Opinion No. 101
from the Industrial Commission.
commission decision denying workers compensation benefits,
& Porter, PA, Idaho Falls, for appellant.
A. Adams argued. Fuller & Fuller, PLLC, Preston, for
respondents. Steven R. Fuller argued.
an appeal of the Idaho Industrial Commission's Decision
and Order holding that Aikele was not entitled to
workers' compensation benefits because he failed to prove
that his occupation caused him to develop lung cancer. We
affirm the Industrial Commission's order.
FACTUAL AND PROCEDURAL BACKGROUND
Aikele worked as a firefighter for the City of Blackfoot for
twenty-six years. In December 2008, Aikele was diagnosed with
adenocarcinoma of the lung, which caused his death on
December 8, 2012. Before his death, Aikele filed a
workers' compensation claim (later amended to include
death benefits), arguing that as a lifelong non-smoker with
no known genetic predisposition for lung cancer, his disease
was likely caused by on-the-job exposure to carcinogens.
Aikele's duties was to regularly participate in the
"mop-up" process, which required cleaning up the
fire area after the fire was out and looking for hot spots
under smoldering debris. According to Dr. Dane Dickson,
Aikele's treating oncologist, Aikele wore a
self-contained breathing apparatus (SCBA) during active
fires, but not during mop-up. Dr. Dickson also testified that
Aikele spent "many, many hours" in a
poorly-ventilated fire station garage breathing diesel engine
Idaho State Insurance Fund submitted two experts'
conclusions to the Commission. The first, George Pfoertner,
M.D., reviewed Aikele's medical records and scientific
literature addressing cancer among firefighters. Dr.
Pfoertner concluded it was "more probable than not"
that Aikele's cancer was unrelated to his work. The
second expert consulted, oncologist Norman Zuckerman, M.D.,
reviewed Aikele's medical records and performed an
independent medical exam. Dr. Zuckerman concluded that
Aikele's cancer was "unlikely to be related to his
occupation as a firefighter." He also produced a copy of
a meta-analysis of thirty-two scientific studies of cancer
risk in firefighters, which he opined was the "best and
most thorough" available. The meta-analysis concluded
that firefighters have no greater risk of developing lung
cancer than the general population. Additionally, Dr.
Zuckerman testified that it was impossible to determine what
caused Aikele's cancer without more information about his
exposure to potential carcinogens, in part because around
fifteen percent of lung cancers occur in non-smokers with no
occupational risk factors.
at the hearing before the Industrial Commission Referee,
Aikele's supervisor, Kevin Gray, testified that although
department policy required firefighters to wear SCBAs while
responding to fires, individual preference often determined
whether they were worn during mop-up. Gray also stated that
the fire department installed a ventilation system for the
diesel-powered equipment several years ago. Before that, it
was standard procedure to open the bay doors while the
equipment was running. Nonetheless, Gray said he did not
notice any diesel odor in the firehouse's living areas.
Dr. Dickson repeatedly opined that he believed Aikele's
occupation caused his cancer and wrote that "I feel the
review I have done . . . is enough to say there can be a
presumptive risk of cancer although it may not be enough to
establish a definitive relationship." Additionally,
after Dr. Dickson noted it was impossible to be certain what
caused Aikele's cancer, he wrote that "I readily
admit that I am not an expert in this field, but feel
strongly that there is more than a casual relationship
between [Aikele's] occupation and the possible
development of his malignancy." Dr. Dickson also
questioned the meta-analysis's applicability because it
did not state whether the firefighters studied performed the
same work as Aikele, particularly mop-up. Instead, Dr.
Dickson testified that his opinion was based on what he knew
about Aikele's individual case and cautioned against
overreliance on meta-analyses because their focus on large
collections of data makes them difficult to apply to
Commission's Referee held a hearing on December 4, 2013,
to determine if Aikele's occupation caused his cancer and
concluded that Aikele failed to demonstrate a causal
relationship between the two. On October 22, 2014, the
Industrial Commission issued its own Findings of Fact and
Conclusions of Law and entered an Order denying Aikele's
Commission was persuaded by Dr. Zuckerman's explanation
of the meta-analysis's conclusion because he
"particularly identified both general and specific
factors which support his opinion." Additionally, the
Commission found that Dr. Dickson lacked "a factual
basis . . . to support his opinion" and his testimony
demonstrated "willingness to abandon science in favor of
his emotional wish on [Aikele's] behalf." The
Commission also determined that Chief Gray's testimony
contradicted Aikele's claim that he inhaled diesel fumes
inside the firehouse for eighteen years before the
ventilation system's installation. Further, the
Commission found that Aikele "initially reported to
physicians that he 'always' used personal protective
equipment, " and only added later that he did not always
do so during the mop-up phase. The Commission concluded the
lack of details regarding what chemicals and in what amounts
Aikele was exposed to, as well as the fact that no other
Blackfoot firefighter had developed cancer, favored Dr.
Zuckerman's and Dr. Pfoertner's opinions. To
"fill these gaps and find for compensability, " the
Commission reasoned it would be "forced to make
assumptions favorable to [Aikele]." As a result, the
Commission held that Aikele did not meet "his burden of
proving that it is more probable than not" that his work
caused his lung cancer and thus "failed to meet the
requirements of Idaho Workers' Compensation Law."
Aikele timely filed this appeal on November 20, 2014.
ISSUES ON APPEAL
1. Whether the Commission's findings of fact are clearly
2. Whether the Commission's order is supported by
substantial and competent evidence.
3. Whether the Commission's application of Idaho Code
section 72-438(12) is erroneous as a matter of law.
4. Whether Aikele is entitled to attorney's fees.
STANDARD OF REVIEW
appeal, this Court reviews "whether the Commission's
findings of fact are supported by substantial and competent
evidence, " but freely reviews its legal conclusions.
Shubert v. Macy's W., Inc., 158 Idaho 92, 98,
343 P.3d 1099, 1105 (2015), abrogated on other grounds by
Chavez v. Stokes, 158 Idaho 793, 353 P.3d 414 (2015).
"Substantial and competent evidence is relevant evidence
which a reasonable mind might accept to support a
conclusion." Id. "We will not disturb the
Commission's findings on the weight and credibility of
the evidence unless those conclusions are clearly erroneous,
" id., nor will this Court "re-weigh the
evidence or consider whether we would have drawn a different
conclusion from the evidence presented." Watson v.
Joslin Millwork, Inc., 149 Idaho 850, 854, 243 P.3d 666,
670 (2010). All facts and inferences are viewed in the
"light most favorable to the party who prevailed before
the Commission." Hamilton v. Alpha Servs., 158
Idaho 683, 688, 351 P.3d 611, 616 (2015). However,
workers' compensation laws are liberally construed
"in favor of the employee, in order to serve the humane
purpose" behind the law. Id.
argues the Commission's decision is not supported by
substantial and competent evidence because several of its
factual findings are clearly erroneous. He also contends the
Commission erred because Idaho Code section 72-438(12)
establishes that a firefighter's lung cancer is
compensable as a matter of law and to hold otherwise would
bar other firefighters with cancer from recovering under the
The Commission's holding is supported by substantial ...