To Rebut Idaho’s Cancer Presumption Favoring Firefighters, Employer Must Offer Evidence that Cancer was Not Caused by Employment

The Supreme Court of Idaho, construing Idaho Code § 72-438(14)(b), which generally provides firefighters with a rebuttable presumption that certain listed cancers have a causal connection with the employment, held (a) that the presumption does not unconstitutionally discriminate between employers of firefighters who have cancer and the employers of other employees who claim to have contracted an occupational disease; and (b) that in the case at bar, the employer failed to rebut the presumption of causation with substantial and competent evidence [Nelson v. City of Pocatello, 2022 Ida. LEXIS 46 (Apr. 29, 2022)]. With regard to the second holding, the high court stressed that it wasn’t enough to introduce evidence that cast substantial doubt on whether the firefighter’s cancer was caused by the employment. Instead, the employer must introduce substantial and affirmative medical evidence that the claimant’s cancer was not caused by his employment.

Background

Nelson was a firefighter for 21 years, working for the City from 1993 to 2014. He was actively involved in fire prevention and investigation for 18 years, from 1993 to 2011, and retired as a firefighter in 2014. In November 2018, Nelson was diagnosed with early-stage chronic lymphocytic leukemia (“CLL”). He notified his employer the same month and timely submitted a workers’ compensation claim for his medical benefits. The Industrial Commission indicated that Nelson’s CLL diagnosis qualified for the presumption set forth in Idaho Code § 72-438(14)(b).

Employer Attempts to Rebut Presumption

The City sought to rebut the statutory presumption with the report and testimony of Robert E. Burdick, M.D. Dr. Burdick’s report discussed studies and statistics concerning the association between CLL and firefighting. In pertinent part, Dr. Burdick testified that the absence in the medical literature of a medically probable link between firefighting and CLL meant that a physician could not conclude with medical probability that Nelson’s CLL was causally related, on a more probable than not basis, to toxins he may have been exposed to during his employment for the City as a firefighter. On cross-examination, Dr. Burdick conceded that no one could truly say what caused Nelson’s CLL.

Industrial Commission’s Decision

The Industrial Commission concluded that the City failed to produce substantial affirmative evidence to rebut the statutory presumption of causation because it “failed to produce affirmative medical evidence that [Nelson’s] cancer was caused by something other than his employment.” The City appealed to the Idaho Supreme Court.

Idaho High Court: Statute is Constitutional

Initially, and at some length, the Idaho Supreme Court considered the City’s constitutional argument. It provided an analysis of what standard it should use in determining the constitutionality of the presumption provision and determined that the “rational basis test,” the least burdensome, should be used. Under that standard, the Court was not required to evaluate the fairness or efficacy of the statute being challenged; the statutory classification would survive if it was rationally related to a legitimate governmental purpose. Under the facts of the case, the Court said the presumption did not violate the City’s equal protection rights.

Presumption Required City to Show Non-Work-Related Case was Substantial Factor

The high court stressed that it was not enough for the City to cast substantial doubt on the question of whether Nelson’s cancer was caused by his employment, the City had to present substantial and affirmative medical evidence that the Nelson’s cancer was not caused by his employment. The Court observed:

Here, the City presented evidence from Dr. Burdick, an oncologist and medical expert who opined that Nelson’s cancer was not caused by firefighting. However, Dr. Burdick’s foundation for his report was solely based on evidence that firefighting, in general, does not significantly increase the risk of cancer on a more-probable-than-not basis. In other words, Dr. Burdick’s report sought to rebut the presumption not by showing an alternate cause for Nelson’s CLL, but by attacking the evidentiary foundation for the underlying the presumption contained in the statute.

City’s Evidence Only Challenged Presumption Itself

The Court continued that even if Dr. Burdick disagreed with the Legislature’s conclusion that medical studies support a causal connection between firefighting and cancer, an expert witness cannot unilaterally overcome a legislatively enacted presumption simply by offering a contrary opinion. To do so, said the court, would essentially permit Dr. Burdick, through his testimony, to strike down a legislative enactment on evidentiary grounds.

Instead, said the Court, Dr. Burdick should have directed his research and testimony towards Nelson’s CLL and offered proof of an alternative cause for it. Ultimately, the City’s evidence appeared to only challenge the statutory presumption itself, rather than rebut the presumption that Nelson’s cancer was caused by his employment. The Court said it was important to add that Dr. Burdick’s deposition illustrated the exact evidentiary difficulty the Legislature was concerned with: that firefighters could almost never prove in court that their cancer was caused by their employment.

The Court agreed that the City had not rebutted the presumption. The Commission’s findings of fact and conclusion of law were thus affirmed.