City of Littleton v. Indus. Claim Appeals Office of Colo.

412 P.3d 440

CITY OF LITTLETON, Colorado, Littleton Fire Rescue; and CCMSI, Petitioners,

v.INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE of Colorado; Julie Christ, surviving spouse and personal representative of Jeffrey J. Christ, deceased; and Michelle Parris, on behalf of Lauren Parris, Respondents.

No. 10CA1494.

Colorado Court of Appeals, Div. V.

Nov. 1, 2012.

Nathan, Bremer, Dumm & Myers, P.C., Anne Smith Myers, Timothy R. Fiene, Denver, Colorado, for Petitioners.

John W. Suthers, Attorney General, Katie Allison, Assistant Attorney General, Denver, Colorado, for Respondent Industrial Claim Appeals Office.

Law Office of O'Toole and Sbarbaro, P.C., Neil D. O'Toole, Denver, Colorado, for Respondent Julie Christ.

Wilcox & Ogden, P.C., Ralph Ogden, Denver, Colorado, for Respondent Michelle Parris.

Opinion by Judge RUSSEL.

¶ 1 This workers' compensation appeal arises from an order issued by the Industrial Claim Appeals Office (the panel). The City of Littleton and its insurer, CCMSI (collectively, Littleton), seek review of the panel's order in favor of Littleton's employee, firefighter Jeffrey J. Christ (claimant). We affirm.

I. Introduction

¶ 2 Claimant was hired by Littleton in 1987. He started as a combat firefighter and was eventually promoted to battalion chief. Over his career, claimant responded to hundreds of fires and other situations involving hazardous materials.

¶ 3 In 2007, claimant was diagnosed with glioblastoma multiforme (GBM), a type of brain cancer. He underwent surgery and was treated with chemotherapy and radiation. He then sought workers' compensation benefits to cover his treatment. Littleton objected, and the case was brought before an administrative law judge (ALJ).

¶ 4 After hearing evidence, the ALJ denied claimant's request for benefits. The ALJ recognized that claimant's cancer was statutorily presumed to have resulted from his employment. See § 8–41–209, C.R.S.2012. But she ruled that Littleton had proved that claimant's cancer was "not caused by his occupational exposures."

¶ 5 Claimant then turned to the panel. After reviewing the evidence, the panel ruled that Littleton had failed to sustain its burden of proof. The panel reversed the ALJ's order and remanded for a determination of benefits.

¶ 6 On remand, the ALJ awarded claimant both medical and disability benefits. The panel upheld that award.¹

¶ 7 Littleton now appeals the panel's decision. It asks us to decide whether its evidence was sufficient to sustain its burden of proof under section 8–41–209. To resolve that issue, we must determine what the statute does and examine Littleton's evidence in light of that determination.

¶ 8 Our discussion is divided into several parts:

Part II.A	We explain how causation is established and analyzed in a traditional case.
Part II.B	We examine the statute and highlight its key features.
Part II.C	We explain the statute's practical effect in light of traditional toxic tort principles.
Part III	We outline the evidence presented and explain the ALJ's and panel's rulings.
Part IV	We analyze the evidence presented.
Part V	We conclude that Littleton failed to sustain its burden of proof.

II. The Firefighter Statute

¶ 9 To understand the effect of section 8–41–209, one must first understand how causation is typically proved in a toxic exposure case. We therefore begin by reviewing proof of causation in a traditional tort or workers' compensation case.

A. Causation in the Usual Case

¶ 10 In a traditional case, the plaintiff must prove causation. That element may be easy or difficult to prove, depending, in part, on the type of case.

¶ 11 In a traumatic injury case, causation is usually a simple matter. See Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 28 cmt. c(1) (2010) ("When a passenger in an automobile collision suffers a broken limb, potential causal explanations other than the collision are easily ruled out; common experience reveals that the forces generated in a serious automobile collision are capable of causing a fracture."). But causation is not simple when the plaintiff claims that he developed a disease through an exposure to a toxic substance. In that case, causation is complicated by (1) significant latency periods between the alleged exposure and the claimed disease, and (2) imperfect knowledge about the biological history of that disease. See id.

¶ 12 In this latter type of case, courts traditionally evaluate the plaintiff's proof by examining two aspects of causation: general causation and specific causation. See, e.g., Raynor v. Merrell Pharm., Inc., 104 F.3d 1371, 1376 (D.C.Cir.1997) (causation in toxic tort cases is discussed in terms of general causation and specific causation).²

1. General causation

¶ 13 To prove general causation, the plaintiff must show that the "substance is capable of causing a particular injury or condition in the general population." Norris v. Baxter Healthcare Corp., 397 F.3d 878, 881 (10th Cir.2005).

¶ 14 Plaintiffs usually try to prove general causation through two types of evidence. First, plaintiffs offer toxicological evidence, which is usually based on in vitro experiments and animal studies. See Gerald W. Boston, A Mass–Exposure Model of Toxic Causation: The Content of Scientific Proof and the Regulatory Experience, 18 Colum. J. Envtl. L. 181, 214–15 (1993). Second, plaintiffs offer testimony based on epidemiological studies. Courts regard epidemiology as the best evidence of general causation. See Norris, 397 F.3d at 882.

¶ 15 In an epidemiological cohort study, an investigator examines disease rates in a population that has been exposed to a substance, and then compares that result with the disease rates in a population that has not been exposed. The comparison yields a ratio known as the relative risk:

This comparison of rates is the relative risk: the risk in the exposed population relative to the risk in the non-exposed population. This may be expressed as: Relative Risk ("RR") = R1/R2, where R1 = the risk of disease in the exposed population and R2 = the risk of disease in a non-exposed population.

If the relative risk equals one (i.e., the numerator is the same as the denominator), the risk in the exposed group is the same as the risk in the non [-]exposed group, and there is no suggestion of any association between the factor and the disease in question. If the relative risk is greater than one, the risk in the exposed group is greater than in the nonexposed group, and there is a positive association between the exposure and the disease. Conversely, if the relative risk is less than one, then the risk in exposed individuals is less than the risk in non-exposed individuals, suggesting a protective effect.

Boston, 18 Colum. J. Envtl. L. at 235 (footnotes omitted).

2. Specific causation

¶ 16 To prove specific causation, the plaintiff must establish, by particularized evidence, that the alleged exposure caused his specific disease. Evidence about the plaintiff's medical history and his particular exposure (the dose, frequency, and duration) will be important. See, e.g., Allen v. Pennsylvania Eng'g Corp., 102 F.3d 194, 199 (5th Cir.1996) ( "Scientific knowledge of the harmful level of exposure to a chemical, plus knowledge that the plaintiff was exposed to such quantities, are minimal facts necessary to sustain the plaintiffs' burden in a toxic tort case."); Downs v. Perstorp Components, Inc., 126 F.Supp.2d 1090, 1095 (E.D.Tenn.1999) (discussing components of specific causation—qualitative toxicity, dose-response, temporality, confounders, and coherence—and noting that "[f]ailure to establish even one of these criteria ... is usually fatal to the proposition that exposure to a specific chemical caused a specific medical condition").

B. Section 8–41–209

¶ 17 Consider now a firefighter who believes that his disease was caused by an exposure to a toxic substance that he encountered while battling fires. How will he fare under the traditional model?

¶ 18 The answer is "badly." And it is easy to see why. First, the firefighter may have no way of identifying the substances to which he was actually exposed. (Rarely is monitoring equipment installed at a fire scene before the firefighters arrive.) Consequently, he may be unable to locate the relevant epidemiological studies, if indeed those exist.³ Second, even if the firefighter can show that he was exposed to a substance that is known to cause his type of disease, he may lack the kind of information needed to prove specific causation. See, e.g., Estate of George v. Vermont League of Cities & Towns, 187 Vt. 229, 993 A.2d 367, 369 (2010) (affirming summary judgment where the firefighter presented no evidence about the substances present at his fires and no evidence about "the frequency of exposure or types of exposures that [he] may have had").

¶ 19 In 2007, the legislature made it easier for firefighters to recover benefits. It enacted a statute that reverses the usual burden of proof in a narrow class of cases:

(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.

§ 8–41–209.

¶ 20 This...