{ "id": 4241397, "name": "FRANK C. DI LUZIO, Worker-Appellee/Cross-Appellant, v. CITY OF SANTA FE, self-insured, Employer-Appellant/Cross-Appellee", "name_abbreviation": "Di Luzio v. City of Santa Fe", "decision_date": "2015-01-14", "docket_number": "Docket No. 33,446", "first_page": "604", "last_page": "610", "citations": [ { "type": "official", "cite": "2015-NMCA-042" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "111 N.M. 608", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715176 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/111/0608-01" ] }, { "cite": "1991-NMCA-015", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 37" } ], "opinion_index": 0 }, { "cite": "95 N.M. 697", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575518 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/95/0697-01" ] }, { "cite": "1980-NMCA-088", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 20" } ], "opinion_index": 0 }, { "cite": "542 S.E.2d 33", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 524059 ], "year": 2001, "pin_cites": [ { "page": "39", "parenthetical": "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\"" } ], "opinion_index": 0, "case_paths": [ "/va-app/34/0396-01" ] }, { "cite": "285 P.3d 1072", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2012-NMCA-085", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4188809 ], "weight": 2, "pin_cites": [ { "page": "\u00b6 5" }, { "page": "\u00b6 4" } ], "opinion_index": 0, "case_paths": [ "/nm-app/2/0359-01" ] }, { "cite": "2010 VT 1", "category": "reporters:neutral", "reporter": "VT", "case_ids": [ 3697672 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 3" } ], "opinion_index": 0, "case_paths": [ "/vt/187/0229-01" ] }, { "cite": "2001 ND 21", "category": "reporters:state", "reporter": "ND", "case_ids": [ 11077137 ], "weight": 2, "pin_cites": [ { "page": "\u00b6 7" }, { "page": "867" } ], "opinion_index": 0, "case_paths": [ "/nw2d/621/0864-01" ] }, { "cite": "2012 WL 5360912", "category": "reporters:specialty_west", "reporter": "WL", "opinion_index": 0 }, { "cite": "2012 COA 187", "category": "reporters:neutral", "reporter": "COA", "pin_cites": [ { "page": "\u00b6 37" } ], "opinion_index": 0 }, { "cite": "1998-NMSC-050", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 827330 ], "weight": 7, "pin_cites": [ { "page": "\u00b6 5" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0413-01" ] }, { "cite": "121 N.M. 764", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566662 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/121/0764-01" ] }, { "cite": "1996-NMSC-038", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 13" } ], "opinion_index": 0 }, { "cite": "2002-NMSC-020", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 260754 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 16" } ], "opinion_index": 0, "case_paths": [ "/nm/132/0382-01" ] } ], "analysis": { "cardinality": 847, "char_count": 21729, "ocr_confidence": 0.784, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14089026039742086 }, "sha256": "5d931eecdbc66785747aee962c96cf0df889d511feac5ae361f193300712bad2", "simhash": "1:3ed4869ee91f213b", "word_count": 3317 }, "last_updated": "2023-07-14T17:10:55.229683+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "CYNTHIA A. FRY, Judge", "JONATHAN B. SUTIN, Judge", "MICHAEL E. VIGIL, Judge" ], "parties": [ "FRANK C. DI LUZIO, Worker-Appellee/Cross-Appellant, v. CITY OF SANTA FE, self-insured, Employer-Appellant/Cross-Appellee." ], "opinions": [ { "text": "OPINION\nFRY, Judge.\nThis case is on appeal from a workers\u2019 compensation judge\u2019s (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, \u00a7\u00a7 52-3-1 to -60 (1945, as amended through 2013), following his diagnosis with mantle cell non-Hodgkin\u2019s 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\u2019s lymphoma is not caused by firefighting. Worker cross-appeals arguing that the WCJ erred in calculating the rate of disability benefits he is owed.\nIn regard to Employer\u2019s 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\u2019s disease was the result of conduct or activities outside his employment, we conclude that Employer failed to rebut this presumption. See \u00a7 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\u2019s 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.\nBACKGROUND\nWorker 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.\nFollowing 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\u2019s 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.\nWorker 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\u2019s lymphoma is an identified disease and Worker served more than fifteen years as a firefighter. See \u00a7 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\u2019s 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\u2019s award of benefits.\nDISCUSSION\nStandard of Review\nWe begin with Employer\u2019s arguments regarding the WCJ\u2019s application of the firefighter occupational disease statute before considering Worker\u2019s argument regarding the calculation of disability benefits. Both parties\u2019 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, \u00b6 16, 132 N.M. 382, 49 P.3d 61.\n\u201cIn interpreting statutes, we seek to give effect to the Legislature\u2019s intent, and in determining intent we look to the language used and consider the statute\u2019s history and background.\u201d Key v. Chrysler Motors Corp., 1996-NMSC-038, \u00b6 13, 121 N.M. 764, 918 P.2d 350. General principles guide our construction of statutes. First, the \u201cplain language of [the] statute is the primary indicator of legislative intent.\u201d High Ridge Hinkle Joint Venture v. City of Albuquerque, 1998-NMSC-050, \u00b6 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 \u201cseveral sections of a statute are involved, they must be read together so that all parts are given effect.\u201d Id.\nThe Firefighter Occupational Disease Statute Exempts Firefighters in Some Circumstances From Having to Establish That Firefighting Was the Proximate Cause of Their Disease\nThe Occupational Disease Act requires a worker to show a \u201cdirect causal connection between the conditions under which the work is performed and the occupational disease\u201d in .order to recover benefits. Section 52-3-32. Where an employer denies that the \u201coccupational 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.\u201d Id.\nThe 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, \u201cIf 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].]\u201d Section 52-3-32.1(B). In the case of a firefighter developing non-Hodgkin\u2019s lymphoma, the disease is presumed to be proximately caused by the firefighter\u2019s occupation after fifteen years of service. Section 52-3-32.1(B)(5).\nEmployer 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.\nEmployer\u2019s 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 \u201cas a medical probability by medical expert testimony.\u201d Id. However, when the Legislature enacted 52-3-32.1 and stated that certain diseases suffered by firefighters would be \u201cpresumed to be proximately caused by employment as a firefighter,\u201d 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.\nThese 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, \u00b6 37, __ P.3d __, 2012 WL 5360912 (stating that a firefighter is disadvantaged in proving causation because \u201c[tjhere 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\u201d). As the WCJ found:\nIn 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.\nA 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, \u00b6 7, 621 N.W.2d 864, 867 (stating that a similar statute\u2019s \u201cpurpose is to relieve firefighters of the nearly impossible burden of proving firefighting actually caused their disease\u201d).\nEstate 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\u2019s lymphoma brought a workers\u2019 compensation action. Id. \u00b6 3. Without the benefit of a statutory presumption similar to Section 52-3-32.1, the firefighter\u2019s claim in Estate of George failed because \u201c[tjhere was ... no evidence as to the frequency of exposure or types of exposures that [the] claimant may have had.\u201d 2010 VT 1, \u00b6 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.\nFor these reasons, Employer\u2019s reliance on statements in Castillo v. Caprock Pipe & Supply, Inc., indicating that the disease \u201cmust be one due wholly to causes and conditions which are normal and constantly present and characteristic of the particular occupation\u201d is inapposite to our conclusion. 2012-NMCA-085, \u00b6 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, \u00b6 4. By enacting the firefighter occupational disease statute, the Legislature adopted a statutory presumption that the development of non-Hodgkin\u2019s lymphoma by a firefighter is linked to his or her service in that role under certain circumstances. Employer\u2019s reliance on Castillo and argument that Worker failed to show that his disease \u201cwas particular to firefighting\u201d fails to account for this statutory presumption.\nFinally, 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 \u201cdemonstrating a causal connection between employment and [the] disease or injury.\u201d 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 -3 2.1 (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 \u2014 albeit rebuttable \u2014 that the disease was caused by his or her employment as a firefighter.\nEmployer Failed to Rebut the Presumption That Worker\u2019s Disease Was Causally Connected to Firefighting\nSection 52-3-32.1(C) states that \u201c[t]he presumptions created in Subsectionfs] 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.\u201d We understand Employer\u2019s 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\u2019s lymphoma.\nEmployer\u2019s argument, however, attacks the statutory presumption itself that occupational hazards relating to firefighting can cause non-Hodgkin\u2019s lymphoma instead of rebutting the presumption with evidence that Worker\u2019s non-Hodgkin\u2019s lymphoma was caused by \u201cconduct or activities outside of employment [by Worker] that posed a significant risk of contracting or developing [the] disease.\u201d 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 \u201cevidence 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\u201d). Because the statutory presumption represents a legislative determination that there is a causal connection between firefighting and the development of non-Hodgkin\u2019s lymphoma, no amount of evidence regarding a possibly tenuous link between non-Hodgkin\u2019s 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 W orlcer 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\u2019s disease was causally connected to his years of service as a firefighter.\nApplying the Presumption to This Case Does Not Constitute a Retroactive Application of the Statute\nSection 52-3-32.1(A) defines a \u201cfirefighter\u201d as \u201ca 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.\u201d This statute became effective in 2010. W orker, 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.\nWe disagree with Employer that application of the presumption in this case constitutes a retroactive application of the statute. \u201cIt 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.\u201d Hansman v. Bernalillo Cnty. Assessor, 1980-NMCA-088, \u00b6 20, 95 N.M. 697, 625 P.2d 1214 (internal quotation marks and citation omitted). The fact that Worker\u2019s 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.\nWe therefore disagree with Employer\u2019s argument that the Legislature\u2019s use of the word \u201cis\u201d in the definition of \u201cfirefighter\u201d evidences an intention by the Legislature to limit the presumption to those firefighters working as firefighters at the tim\u00e9 of the statute\u2019s 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\u2019s 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\u2019s enactment and the \u201cfirst wave,\u201d so to speak, of firefightqrs 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 \u2014 subject, of course, to the other statutory requirements \u2014 even if their terms of employment concluded before the statute\u2019s enactment.\nThis conclusion is supported by the policy underlying our presumption against retroactive application of statutes. \u201cThe 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.\u201d City of Albuquerque v. State ex rel. Vill. of Los Ranchos de Albuquerque, 1991-NMCA-015, \u00b6 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 \u25a0 disability benefits. As a result, because Worker filed for benefits two years after the statute\u2019s 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\u2019s disease was caused by conduct or activities outside his employment. See \u00a7 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\u2019s enactment but rather whether the statute was in existence at the time the firefighter filed for disability benefits. B ecause Worker filed for disability benefits two years after the statute\u2019s enactment, application of the statute' was not retroactive.\nThe WCJ Misapplied Section 52-3-14 in Calculating the Amount Due Worker\nWorker argues that the WCJ erroneously calculated the amount of compensation he should be awarded. We agree.\nSection 52-3-14(B) states that \u201c[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.\u201d Compensation \u201cpaid or payable during [an] employee\u2019s entire period of disablement shall be based on and limited to the benefits in effect on the date of the occurrence of the disablement.\u201d Id. The WCJ stated, however, that \u201c[p]ursuant to Section 52-3-14 wages utilized for determining disability benefits are to be based upon the date of the occurrence\u201d instead of the \u201cdate of the occurrence of the disablement.\u201d The W C J found that Worker\u2019s \u201clast occurrence as a firefighter was in 2000\u201d and therefore used the maximum weekly compensation rate for 2000 of $480.47.\nThe WCJ\u2019s calculation was incorrect given the language omitted from the statute in the WCJ\u2019s 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 \u201cdate of the occurrence of the disablement.\u201d Nowhere does the statute state that the date of iast employment or date of last injurious exposure to the hazards of the employment is to be used in calculating the amount of the Worker\u2019s disability benefits. Compare \u00a7 52-3-14(B) (stating that compensation \u201cpaid or payable during [an] employee\u2019s entire period of disablement shall be based on and limited to the benefits in effect on the date of the occurrence of the disablement\u201d), with \u00a7 52-3-11 (\u201cWhere 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.\u201d), By way of counterpoint, under the Workers\u2019 Compensation Act, benefits are calculated according to the \u201cdate of the accidental injury resulting in the disability or death.\u201d NMSA 1978, \u00a7 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 \u201cinjurious exposure.\u201d Accordingly, the January 2012 date of disablement shall be used in determining Worker\u2019s compensation rate.\nCONCLUSION\nFor the foregoing reasons, we affirm the order awarding Worker benefits, reverse the calculation of benefits, and remand for proceedings consistent with this Opinion.\nIT IS SO ORDERED.\nCYNTHIA A. FRY, Judge\nWE CONCUR:\nJONATHAN B. SUTIN, Judge\nMICHAEL E. VIGIL, Judge", "type": "majority", "author": "FRY, Judge." } ], "attorneys": [ "Gerald A. Hanrahan Albuquerque, NM for Appellee/Cross-Appellant", "French & Associates Katherine E. Tourek Albuquerque, NM for Appellant/Cross-Appellee" ], "corrections": "", "head_matter": "IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2015-NMCA-042\nFiling Date: January 14, 2015\nDocket No. 33,446\nFRANK C. DI LUZIO, Worker-Appellee/Cross-Appellant, v. CITY OF SANTA FE, self-insured, Employer-Appellant/Cross-Appellee.\nGerald A. Hanrahan Albuquerque, NM for Appellee/Cross-Appellant\nFrench & Associates Katherine E. Tourek Albuquerque, NM for Appellant/Cross-Appellee" }, "file_name": "0604-01", "first_page_order": 620, "last_page_order": 626 }