AP Reverses ALJ in Firefighter Presumption Case

The appeals panel has reversed a contested case hearing decision and order and remanded the case for further development after the ALJ decided that the claimant had sustained a compensable injury in the form of an occupational disease – bladder cancer. The panel concluded that the ALJ incorrectly applied the presumption to the claim.

The appeal is posted in Texas Division of Workers’ Compensation Appeals Panel Decision No. 200100-s, decided March 12, 2020.

The ALJ determined that: (1) the claimant sustained a compensable injury, in the form of an occupational disease; (2) the claimant had disability from March 14 through March 29, 2019, and from May 25 through June 18, 2019; and (3) the claimant did not have disability on March 12, March 13, from March 30 through May 24, 2019, nor from June 19, 2019, through the date of the CCH.

The self-insured governmental entity appealed the ALJ’s determination of compensability as well as the determination of disability in favor of the claimant. The self-insured contended that the ALJ incorrectly determined that the claimant met the requirements of Government Code Section 607.052(b)(4) because the claimant admitted to smoking cigarettes at some point in his past. The claimant responded, urging affirmance of the appealed determinations.

The claimant first worked as a firefighter and emergency medical technician. He testified that he was promoted to an engineer operator, which required him to drive the firefighting apparatus to the scene, help pump water into the fire, and occasionally suit up and fight interior structure fires. It is undisputed the claimant was diagnosed with bladder cancer in March 2019. The claimant contended that he developed bladder cancer as a result of exposure to heat, smoke, and carcinogens during his work for the self-insured.

The evidence reflected that smoking cigarettes is known to cause bladder cancer. The claimant testified at the CCH that after he graduated high school in 2004, he had socially smoked cigarettes from approximately 2005 to 2006. The claimant testified he had smoked cigarettes on maybe six or seven occasions, he never liked them or purchased any, never considered himself a smoker, and that he had perhaps half a dozen cigarettes in his life at that time and “never picked another one up.” The ALJ stated the following in her discussion regarding the claimant’s tobacco use:

. . . [the] [c]laimant’s testimony regarding his prior limited use of tobacco was persuasive. Consequently, [the] [c]laimant is not excluded from establishing the presumption under Section 607.052(b)(4) of the Texas Government Code.

The self-insured argued on appeal that a plain reading of Government Code Section 607.052(b)(4) indicates that if the disease or illness for which benefits or compensation is sought is known to be caused by the use of tobacco and the firefighter or emergency medical technician is or has been a user of tobacco, the presumption does not apply.

The claimant argued that tobacco use is “any habitual use of the tobacco plant leaf and its products,” and a user is “based on long-continued use.” The claimant contends that smoking a total of approximately seven cigarettes in his life approximately 15 years before his bladder cancer diagnosis does not make him a habitual user of tobacco products and does not exclude the cancer presumption under Government Code Section 607.052(b)(4).

The appeals panel agreed with the self-insured.

Based on the plain reading of Government Code Section 607.052(b)(4), the cancer presumption under 607.052 does not apply if the disease or illness is known to be caused by the use of tobacco, and the firefighter or emergency medical technician is or has been a user of tobacco. The statute does not define a minimal amount of tobacco used or the length of time tobacco has been used by the firefighter or emergency medical technician that would preclude the cancer presumption. We decline to impose a threshold amount or time frame when the legislature has not done so. We note the House Research Organization (HRO) Bill Analysis for S.B. 310 reflects that opponents of S.B. 310 presented the argument that a firefighter “who smoked for a short period of time in the past might be denied benefits if he developed certain forms of cancer, even though [firefighters] in burning buildings can be exposed to a variety of cancer-causing carcinogens.” HRO Bill Analysis, Tex. S.B. 310, 79th Leg. R.S. (2005). The facts of this case establish that bladder cancer is known to be caused by smoking cigarettes. The facts also establish that the claimant has smoked cigarettes in the past. Therefore, we hold that under Government Code Section 607.052(b)(4), the claimant’s tobacco use precludes the claimant from establishing the cancer presumption.

Accordingly, the appeals panel reversed the ALJ’s decision and order.

The appeals panel remanded the case to the ALJ in order for the ALJ to make findings of fact, conclusions of law, and a determination whether the claimant sustained a compensable injury in the form of an occupational disease on the basis of actual causation rather than the presumption.