AP Reverses ALJ in Firefighter Presumption Case

The appeals panel has reversed an ALJ’s decision and order and rendered a decision that a firefighter who claimed that he sustained a mucinous cystadenoma/cystadenocarcinoma – a form of pancreatic cancer – was entitled to recover benefits under the Texas Workers’ Compensation Act. The appeal is posted in Texas Division of Workers’ Compensation Appeals Panel Decision No. 191065, decided August 6, 2019. The case involves application of the presumption statute as it existed prior to the 2019 amendments found in S.B. 2551.

The ALJ resolved the disputed issues by deciding that: (1) the claimant did not sustain a compensable injury, in the form of an occupational disease; and (2) because the claimant did not sustain a compensable injury, the claimant did not have disability. The claimant appealed the ALJ’s determinations of compensability and disability.

Claimant first worked as a probationary firefighter and subsequently was employed as a firefighter/paramedic for a self-insured city. An MRI reported the radiologist’s impression of a cystic tumor in the tail of the pancreas “which is most compatible with a mucinous cystadenoma/cystadenocarcinoma.” The claimant was diagnosed with a neuroendocrine tumor of the pancreas. Subsequently, the claimant obtained the results of a liver biopsy and it was determined that he had a neuroendocrine tumor of the liver. The claimant testified that his father had kidney cancer, although there was no specific evidence that the kidney cancer was a result of a neuroendocrine tumor.

The ALJ found that the claimant had been diagnosed with a pancreatic neuroendocrine tumor and metastatic neuroendocrine tumor of the liver (digestive cancers) and that digestive cancer is known to be associated with firefighting or exposure to heat, smoke, radiation, or a known or suspected carcinogen, as determined by the International Agency for Research on Cancer. The ALJ found that the claimant established the presumption under Chapter 607 of the Texas Government Code. These findings were not appealed.

The ALJ also found that the self-insured rebutted the presumption that the claimant developed pancreatic and liver cancers during the course and scope of employment through showing by a preponderance of the evidence that a risk factor, accident, hazard, or other cause not associated with the individual’s service as a firefighter or emergency medical technician caused the claimant’s pancreatic and liver cancers relying on the testimony and written report of the self-insured city’s expert (Dr. K).

The appeals panel discounted much of Dr. K’s testimony because it had focused on the question whether the presumption applied in the case – an issue that the ALJ had determined against the city and which had not been appealed by the city. The appeals panel next examined Dr. K’s testimony carefully to ascertain whether it supported the ALJ’s determination that the presumption had been rebutted. The appeals panel observed that under § 607.058:

A presumption under Sections 607.053, 607.054, 607.055, or 607.056 may be rebutted through a showing by a preponderance of the evidence that a risk factor, accident, hazard, or other cause not associated with the individual’s service as a firefighter or emergency medical technician caused the individual’s disease or illness.

According to the appeals panel, the city’s evidence was insufficient to establish the rebuttal standard had been met.

The ALJ stated that Dr. K’s testimony was persuasive that the claimant’s pancreatic neuroendocrine tumor is related to family history. However, while the claimant testified that his father had kidney cancer, there was no specific evidence that the kidney cancer was a result of a neuroendocrine tumor. Further, it is undisputed that the claimant did not have any genetic testing to determine if he possessed any of the genetic syndromes which have been identified to cause pancreatic neuroendocrine tumors. Although Dr. K’s written report dated October 30, 2018, stated that neuroendocrine tumors can occur in the kidney, Dr. K acknowledged that the type of kidney cancer the claimant’s father had was not described.

Dr. K testified that the cancers caused from neuroendocrine tumors were not mentioned in the monograph of the IARC. Dr. K contended that the claimant’s type of cancer was not associated with the firefighter literature. However, Dr. K testified he could not say what was the cause of the claimant’s cancer, other than his contention it was related to family history. Dr. K contended simply that it was not a result of the claimant’s duties as a firefighter/paramedic.

The ALJ is the sole judge of the weight and credibility of the evidence (Section 410.165(a)) and, as the trier of fact, resolves the conflicts and inconsistencies in the evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). As an appellate reviewing tribunal, the Appeals Panel will not disturb challenged factual findings of an ALJ absent legal error, unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Under the facts of this case, we find the ALJ’s finding that the self-insured rebutted the presumption through showing by a preponderance of the evidence that a risk factor, accident, hazard, or other cause not associated with the claimant’s service as a firefighter or emergency medical technician caused the individual’s disease or illness as required by Government Code Section 607.058 to be so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Accordingly, we reverse the ALJ’s determination that the claimant did not sustain a compensable injury, in the form of an occupational disease, with a date of injury of (date of injury), and render a new decision that the claimant did sustain a compensable injury, in the form of an occupational disease, with a date of injury of (date of injury).

One implication of the appeals panel’s decision is that a carrier must appeal an adverse determination that a Chapter 607 presumption applies even though it has prevailed on a rebuttal theory. This suggests that the appeals panel now views the application of a presumption to be a separate issue under the Texas Supreme Court’s decision last year in State Office of Risk Management v. Martinez, (No. 16-0337).

The decision also implies, without directly so stating, that a rebuttal finding may not be supported by an expert’s testimony that a risk factor, accident, hazard, or other cause not associated with the claimant’s service as a firefighter caused his presumed disease unless that risk factor, accident, hazard, or other cause is specifically identified. The Government Code applicable to this claim does not so require. It merely requires that the city persuasively prove that the employee’s work was not a cause of his disease. It does not require the city to identify and prove specifically what the non-work related cause happened to be.

Finally, the decision suggests that even where a city’s expert opines that a specific non-work related risk factor, accident, hazard, or other cause – such as the claimant’s family history in this case – was the cause of the employee’s disease, that opinion is insufficient to support a rebuttal theory unless it is supported by underlying genetic testing.