AP Mandates Strict Adherence to Government Code in First Responder Presumption Claim
In APD 251917, decided January 7, 2026, the Appeals Panel reversed and remanded an ALJ’s decision granting workers’ compensation benefits to a veteran firefighter diagnosed with prostate cancer, citing procedural error by the ALJ. While acknowledging the firefighter met the statutory presumption of an occupational disease, the panel found the ALJ failed to sufficiently evaluate the Self-Insured employer’s expert evidence intended to rebut that presumption.
The ALJ made the following findings of fact: upon becoming a firefighter the claimant had a physical examination that failed to reveal evidence of prostate cancer; the claimant was diagnosed with prostate cancer on (date of injury); at the time the claimant was diagnosed with prostate cancer he had been employed as a firefighter for more than five years; the claimant was seeking benefits for prostate cancer discovered during his employment as a firefighter; during his career as a firefighter for the employer the claimant regularly responded on the scene to calls involving fires or firefighting; and prostate cancer is listed in Texas Government Code Section 607.055(b). None of these findings were appealed.
The ALJ also found that the presumption of Government Code Section 607.055 applies in this case, and the APD agreed.
The Self-Insured asserted on appeal that once the ALJ determined Government Code Section 607.055 applied in this case he was required by Government Code Section 607.058(c) to make a specific finding of fact and conclusion of law regarding the expert report in evidence to rebut the presumption.
The panel specifically noted that the Self-Insured presented evidence as required under Government Code Section 607.058(b) to rebut the presumption under Government Code Section 607.055. In reviewing the ALJ’s decision, the panel further noted that the ALJ did make a finding of fact that the Self-Insured did not persuasively establish by a preponderance of the evidence that, based upon reasonable medical probability, an identified risk factor, accident, hazard, or other cause not associated with the claimant’s employment was a substantial factor in bringing about the claimant’s prostate cancer, without which prostate cancer would not have occurred. The ALJ also made a conclusion of law that the Self-Insured did not persuasively rebut the presumption of compensability provided by Government Code Section 607.055.
However, the ALJ did not make a finding of fact or conclusion of law that considers whether a qualified expert, relying on evidence-based-medicine, stated the opinion that, based on reasonable medical probability, an identified risk factor, accident, hazard, or other cause not associated with the claimant’s service as a firefighter was a substantial factor in bringing about the claimant’s disease or illness, without which the disease or illness would not have occurred, which is required under Government Code Section 607.058(c).
The AP therefore reversed the ALJ’s determination that the claimant sustained a compensable injury in the form of an occupational disease, and remanded this issue to the ALJ to make findings of fact and conclusions of law as to whether a qualified expert, relying on evidence-based-medicine, stated the opinion that, based on reasonable medical probability, an identified risk factor, accident, hazard, or other cause not associated with the claimant’s service as a firefighter was a substantial factor in bringing about the claimant’s disease or illness, without which the disease or illness would not have occurred. The ALJ is then to make findings of fact and conclusions of law as to whether the Self-Insured rebutted the presumption pursuant to Government Code Section 607.058. Finally, the ALJ is to determine whether the claimant sustained a compensable injury, in the form of an occupational disease, with a specific date of injury.
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