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In an opinion filed
March 7, 2024, the 11th Court of Appeals (Eastland) reversed
the trial court’s summary judgment that Michael Belew developed pancreatic
cancer during his employment as a firefighter and emergency medical technician
with the City of Stephenville. Mr. Belew passed away in 2014.
Following a contested case hearing, the hearing officer relied upon Appeals
Panel Decision Nos. 150098-s and 151156 in determining that the statutory
presumption created by Section 607.055 (as it existed prior to its amendment
effective June 10, 2019) applied to the pancreatic cancer developed by Mr.
Belew, thereby relieving Appellees of the burden to prove causation, i.e. that
Mr. Belew’s cancer arose out of the course and scope of his employment as a
firefighter. The Appeals Panel adopted the hearing officer’s decision without
issuing a written decision.
The Eastland Court, however, determined that, in the decisions listed above,
the Appeals Panel “simply misapplied the effect of the statutory presumption.”
Section 607.055 that is applicable to this case provides:
(a) A firefighter or emergency medical technician who suffers from cancer resulting in death or total or partial disability is presumed to have developed the cancer during the course and scope of employment as a firefighter or emergency medical technician if:
(1) the firefighter or emergency medical technician:
(A) regularly responded on the scene to calls
involving fires or firefighting; or
(B) regularly responded to an event involving the
documented release of radiation or a known or suspected carcinogen while the
person was employed as a firefighter or emergency medical technician; and
(2) The cancer is known to be associated with fire fighting
or exposure to heat, smoke, radiation, or a known or suspected carcinogen, as
described by Subsection (b).
(b) This section applies only to a type of cancer that
may be caused by exposure to heat, smoke, radiation, or a known or suspected
carcinogen as described by the International Agency for Research on Cancer
(IARC).
The IARC conducts critical reviews and evaluations on the carcinogenicity of a
wide range of human exposures and publishes the results of its evaluations in
monographs. The 98th Monograph evaluated the occupational cancer
hazards of painting, firefighting, and shift work. The authors of the monograph
found limited evidence of the development of cancer as it relates to exposure
as a firefighter; however, after considering a variety of studies, as well as
large meta-analyses, the authors concluded that the only cancers statistically
significant for cancer risks in firefighters were testicular, prostatic, and
non-Hodgkin’s lymphoma. Pancreatic cancer is not a type of cancer that is
connected to or may be caused by firefighting.
The Court agreed with the City that Mr. Belew’s pancreatic cancer does not meet
the requirements of section 607.055 and therefore the presumption of causation
does not apply. The court reversed the trial court’s judgment that Mr. Belew
sustained a compensable injury and rendered judgment in favor of the City.
Copyright 2024, Stone Loughlin & Swanson, LLP