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in a Statement from Colorado Professional Fire Fighters & Colorado State Fire Chiefs
Colorado Supreme Court Decisions & Firefighter Cancer Presumptive Law
May 6, 2016
On Monday, May 2nd, three firefighter cancer cases from lower courts were reversed by the Colorado Supreme Court but the presumptive cancer statute was not overturned.
Workers’ compensation attorney, Neil O’Toole Esq, noted that, “These decisions dramatically weaken the cancer presumption statute and allow the cities and districts to provide limited evidence to overcome it. We may have some success in pursuing these cases down the line, but it has definitely become much harder. At the same time we will continue to go forward with pending cases.”
Joe DePaepe CPCU, CIC, from the Special District Association’s Insurance Pool and the Colorado Firefighter Heart and Circulatory Benefits Trust, noted that, “The Supreme Court did not agree with the lower courts and reversed three decisions that had been made that had not allowed employers to rebut each claim. The lower courts did not allow evidence or testimony that any of the 5 types of cancer could have been caused by any other source other than firefighting.
The statute has always allowed an employer to investigate and where it can find a “preponderance of evidence” that the cancer may have come from a different source then a claim can and should be able to be denied. So, in essence we are just back to where we started in 2007.
The Division of WC requires a claim decision to be made within 20 days of receipt of the claim being filed. Unfortunately, cancer claims cannot be investigated in 20 days so almost every WC carrier is required by the statute to issue a “tentative denial subject to investigation” (TNOC). This means that 30-90 days or more of investigation will be required to check off all of the other possible causes of cancer, check both current and prior employment history, as well as medical history, which admittedly can seem to be quite invasive.”
These rulings should not deter firefighters from seeking claims under the presumptive cancer law for worker’s compensation from cancers caused by firefighting. An assessment of the impact of these decisions is underway.
The Colorado State Fire Chiefs, Colorado Professional Fire Fighters, Special District Association, SDA Insurance Pool, Colorado Municipal League and risk managers will continue to work together to develop new legislation for a Voluntary Cancer Incident Program (VCIP) which would provide timely and appropriate cancer coverage for firefighters without the terrible burden of the worker’s compensation system, attorneys and trials.
Here’s the link to the three cases:
https://www.courts.state.co.us/Courts/Supreme_Court/Case_Announcements/Files/2016/576BFCMAY.2.16.pdf
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