DI LUZIO V. CITY OF SANTA FE, 2015-NMCA-042,
357 P.3d 401
FRANK C. DI LUZIO,
Worker-Appellee/Cross-Appellant,
v.
CITY OF SANTA FE, self-insured,
Employer-Appellant/Cross-Appellee.
COURT OF APPEALS OF NEW MEXICO
2015-NMCA-042, 357 P.3d 401
APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION,
Terry S. Kramer, Workers’ Compensation Judge.
Released for Publication April 28,
2015.
Gerald A. Hanrahan, Albuquerque, NM, for
Appellee/Cross-Appellant.
French & Associates, Katherine E.
Tourek, Albuquerque, NM, for Appellant/Cross-Appellee.
CYNTHIA A. FRY, Judge. WE CONCUR: JONATHAN
B. SUTIN, Judge, MICHAEL E. VIGIL, Judge.
{1} This case is on
appeal from a workers’ compensation judge’s (WCJ) order granting Worker, a
former City of Santa Fe firefighter, total disability benefits under the New
Mexico Occupational Disease Disablement Law (Occupational Disease Act), NMSA
1978, §§
52-3-1 to -60 (1945, as amended through 2013), following his diagnosis
with mantle cell non-Hodgkin’s lymphoma. On appeal, Employer argues that
application of Section 52-3-32.1, which creates a rebuttable presumption that
certain diseases were proximately caused by firefighting, to these facts
constitutes a retroactive application of the statute. Employer further argues
that the Occupational Disease Act still requires firefighters to establish with
medical probability that their disease was caused by firefighting and that
Worker failed to do so. Finally, Employer argues that it should be allowed to
rebut the causation presumption with evidence that non-Hodgkin’s lymphoma is
not caused by firefighting. Worker cross-appeals arguing that the WCJ erred in
calculating the rate of disability benefits he is owed.
{2} In regard to
Employer’s arguments, we conclude that because Worker met the statutory
prerequisites to be entitled to the presumption that his disease was the result
of his years of service as a firefighter, he was not required to establish that
his disease was causally connected to his employment. Further, because Employer
did not present evidence that Worker’s disease was the result of conduct or
activities outside his employment, we conclude that Employer failed to rebut this
presumption.
See § 52-3-32.1(C). Finally, we conclude that
application of Section 52-3-32.1 to these facts does not constitute a
retroactive application of the statute. Accordingly, we affirm the WCJ on these
bases. In regard to Worker’s cross-appeal, we conclude that the WCJ erred in
calculating the compensation amount due Worker by failing to take into account
the date that Worker became disabled. Accordingly, we reverse and remand on
this point.
{3} Worker began
working as a firefighter/paramedic for the City of Santa Fe in 1979. He
remained with the fire department until 2000. During his twenty-one-year career
with the fire department, Worker served in a variety of roles, including shift
commander, captain of emergency services, division chief, deputy fire chief,
and fire chief. Worker testified that at all times during his career with the
fire department, he actively fought or attended fires approximately two times
per week.
{4} Following his
career as a firefighter, Worker briefly served as the Santa Fe City Manager.
After leaving employment with the City of Santa Fe, Worker worked in other
occupations before becoming employed with the New Mexico Children, Youth and
Families Department (CYFD). Worker was working as a supervisor for the employee
relations bureau at CYFD in January 2012 when he was diagnosed with mantle cell
non-Hodgkin’s lymphoma. Due to his illness, Worker accepted a demotion in
November 2012 from supervisor to employee relations specialist and began
working increasingly reduced hours. Worker subsequently resigned from
employment with CYFD in June 2013 due to his inability to continue working.
{5} Worker timely filed
his complaint for benefits in June 2012. The WCJ determined that Worker was
entitled to a presumption that his disease was proximately caused by his years
of service as a firefighter because, under Section 52-3-32.1, non-Hodgkin’s
lymphoma is an identified disease and Worker served more than fifteen years as
a firefighter.
See § 52-3-32.1(B)(5). The WCJ determined that Worker
became physically unable to work in January 2012. Among other relief, the WCJ
awarded Worker $480.47 per week in total disability benefits for a maximum of
700 weeks. Employer now appeals the WCJ’s determination that Worker was entitled
to the presumption that his service as a firefighter proximately caused his
disease and Worker cross-appeals the basis of the WCJ’s award of benefits.
{6} We begin with
Employer’s arguments regarding the WCJ’s application of the firefighter
occupational disease statute before considering Worker’s argument regarding the
calculation of disability benefits. Both parties’ arguments require us to
interpret the provisions of the Occupational Disease Act. Statutory
interpretation is a question of law that we review de novo.
Cooper v.
Chevron U.S.A., Inc.,
2002-NMSC-020, ¶ 16,
132 N.M. 382,
49 P.3d 61.
{7} “In interpreting
statutes, we seek to give effect to the Legislature’s intent, and in
determining intent we look to the language used and consider the statute’s
history and background.”
Key v. Chrysler Motors Corp.,
1996-NMSC-038, ¶
13,
121 N.M. 764,
918 P.2d 350. General principles guide our construction of
statutes. First, the “plain language of [the] statute is the primary indicator
of legislative intent.”
High Ridge Hinkle Joint Venture v. City of
Albuquerque,
1998-NMSC-050, ¶ 5,
126 N.M. 413,
970 P.2d 599 (internal
quotation marks and citation omitted). Second, we will not read into the
statute language that is not there, particularly if it makes sense as written.
Id.
And finally, if “several sections of a statute are involved, they must be read
together so that all parts are given effect.”
Id.
The Firefighter Occupational
Disease Statute Exempts Firefighters in Some Circumstances From Having to
Establish That Firefighting Was the Proximate Cause of Their Disease
{8} The Occupational
Disease Act requires a worker to show a “direct causal connection between the
conditions under which the work is performed and the occupational disease” in
order to recover benefits. Section 52-3-32. Where an employer denies that the
“occupational disease is the material and direct result of the conditions under
which work was performed, the worker must establish that causal connection as a
medical probability by medical expert testimony.”
Id.
{9} The firefighter
occupational disease statute, on the other hand, exempts firefighters in
certain situations from the burden of establishing a causal connection between
their disease and their duties as firefighters. Section 52-3-32.1. The statute
states, “If a firefighter is diagnosed with one or more of the following
diseases after the period of employment indicated, . . . the disease is
presumed to be proximately caused by employment as a firefighter[.]” Section
52-3-32.1(B). In the case of a firefighter developing non-Hodgkin’s lymphoma,
the disease is presumed to be proximately caused by the firefighter’s
occupation after fifteen years of service. Section 52-3-32.1(B)(5).
{10} Employer argues
that, notwithstanding the firefighter occupational disease statute, the
Occupational Disease Act still requires a firefighter to prove medical
causation. Thus, Employer argues that because Worker did not establish with a
reasonable degree of medical probability that his disease was caused by his
years of firefighting, he should be barred from receiving disability benefits.
{11} Employer’s argument
misses the mark. As noted above, the Occupational Disease Act places a burden
on workers to prove that their disease was proximately caused by the hazards of
their employment. Section 52-3-32. The statute requires workers to prove the
causal connection between their occupation and disease “as a medical
probability by medical expert testimony.”
Id. However, when the Legislature
enacted 52-3-32.1 and stated that certain diseases suffered by firefighters
would be “presumed to be proximately caused by employment as a firefighter,” it
made clear that in some circumstances a firefighter would be exempted from the
requirement of establishing the causal connection between certain diseases and
the hazards of firefighting, although that presumption is rebuttable. Section
52-3-32.1(B). Thus, Section 52-3-32.1 essentially reverses the usual burden of
proof under the Occupational Disease Act for a narrow class of workers for
public policy reasons.
{12} These public policy
reasons center around the legislative recognition of the difficulty a
firefighter would have, given the various hazards and toxins firefighters are
exposed to, of establishing the causal connection between firefighting and his
or her disease.
City of Littleton v. Industrial Claim Appeals Office,
2012 COA 187, ¶ 37, ___ P.3d ___, 2012 WL 5360912 (stating that a
firefighter is disadvantaged in proving causation because “[t]here is no way to
know which substances the firefighter encountered at which fire; and even if
there were, there is no way to determine the dose, frequency, and duration of
exposures”). As the WCJ found:
In the course of fighting fires,
firefighters may be exposed to harmful substances. At the fire scene,
firefighters are potentially exposed to various mixtures of particulates,
gases, mists, fumes of an organic and/or inorganic nature[,] and the resultant
pyrolysis products.
A firefighter attempting to causally connect the number and
degree of exposures to these various toxins over the course of his or her
career to a specific disease would therefore be presented with a formidable
barrier to recovery. Wanstrom v. N.D. Workers Comp. Bureau, 2001 ND 21,
¶ 7, 621 N.W.2d 864, 867 (stating that a similar statute’s “purpose is to
relieve firefighters of the nearly impossible burden of proving firefighting
actually caused their disease”).
{13} Estate of George
v. Vermont League of Cities and Towns, is instructive on this point. 2010
VT 1, 187 Vt. 229, 993 A.2d 367. In
Estate of George, the estate of a
firefighter who died of non-Hodgkin’s lymphoma brought a workers’ compensation
action.
Id. ¶ 3. Without the benefit of a statutory presumption similar
to Section 52-3-32.1, the firefighter’s claim in
Estate of George failed
because “[t]here was . . . no evidence as to the frequency of exposure or types
of exposures that [the] claimant may have had.” 2010 VT 1, ¶ 3, 187 Vt. 229,
993 A.2d 367. It is this type of result, which would likely repeat itself in
nearly every Occupational Disease Act case brought by a firefighter, that
likely led the Legislature to reverse the burden of proof for causation in
favor of firefighters.
{14} For these reasons,
Employer’s reliance on statements in
Castillo v. Caprock Pipe & Supply,
Inc., indicating that the disease “must be one due wholly to causes and
conditions which are normal and constantly present and characteristic of the
particular occupation” is inapposite to our conclusion.
2012-NMCA-085, ¶ 5,
285
P.3d 1072 (internal quotation marks and citation omitted). These statements in
Castillo
interpret the proximate causation requirement embodied in Section 52-3-32.
See
Castillo,
2012-NMCA-085, ¶ 4. By enacting the firefighter occupational
disease statute, the Legislature adopted a statutory presumption that the
development of non-Hodgkin’s lymphoma by a firefighter is linked to his or her
service in that role under certain circumstances. Employer’s reliance on
Castillo
and argument that Worker failed to show that his disease “was particular to
firefighting” fails to account for this statutory presumption.
{15} Finally, our
conclusion is buttressed by the inclusion of a provision stating that when one
of the presumptions does not apply, a firefighter is not precluded from
“demonstrating a causal connection between employment and [the] disease or
injury.” Section 52-3-32.1(E). This provision would be redundant if a
firefighter was still required to prove a causal connection even where one of
the presumptions applied. Thus, we conclude that when a firefighter establishes
that he or she is suffering from one or more of the diseases listed in Section
52-3-32.1(B) and that the firefighter served the requisite number of years,
subject to any other requirements under Section 52-3-32.1(B), the firefighter
is entitled to the presumption—albeit rebuttable—that the disease was caused by
his or her employment as a firefighter.
Employer Failed to Rebut the
Presumption That Worker’s Disease Was Causally Connected to Firefighting
{16} Section 52-3-32.1(C)
states that “[t]he presumptions created in Subsection[s] B and D of this
section may be rebutted by a preponderance of evidence . . . showing that the
firefighter engaged in conduct or activities outside of employment that posed a
significant risk of contracting or developing a described disease.” We
understand Employer’s argument to be that it should be allowed to rebut the
presumption with evidence showing a tenuous link between firefighting and the
development of non-Hodgkin’s lymphoma.
{17} Employer’s argument,
however, attacks the statutory presumption itself that occupational hazards
relating to firefighting can cause non-Hodgkin’s lymphoma instead of rebutting
the presumption with evidence that Worker’s non-Hodgkin’s lymphoma was caused
by “conduct or activities outside of employment [by Worker] that posed a
significant risk of contracting or developing [the] disease.”
Id.;
see
Medlin v. Cnty. of Henrico Police, 542 S.E.2d 33, 39 (Va. Ct. App. 2001)
(holding in regard to a similar statute that “evidence that merely rebuts
generally the underlying premise of the statute, which establishes a causal
link between stress and heart disease, is not probative evidence for purposes
of overcoming the presumption”). Because the statutory presumption represents a
legislative determination that there is a causal connection between
firefighting and the development of non-Hodgkin’s lymphoma, no amount of
evidence regarding a possibly tenuous link between non-Hodgkin’s lymphoma and
firefighting is probative to rebut the presumption. Such a determination must
come from legislative amendment, not judicial fiat. In this case, Employer did
not put forth evidence of other activities or conduct by Worker outside of his
employment that posed a significant risk of him contracting this disease.
Accordingly, we conclude that Employer failed to rebut the presumption that
Worker’s disease was causally connected to his years of service as a
firefighter.
Applying the Presumption to This
Case Does Not Constitute a Retroactive Application of the Statute
{18} Section 52-3-32.1(A)
defines a “firefighter” as “a person who is employed as a full-time
non-volunteer firefighter by the state or a local government entity and who has
taken the oath prescribed for firefighters.” This statute became effective in
2010. Worker, although no longer working with the fire department, became
disabled in 2012 and shortly thereafter filed his claim for disability
benefits. Employer argues that because Worker was not working as a firefighter
at the time the firefighter occupational disease statute was enacted, his use
of the statute constitutes a retroactive application of the statutory
presumption. Thus, Employer argues that the statute applies only to
firefighters employed at the time the statute went into effect.
{19} We disagree with
Employer that application of the presumption in this case constitutes a
retroactive application of the statute. “It is well settled that a statute does
not operate retroactively merely because some of the facts or conditions upon
which its application depends came into existence prior to the enactment.”
Hansman
v. Bernalillo Cnty. Assessor,
1980-NMCA-088, ¶ 20,
95 N.M. 697,
625 P.2d
1214 (internal quotation marks and citation omitted). The fact that Worker’s
employment with the fire department occurred before the enactment of Section
52-3-32.1 is not determinative of whether Worker is entitled to the statutory
presumption.
{20} We therefore disagree
with Employer’s argument that the Legislature’s use of the word “is” in the
definition of “firefighter” evidences an intention by the Legislature to limit
the presumption to those firefighters working as firefighters at the time of
the statute’s enactment. The operative context of the definition is to
distinguish between firefighters employed by a state or local government and
volunteer firefighters, not to limit the statutory presumption to firefighters
employed at the time of its enactment. Section 52-3-32.1(A). Furthermore, the
periods of employment necessary to be entitled to the presumption indicate the
Legislature’s awareness of the significant latency period between exposure to
harmful toxins and the development of the diseases listed. Section 52-3-32.1(B)
(requiring between five to fifteen years of employment, depending on the
disease contracted). Construing the statute as Employer argues would mean, in
some circumstances, a similar significant delay between the statute’s enactment
and the “first wave,” so to speak, of firefighters being able to utilize the
presumption. This leads us to conclude that the Legislature intended that
firefighters who became disabled due to one of the occupational diseases listed
were entitled to the presumption—subject, of course, to the other statutory
requirements—even if their terms of employment concluded before the statute’s
enactment.
{21} This conclusion is
supported by the policy underlying our presumption against retroactive
application of statutes. “The presumption is premised upon policy
considerations that individuals, in planning and conducting their business,
should be able to rely with reasonable certainty on existing laws.”
City of
Albuquerque v. State ex rel. Vill. of Los Ranchos de Albuquerque,
1991-NMCA-015,
¶ 37,
111 N.M. 608,
808 P.2d 58. This statute did not affect the underlying
employment relationship between the firefighter and his or her employer. It
only affects the burdens of proof between the respective parties should a
firefighter file for disability benefits. As a result, because Worker filed for
benefits two years after the statute’s enactment, thus implicating the statute,
Employer was aware at the outset of this litigation what its respective burden
was. That is, it knew throughout the course of the litigation that Worker could
be entitled to the statutory presumption that his disease was caused by his
work as a firefighter but that it could produce evidence that Worker’s disease
was caused by conduct or activities outside his employment.
See §
52-3-32.1(B), (C). Thus, the relevant inquiry for determining whether the
statute was being applied retroactively or prospectively is not whether the
firefighter was employed as a firefighter at the time of the statute’s
enactment but rather whether the statute was in existence at the time the
firefighter filed for disability benefits. Because Worker filed for disability
benefits two years after the statute’s enactment, application of the statute
was not retroactive.
The WCJ Misapplied Section
52-3-14 in Calculating the Amount Due Worker
{22} Worker argues that
the WCJ erroneously calculated the amount of compensation he should be awarded.
We agree.
{23} Section 52-3-14(B)
states that “[f]or total disablement, the employee shall receive sixty-six and
two-thirds percent of his average weekly wage, not to exceed . . . a maximum of
one hundred percent of the average weekly wage in the state, a week . . .
during the period of such disablement.” Compensation “paid or payable during
[an] employee’s entire period of disablement shall be based on and limited to
the benefits in effect on the date of the occurrence of the disablement.”
Id.
The WCJ stated, however, that “[p]ursuant to Section 52-3-14 wages utilized for
determining disability benefits are to be based upon the date of the
occurrence” instead of the “date of the occurrence of the disablement.” The WCJ
found that Worker’s “last occurrence as a firefighter was in 2000” and
therefore used the maximum weekly compensation rate for 2000 of $480.47.
{24} The WCJ’s
calculation was incorrect given the language omitted from the statute in the
WCJ’s order. The WCJ determined that Worker became disabled in January 2012.
Therefore, this should have also been the date that the WCJ determined was the
“date of the occurrence of the disablement.” Nowhere does the statute state
that the date of last employment or date of last injurious exposure to the
hazards of the employment is to be used in calculating the amount of the
Worker’s disability benefits.
Compare § 52-3-14(B) (stating that
compensation “paid or payable during [an] employee’s entire period of
disablement shall be based on and limited to the benefits in effect on the date
of the occurrence of the disablement”),
with § 52-3-11 (“Where
compensation is payable for an occupational disease the only employer liable
shall be the employer in whose employment the employee was last injuriously
exposed to the hazards of employment.”). By way of counterpoint, under the
Workers’ Compensation Act, benefits are calculated according to the “date of
the accidental injury resulting in the disability or death.” NMSA 1978, §
52-1-48 (1989). This difference between the two statutes may result from a
legislative recognition of the latency period of occupational diseases, which
may not manifest until many years after the “injurious exposure.” Accordingly,
the January 2012 date of disablement shall be used in determining Worker’s
compensation rate.
{25} For the foregoing
reasons, we affirm the order awarding Worker benefits, reverse the calculation
of benefits, and remand for proceedings consistent with this Opinion.