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Estate of Aikele v. City of Blackfoot

Supreme Court of Idaho

September 13, 2016

THE ESTATE OF: KURT AIKELE (Deceased), Claimant-Appellant,
v.
CITY OF BLACKFOOT, Employer, and IDAHO STATE INSURANCE FUND, Surety, Defendants-Respondents.

         2016 Opinion No. 101

         Appeal from the Industrial Commission.

         Industrial commission decision denying workers compensation benefits, affirmed.

          Curtis & Porter, PA, Idaho Falls, for appellant.

          Andrew A. Adams argued. Fuller & Fuller, PLLC, Preston, for respondents. Steven R. Fuller argued.

          BURDICK, Justice.

         This is 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Kurt 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.

         One of 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 fumes.

         The 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.

         Additionally, 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.

         However, 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 individual cases.

         The 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 claim.

         The 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.

         II. ISSUES ON APPEAL

1. Whether the Commission's findings of fact are clearly erroneous.
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.

         III. STANDARD OF REVIEW

         On 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.

         IV. ANALYSIS

         Aikele 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 statute.

         A. The Commission's holding is supported by substantial ...


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