Thursday, July 04, 2013

Firefighter Court of Appeals Case Zukowski

On July 3, 2013 the Colorado Court of Appeals issued a decision I call Zukowski. It is a case that concerns the statutory presumption that certain diseases arise from firefighting duties. The statute shifts the burden to Respondents to overcome the presumption or else the disease will be considered covered under workers compensation. The problem for firefighters is that they do not keep track of all their exposures to toxic chemicals or factors that can cause job related diseases. To improve that situation the statute was passed. However since then there have been efforts to defend against such a presumption. This blog has previously noted this (see the Littleton case entry in this blog for November 3, 2012). In the Zukowski case the firefighter had a melanoma which led to a claim. Respondents lost the hearing and the appeal to the next level but appealed further and the court reversed the prior rulings. In other words the firefighter lost the case barring further appeal. At the hearing the Respondents produced evidence through two physicians. Essentially they concluded that there were greater risk factors for the development of the melanoma from non work factors. The court ruled that the evidence was enough to overcome the statutory presumption and that the hearing judge interpreted the statute too heavily against the Respondents. It was error to require that the statutory presumption can only be overcome by proving the disease was caused by something else unrelated to the job. The court viewed such a standard as akin to saying strict liability applies against the Respondents. My concern is that the evidence was really indicating that non work factors were the greater risk factors then the job exposure to the development of the melanoma. I would say that this defense could well impair the statute's intent. Respondents can use this approach forcing the firefighter to again try to show his melanoma came from work and that could be difficult. My concern is that risk factors or the increased risk do not show what caused the disease and the statute sought to indicate it would presume the cause came from work activities and exposures. In any event the case is required reading in any firefighter case.

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