic claim for compensation. The workers must first file a claim with the ICA. The statute then requires, to sustain a claim: (1) The employee’s regular course of employment involves handling of or exposure to methicillin-resistant staphylococcus aureus, spinal meningitis or tuberculosis; (2) Within thirty calendar days after a possible significant exposure that arises out of and in the course of employment, the employee reports in writing to the employer the details of the exposure. The employer shall notify its insurance carrier or claims processor of the report. Failure of the employer to notify the insurance carrier is not a defense to a claim by the employee; (3) For a claim involving methicillin-resistant staphylococcus aureus, the employee must be diagnosed with methicillin-resistant staphylococcus aureus within fifteen days after the employee reports pursuant to paragraph 2 of this subsection. (4) For a claim involving spinal meningitis, the employee is diagnosed with spinal meningitis within two to eighteen days of the possible significant exposure; (5) For a claim involving tuberculosis, the employee is diagnosed with tuberculosis within twelve weeks of the possible significant exposure.
What is also of interest for employers is that the respective Arizona statue contains protects the medical information of third parties. In the course of an exposure case, an employer may allege that a sexual partner or perhaps drug use caused the alleged condition. Under A.R.S. 23-1043.04(D) “a person alleged to be a source of a significant exposure shall not be compelled by subpoena or other court order to release confidential information relating to methicillin-resistant staphylococcus aureus, spinal meningitis or tuberculosis either by document or by oral testimony. Evidence of the alleged source’s methicillin-resistant staphylococcus aureus, spinal meningitis or tuberculosis status may be introduced by either party if the alleged source knowingly and willingly consents to the release of that information.” Proving an alternative source of the exposure may be challenging without court intervention.
The statutory provisions pertaining to HIV is found in section 23-1043.2, and the provisions pertaining to Hepatitis C is found in 23-1043.3. Each respective section has reporting requirements similar to 23-1043.3, and contain the same provision barring compelled blood tests of third parties. Additionally, an employee may file a notice with the Industrial Commission reporting a significant exposure to blood-borne illness. The worker must also file a separate claim, for which the employer/carrier may then respond by operation of a Notice of Claim Status.
Colorado does not have specific statutory provisions concerning blood-borne illness exposures. The Colorado exposure analysis is traditionally done in the general rubric of whether an event caused an injury in the course of employment, and that the injury arose out of employment. It is the claimant’s legal burden to prove a causal nexus with work. In other words, whether a needlestick caused an injury requiring medical treatment to cure or relieve the effects of the respective industrial injury. If you have a needle stick or blood-borne illness exposure issue, please contact an attorney at Lee and Brown of specific guidance on these complex issues.
 For example, see the story of one health care worker exposed to a needle stick. https://www.nursingworld.org/practice-policy/work-environment/health-safety/safe-needles/safe-needles-law/
 C.R.S. section 8-41-301
 See. e.g., Manzanares v. Quality Uniform Linen Supply & Liberty Mutual WC #4-268-197 (ICAO 1999)
Lee & Brown was proud to be a sponsor in the third annual charity ride and rally hosted by Sturgeon Electric, July 14, 2018. This great event was a benefit for Freedom Service Dogs of America, a non-profit organization that transforms shelter dogs into custom trained, life-changing assistance dogs for people in need. Thank you to everyone who supported, sponsored, and rode to raise over $30K for this important cause!Enjoy the video: https://www.youtube.com/watch?v=yaVBBY3r_ZA
Member Joseph Gren was successful in having a claim for an alleged shoulder and neck injury denied and dismissed in Washington v. United Parcel Service. Claimant alleged that he suffered an injury at his job lifting packages. Claimant claimed that his injury subsequently progressed to involvement of the neck, for which he sought surgery. Mr. Gren demonstrated to the Court that the Claimant’s account of how the alleged injury occurred was not consistent with the medical records. Respondents’ expert credibly testified that the Claimant’s job duties were not consistent with the mechanism of injury, and that the opinions of the treating providers made assumptions about the work duties that were not consistent with Claimant’s job function. Mr. Gren also elicited information at hearing that involved an undisclosed neck injury with ongoing treatment. The ALJ found that Claimant had failed to prove a compensable injury and denied the claim.
In Meza v. Bayou Well Services, Inc., Member Joseph Gren successfully defended against Claimant’s request to reopen his claim for a worsening of condition. Claimant sustained an admitted injury on September 6, 2013, when a large piece of equipment fell onto his back. Claimant underwent conservative care and was placed at MMI on March 27, 2014. Respondents filed a FAL on April 29, 2014. Claimant failed to object to the FAL and the claim was administratively closed. At hearing, Claimant alleged a change in his medical condition, relying on a report from his expert dated July 17, 2015. Mr. Gren presented evidence of diagnostic testing which revealed that there was no change in Claimant’s back since the MRI performed following the injury. Respondents’ expert credibly testified that Claimant lacked new objective findings on physical examination and that his condition had not changed since being placed at MMI in 2014. The ALJ credited the opinion of Respondents’ expert over that of the Claimant and Claimant’s expert. The ALJ found that Claimant did not meet his burden of proof for his Petition to Reopen. The Petition to Reopen was denied and dismissed.
Member Joseph Gren also successfully defended a full contest claim for an alleged foot injury in Wood v. United Parcel Service. Claimant alleged that he suffered an injury to his foot while entering his vehicle after making a delivery. Claimant reported the injury over a year later and was diagnosed with plantar fibromatosis. Mr. Gren demonstrated, through substantial medical records and expert testimony, that the condition was a naturally occurring condition. Respondents’ expert credibly testified that Claimant’s job duties did not aggravate Claimant’s naturally occurring condition. The ALJ found Respondents’ expert to be credible and that Claimant did not sustain an acute injury to his left foot on June 1, 2016. The ALJ agreed with Respondents’ expert that the current complaints were a natural and probable progression of his preexisting condition. The ALJ found that Claimant failed to prove a compensable injury and the claim was denied and dismissed.
Associate Matt Boatwright successfully challenged Claimant’s entitlement to ongoing temporary disability benefits in Voorhees v. United Parcel Service. Claimant had been collecting temporary disability benefits for the duration of the claim and was not at MMI. Respondents conducted surveillance, which reflected that Claimant was simultaneously engaged in non-related outdoor activities while collecting disability. Claimant sustained injuries while riding a dirt bike, after which Respondents asserted that he was not entitled to collect further temporary disability benefits due to an intervening cause. The ALJ found that Respondents had met their burden to prove that ongoing disability was not related to the original work injury and permitted termination of temporary disability benefits retroactive to the intervening injury.
Cases You Should Know
Horsin’ Around at Work: In Alvarez v. Rifle Tequilas Inc., W.C. NO. 5-050-687 (July 6, 2018), Respondents sought review of the ALJ’s Order finding that Claimant sustained a compensable work-related injury as a result of an assault from a co-employee. ICAO affirmed the ALJ’s decision. Employer provided each of his employees a beer each night at the end of their shift as a perk. One night, Claimant was physically assaulted after he hid his co-employee’s beer. The Claimant and co-employee had a long-standing history of horseplay, which the employer knew about. Using the four-part test pursuant to Lori’s Family Dining Inc. v. Industrial Claim Appeals Office, 907 P.2d 715 (Colo. App. 1995), the presiding ALJ found that Claimant’s act of horseplay (hiding the beer) was not a deviation from his employment and not inherently private. The ALJ reasoned that the assault arose out of the employer’s perk and was related to the duties of the employment. As such, the claim was compensable.
Moral of the Story: Generally speaking, a claimant’s horseplay with another employee is inherently private. However, when the horseplay between employees is related to the circumstances of the employment (an employee perk), the injury is compensable.
The Controlling ATP: In Morris v. Olson Heating & Plumbing Co., W.C. NO. 4-980-171-02 (July 6, 2018), Claimant sought review of an ALJ’s Supplemental Order denying a request for post-MMI medical benefits. Claimant sustained an admitted injury to the lower extremity. Claimant underwent treatment and was placed at MMI. Claimant objected to the ATP’s determinations and sought a DIME. The DIME assigned a scheduled permanent impairment rating and indicated post-MMI medical benefits were required. Respondents filed an amended FAL and admitted to the DIME’s impairment rating but denied post-MMI medical benefits pursuant to the ATP’s recommendations. Claimant argued that the DIME’s determination controlled regarding post-MMI medical treatment. The ALJ indicated that it was Claimant’s burden of proof to establish the necessity of post-MMI medical treatment by a preponderance of the evidence as the DIME’s determinations were limited to permanent impairment and MMI. ICAO affirmed stating that a DIME opinion on post-MMI medical treatment is not entitled to the same presumptive effect as that attached to DIME determinations of MMI or whole person impairment ratings. (Citing City Market v. Industrial Claim Appeals Office, 68 P.3d 601 (Colo. App. 2003).
Moral of the Story: A DIME’s determination is controlling as to MMI and whole person impairment ratings.
Keep it Current: In Tew v. Zachs Transmission & 4×4 LLC, W.C. NO. 5-053-962 (July 3, 2018), Respondents sought review of 2 Orders issued by the Director of the Division of Workers’ Compensation regarding an award of penalties against Respondents. ICAO affirmed the Orders. Claimant sustained an injury on July 26, 2017. On August 10, 2017, Employer filed an Employer’s First Report of Injury. On August 17, 2017, Respondents attempted to file a Notice of Contest via EDI. The Notice of Contest was rejected. On October 5, 2017, the Director issued an Order directing Respondents to file a position statement within 15 days. No response was received. On November 17, 2017, the Director assessed penalties against Respondents; however, the Order was returned to the Division due to the insurer’s invalid mailing address. The Division notified the insurer via email. At that time, the insurer took immediate action to fulfill the Division’s requests. Respondents filed a Petition to Review and requested a prehearing conference for reconsideration of the Order. On February 13, 2018, the Director issued a Supplemental Order denying Respondents’ request for reconsideration and Petition to Review. The Director found that pursuant to Rule 5-14, W.C.R.P., an insurer is required to provide a mailing address to the Division and that mailing to the provided address is “deemed good service.”
Moral of the Story: Failure to timely update a mailing address is not a defense against an award of penalties.
No Texting While Driving but Talking while Driving is Compensable: In this claim, Claimant was involved in a motor vehicle accident (MVA) on her way home from attending a work-related planning meeting. The claim proceeded to hearing for a determination on whether Claimant was in the course and scope of her employment while traveling home from a business meeting. Respondents cited the “going to and coming from” rule and argued the claim was not compensable because the MVA occurred while Claimant was going home. See Berry’s Coffee Shop, Inc. v. Palomba, 423 P.2d 212 (Colo 1967). Claimant asserted that travel was a part of her employment; therefore, the MVA was compensable. Even if found she was not in employment status, the MVA occurred while she was on a work-related cell phone call which brought her back into employment status. Respondents argued that if Claimant was on her phone, she violated the employers’ handbook policy and deviated from her employment. The ALJ found travel was a contemplated part of Claimant’s employment and that the injury was compensable. Respondents appealed. The Panel found that travel was clearly contemplated with employment and Claimant did not depart from her sphere of employment by being on her phone while driving. ICAO affirmed. Elorriga v. ADP Total Source, W.C. No. 5-047-389 (June 19, 2018).
Moral of the story: It is difficult to defend claims where employees are required to travel as a part of employment unless it can be shown the claimant substantially deviated from their employment duties.
The Fire is Not Out Yet: Further evaluation of the firefighter statute continues in City of Boulder Fire Department v. Dean Pacello, (Colo. App. 2018)(nfsp). Claimant was a firefighter for 35 years. After he retired, he developed tongue cancer. It was undisputed that pursuant to C.R.S. § 8-41-209, Respondents had the burden to prove the cancer was not work related. Respondents provided medical evidence that the cancer was more likely caused by HPV, a sexually transmitted disease, than exposure from firefighting. Claimant’s experts testified the cancer was caused by a combination of the virus and firefighting. The ALJ found the claim compensable. Respondents appealed and argued to overcome the presumption by showing the cancer was more likely caused by the virus and the ALJ erred in accepting the multifactorial argument because it created an irrebuttable presumption, as most cancers have multiple risk factors. The Court disagreed. It noted the presumption can be overcome by showing the cancer more likely arose from a “source outside the workplace.” But, the presumption is not automatically rebutted by identifying a non-occupational risk factor. It must be established that the non-occupational risk factor played a prominent role in the cancer’s development. The ALJ makes the determination of whether or not Respondents met the burden. The Court affirmed.
Moral of Story: The ALJ must be persuaded that exposures outside of work were more likely to have caused cancer than exposures while firefighting.