City of Salem v. Stadeli

The firefighter’s presumption is a rebuttable presumption that employment contributed to the employee's condition or injury. It shifts the burden of production and persuasion onto the employer. To rebut the presumption, the employer must show that the employee’s work was not a fact in consequence “of any amount” in causing the employee’s condition. City of Salem v. Stadeli, 327 Or App 396, __P3d__ (2023). The employer will generally have to “un[-]persuade[]” a tribunal that work was a fact in consequence to the employee’s condition. Id.

Plaintiff was a firefighter of more than 25 years for the City of Salem (employer), and died of tonsillar cancer. He had chewed tobacco for many years. Plaintiff brought an occupational disease claim against employer. An Administrative Law Judge (ALJ) held in favor of employer in plaintiff’s claim. On review, the Worker’s Compensation Board (board) reversed the ALJ’s decision. The issue on appeal was whether the board “properly construed and permissibly applied” the firefighters’ presumption when it reversed the denial of plaintiff’s claim. City of Salem v. Stadeli, 327 Or App 396, __P3d__ (2023). The firefighter’s presumption allows a firefighter to forego the usual standard required to show an employer was at fault for an occupational disease. ORS 656.802(2)(a). Employment is instead presumed to be a contributing cause. ORS 656.802(4), (5). An employer may rebut the claim by clear and convincing medical evidence that the condition was not caused or contributed to, “in material part”, by employment. Id. “In material part” refers to a fact in consequence “without regard to the amount of causation or contribution.” Id; City of Salem v. Stadeli. To rebut the firefighter’s presumption, an employer must show an employee’s work was not a fact in consequence “of any amount” in causing or contributing to employee’s condition. Id. In application of the standard, where claimant proved certain predicate facts, “it [is] presumed that the claimant’s condition resulted from employment as a firefighter.” Id. To rebut that claim, the employer must meet both the burden of production and persuasion. Here, evidence showed expert agreement that HPV caused plaintiff’s cancer, but not that HPV alone caused cancer. The burden of persuasion will generally come down to “whether the evidence was such that the board could reasonably be unpersuaded that firefighting was not a fact of consequence of any amount in causing or contributing to claimant’s cancer.” Id. Unable to rule out plaintiff’s work as an aggravating factor in his disease, the court determined the board properly constructed and permissibly applied the firefighter’s presumption. AFFIRMED.