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.

Notices of Rulemaking

Based on statutory changes and a need to make rules to comply with law changes the Colorado Division of Workers Compensation is moving forward with proposed new rules in certain areas. The Division lets us know ahead of time what is coming up to consider and this can be viewed here. One proposed change which will likely be approved is a new and more current life expectancy table. Such a table is primarily used in the computations for permanent total disability. Those benefits are paid out every other week and when we try to settle them we have to mathematically estimate the present value of those checks allowing for inflation and other factors. It is a bit like a home mortgage in that the cash price for the house is one figure and the monthly mortgage over many years adds up to a much higher number. Life expectancy is plugged into the math calculations to help compute the cash or present value of your biweekly checks. The longer you are figured to live the higher the cash value. The table now in use has not been updated in years. I took a quick look at the new proposed table. In one example the table changes the expectancy from 23.1 to 27 for a 58 year old. The other proposed rules concern surveys of claimants and insurance IME matters.

Colorado Mortality Table

At Colorado Revised Statutes 13-25-103 the state sets forth life expectancies as we all age. Important in workers comp? Yes because if you might receive benefits for life then this tells us how long the average person lives based on current age. From that we can figure the value of a claim after discounting for interest rates and other factors. That makes this table important to some degree. Insurers sometimes assert the average age is not always correct and use what they call the rated age (a reduced age based on stats the insurers have for those as sick/disabled as you). I am posting the current Colorado life expectancies between 16 and 72 in full here but refer to the statute if you are younger or older:

16..... 61.5
17..... 60.6
18..... 59.6
19..... 58.7
20..... 57.7
21..... 56.8
22..... 55.8
23..... 54.9
24..... 53.9
25..... 53.0
26..... 52.0
27..... 51.1
28..... 50.1
29..... 49.2
30..... 48.2
31..... 47.3
32..... 46.3
33..... 45.4
34..... 44.4
35..... 43.5
36..... 42.6
37..... 41.6
38...... 40.7
39..... 39.8
40...... 38.8
41..... 37.9
42..... 37.0
43..... 36.1
44..... 35.2
45..... 34.3
46..... 33.4
47..... 32.5
48..... 31.6
49..... 30.7
50..... 29.8
51..... 29.0
52..... 28.1
53..... 27.2
54..... 26.4
55..... 25.5
56..... 24.7
57..... 23.9
58..... 23.1
59..... 22.3
60..... 21.5
61..... 20.7
62..... 20.0
63..... 19.2
64..... 18.5
65..... 17.8
66..... 17.1
67..... 16.4
68..... 15.7
69..... 15.0
70..... 14.3
71..... 13.7
72..... 13.1