City of Stephenville v. Belew

692 S.W.3d 347

CITY OF STEPHENVILLE, Self-Insured, Appellant

v.Anna BELEW, Jodi Belew, Minor CB, and Minor RB, Appellees

No. 11-22-00273-CV

Court of Appeals of Texas, Eastland.

Opinion filed March 7, 2024

On Appeal from the 266th District Court, Erath County, Texas, Trial Court Cause No. CV34200

Kay E. Goggin, for Appellees.

Kevin Poteete, Robert D. Stokes, Austin, Jessica MacCarty, for Appellant.

Panel consists of: Bailey, C.J., Trotter, J., and Williams, J.

OPINION

W. STACY TROTTER, JUSTICE

In this workers’ compensation death benefits case, we are confronted with two issues of first impression: (1) is pancreatic cancer, which is claimed to have arisen from a first responder’s (a firefighter or emergency medical technician) on-the-job-activities, considered to be a recognized cancer that originates from the course and scope of the first responder’s employment, and (2) which party, the claimant or the employer/insurer, has the burden to prove that the cancerous condition is a compensable injury. Tex Lab Code Ann. § 408.001(a) (West 2015); Tex Gov’t Code Ann § 607.055 (West 2021).

In the matter before us, we must first determine what evidence that a first responder-claimant—here, a firefighter—who suffers from a cancerous condition must present to show that he is entitled to a statutory presumption that his cancer developed during the course and scope of his employment as a firefighter, pursuant to the version of Section 607.055 of the Government Code that was in effect at the time the claim for benefits arose.¹ See Act of June 17, 2005, 79th Leg., R.S. ch. 695, § 3, 2005 Tex. Gen. Laws 1689, 1690-91 (amended 2019 and 2021) (current version at Gov’t § 607.055). Second, we must determine whether the necessary burden was met and whether either party to this appeal is entitled to summary judgment.

Appellees are the beneficiaries of Michael Belew, a firefighter for the City of Stephenville (the City) who passed away in 2014 after a battle with pancreatic cancer. Appellees seek to recover workers’ compensation death benefits from the City, a self-insurer under the Texas Workers Compensation Act (TWCA or the Act), as a result of Michael’s service as a firefighter with the City. Appellees assert that Michael developed pancreatic cancer during his employment with the City. The City has maintained that Michael did not suffer a compensable injury. As their claim percolated through the Texas Department of Insurance, Division of Workers’ Compensation (TDI-DWC) administrative process, Appellees prevailed at every stage. Upon the completion of this process, the City filed suit for judicial review in the 266th District Court of Erath County to challenge the TDI-DWC’s determinations. Both parties moved for summary judgment on the issue of whether Appellees had met the evidentiary requirements of Section 607.055. After a hearing, the trial court granted Appellees’ motion and denied the City’s motion.

The City raises two issues on appeal and contends that: (1) the trial court erred when it sustained Appellees’ objections to portions of the City’s summary judgment evidence, and (2) Michael did not sustain a compensable injury in the form of an occu- pational disease under Chapter 607 of the Government Code during his service as a firefighter for the City; that is, Section 607.055’s presumption of causation is inapplicable to the pancreatic cancer that Michael purportedly developed during his service as a firefighter for the City. Based on the record before us and our interpretation of the relevant statutory provisions, we conclude that (1) Section 607.055 imposes an initial burden on a worker’s compensation claimant to establish a general causal link between the cancerous condition that he developed during his employment and the specific exposures identified in the statute, pursuant to the criteria promulgated by the International Agency for Research on Cancer (IARC), (2) Appellees failed to carry their summary judgment burden, and (3) the City established that it is entitled to summary judgment. Accordingly, and for the reasons discussed below, we reverse and render.

I. Background

Michael was employed as a firefighter and emergency medical technician by the City, who is a self-insurer under the TWCA. See generally Lab. §§ 407.001-.133 (West 2015 & Supp. 2023). He regularly responded to the scene of fires and other firefighting activities while employed by the City. During his employment, Michael received periodic physical examinations that never revealed any evidence of the development of pancreatic cancer. Gov’t § 607.052(a). Further, neither Michael nor his wife, Anna, smoked or used any tobacco products. Id. § 607.052(b)(4).

In June of 2014, after serving more than a dozen years in this capacity for the City (and also serving as a volunteer firefighter and emergency medical technician for the nearby City of Dublin), Michael noticed pain, as well as redness and swelling, in and around his left thigh. He sought treatment and was diagnosed with deep vein thrombosis; blood thinners were prescribed. Michael’s condition did not improve and in July he and Anna presented to the emergency room of a Fort Worth hospital. After a series of tests over the course of that day, Michael was diagnosed with metastatic pancreatic cancer; he passed away shortly thereafter in early August. Anna and Michael’s children, as his legal beneficiaries, applied for workers’ compensation death benefits under the TWCA; the disposition of the ensuing proceedings culminated in this appeal.

The TDI-DWC administers claims for benefits under the TWCA. In the underlying administrative proceedings, after a benefits-review conference, a TDI-DWC contested-case-hearing officer determined that Michael had sustained a compensable injury in the form of an occupational disease during the course and scope of his employment with the City. The hearing officer’s determination was based, in part, on the officer’s interpretation and application of Section 607.055—a statutory presumption of causation, as discussed below, that is specifically applicable to certain firefighters. In formulating its determination, the hearing officer also relied on the holdings from two previous appeals panel decisions issued by the TDI-DWC’s appellate division.

In the first decision, Appeal No. 150098-S, the appeals panel addressed a firefighter’s claim that her cancer (multiple myeloma) was a covered condition under Section 607.055. After the conclusion of the contested-case hearing, the hearing officer determined that the claimant failed to establish the statutory presumption of causation because she did not present evidence that multiple myeloma is directly caused by firefighting activities or the statutorily relevant exposures. The appeals panel disagreed and concluded that the plain lan- guage of the statute, and the legislature’s apparent intent in enacting it, supported the conclusion that the claimant had met the threshold presumption as provided by Section 607.055.

The appeals panel further concluded that the statutory presumption in Section 607.055 shifted the burden of proof from the claimant to the employer by creating a "presumption of causation in favor of the claimant. The panel quoted the Texas Supreme Court’s decision in Gen. Motors Corp. v. Saenz for the proposition that the presumption’s "effect is to shift the burden of producing evidence to the party against whom it operates." 873 S.W.2d 353, 359 (Tex. 1993). The appeals panel ultimately concluded that the hearing officer failed to properly apply the Statutory presumption by requiring that the claimant present direct and unequivocal evidence that her multiple myeloma was caused by the relevant exposures as designated in the statute because the legislature, by creating the presumption and providing a standard whereby the presumption could be rebutted, intended to shift that burden to the employer.

The second prior appeals panel decision, Appeal No. 151156, relied on this reasoning when the appeals panel addressed whether Section 607.055 applied to a claim that involved essentially the same fact pattern as in the case before us: a firefighter-claimant who suffered from pancreatic cancer and sought the coverage of the presumption in Section 607.055. That case also involved the same evidence (the IARC’s 98th Monograph, discussed in detail below) that is primarily relied upon by the parties in the case before us. Applying its previous analysis of the presumption’s burden-shifting effect, the appeals panel stated that because the 98th Monograph "references evidence-based medicine on firefighters developing types of cancer, including pancreatic cancer, under the title of ‘Studies of Cancer in Humans,’ " and because Section 607.055 carries a low threshold causation standard, the evidence was sufficient to establish that Section 607.055 applied to the claimant’s pancreatic cancer (emphasis added). As such, the appeals panel reversed the hearing officer’s determination that the claimant’s pancreatic cancer was not compensable and remanded the matter to the hearing officer for further proceedings.²

By relying on these appeals panel decisions, and in applying its reasoning to Michael’s claim, the hearing officer noted that a nearly identical fact pattern existed and thus Section 607.055 applied to the pancreatic cancer that Michael developed. The City appealed the hearing officer’s decision, and the appeals panel adopted the hearing officer’s decision without issuing a written opinion.

With its administrative remedies exhausted, the City filed suit for judicial review in the 266th District Court of Erath County; in its suit, the City only challenged and addressed the application of the statutory presumption. All other pertinent issues in the underlying claim remain pending before the TDI-DWC for administrative adjudication.³ In the trial court be- low, the parties filed cross-motions for summary judgment. Appellees filed a hybrid...