January 14, 2015 – Frank C. Di Luzio v. City of Santa Fe, No. 33,446

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: 	JANUARY 14, 2015
NO. 33,446
FRANK C. DI LUZIO,
Worker-Appellee/Cross-Appellant,
v.
CITY OF SANTA FE, self-insured,
Employer-Appellant/Cross-Appellee.
APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION
Terry S. Kramer, Workers’ Compensation Judge
Gerald A. Hanrahan
Albuquerque, NM
for Appellee/Cross-Appellant
French & Associates
Katherine E. Tourek
Albuquerque, NM
for Appellant/Cross-Appellee

OPINION
FRY, 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

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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.
BACKGROUND
{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

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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.
DISCUSSION
Standard of Review
{6} 	We begin with Employer’s arguments regarding the WCJ’s application of the
firefighter occupational disease statute before considering Worker’s argument

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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

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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

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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

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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

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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

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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

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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.

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{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

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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

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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

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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

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after the “injurious exposure.” Accordingly, the January 2012 date of disablement
shall be used in determining Worker’s compensation rate.
CONCLUSION
{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.
{26} 	IT IS SO ORDERED.
CYNTHIA A. FRY, Judge
WE CONCUR:
JONATHAN B. SUTIN, Judge
MICHAEL E. VIGIL, Judge