consolidated cases involve two city of Bellevue (City)
firefighters who were diagnosed with malignant melanoma and
filed claims for workers' compensation benefits. In both
cases, the Board of Industrial Insurance Appeals (Board)
denied the firefighters' claims. Both firefighters then
appealed the Board's decision to King County Superior
the Industrial Insurance Act (IIA), Title 51 RCW, a worker
injured in the course of employment who suffers from an
"occupational disease" is entitled to workers'
compensation benefits. While generally the burden of proof
falls to the worker, there is a statutory presumption that
malignant melanoma in firefighters is occupational. RCW 51,
32, 185(1) (the "firefighter presumption").
parties disagree about various aspects of how-and whether-the
presumption in RCW 51.32.185 should operate when a board
decision is appealed to superior court. We note that RCW
51.32.185 reflects a strong social policy in favor of the
worker and conclude that (1) whether the City rebutted the
firefighter presumption is a factual determination that was
properly given to the jury in Larson, but improperly
decided as a matter of law in Spivey, (2) RCW
51.32.185 shifts both the burden of production and burden of
persuasion to the employer, (3) in Larson, jury
instruction 9 was proper, and (4) Larson is entitled to
attorney fees at the Board level. We thus affirm the Court of
Appeals' decision in Larson and reverse the
trial court's decision in Spivey.
Larson was diagnosed with malignant melanoma (melanoma) in
his lower back in 2009. He had worked as a firefighter and
emergency medical technician for the City since 1979. He
filed a claim with the Department of Labor and Industries
(the Department), seeking coverage for his melanoma as an
occupational disease. The Department allowed the claim,
applying the presumption in RCW 51.32.185(1).
Larson: Appeal to the Board
City appealed to the Board. At a hearing, Larson presented
testimony from a family practice physician/medical legal
consultant who opined that Larson's work as a firefighter
was likely a cause of his melanoma. Larson testified that he
had been exposed to smoke, fumes, soot, and toxic substances
during his firefighting career. However, he admitted on
cross-examination that he sometimes used a tanning bed to get
a "base coat" to prevent sunburns on summer trips.
Verbatim Report of Proceedings (VRP) (Aug. 8, 2013) at 290.
He also acknowledged that he had sometimes engaged in outdoor
activities without wearing a shirt.
City presented testimony from medical professionals and
researchers who indicated that Larson may have developed
melanoma even if he had never worked as a firefighter. The
dermatologist who diagnosed Larson testified that she
suspected "the most contributing factor" to
Larson's melanoma was UV (ultraviolet light) exposure.
VRP (Aug. 13, 2013) at 730-32. Another dermatologist
testified that he believed Larson's melanoma was the
result of "predisposing genetic factors and ultraviolet
light exposure" and that Larson likely would have
contracted melanoma even if he had never worked as a
firefighter. VRP (Aug. 12, 2013) at 608-09. Another witness,
an epidemiologist, analyzed various studies and noted that it
would be inappropriate to conclude that firefighters are at
any increased risk of melanoma.
Board reversed the benefits award, finding that Larson's
melanoma did not arise from distinctive conditions of his
employment as a firefighter.
Larson: Appeal to Superior Court
appealed the Board's decision to the superior court. The
court denied the City's motion for summary judgment, and
the case proceeded to a jury trial on the hearing record. At
the end of testimony, the City orally moved the court to rule
as a matter of law that (1) the City had established by a
preponderance of the evidence that Larson's melanoma came
from factors unrelated to his work as a firefighter and (2)
the City had thus rebutted the firefighter presumption.
According to the City, this would leave one issue only for
the jury to decide: Did Larson prove (now without the benefit
of the firefighter presumption) that his melanoma was an
occupational disease? The court denied the City's motion
and allowed the jury to decide whether the City had rebutted
the firefighter presumption.
court submitted 14 instructions to the jury. Jury instruction
9 explained the burdens of proof applicable at the board
level and at the trial court level. It tracked applicable
Washington Pattern Jury Instructions (WPI), but added a third
paragraph addressing the City's burden of proof at the
prior board proceeding. 6A Washington Practice: Washington
Pattern Jury Instructions: Civil 155.03 (6th ed. 2012) (WPI).
The court also gave the jury a special verdict form that read
QUESTION 1: Was the Board of Industrial Insurance Appeals
correct in deciding that the employer rebutted, by a
preponderance of the evidence, the presumption that
Plaintiffs malignant melanoma was an occupational disease?
ANSWER: __ (Write "yes" or "no")
(INSTRUCTION: If you answered "no" to
Question 1, do not answer any further questions. If you
answered "yes " to Question 1, answer
QUESTION 2: Was the Board of Industrial Insurance Appeals
correct in deciding that the Plaintiff did not prove by a
preponderance of the evidence that his malignant melanoma was
an occupational disease?
ANSWER: __ (Write "yes" or "no").
Papers (CP) (Larson) at 1775-76, The jury answered
"no" to the first question, indicating that the
City had not rebutted the presumption that Larson's
melanoma was an occupational disease. The trial court entered
a judgment in Larson's favor and also awarded Larson
attorney fees and costs incurred before the Board and the
court. The City appealed, and the Court of Appeals affirmed
the trial court. Larson v. Cityof Bellevue, 188
Wn.App. 857, 885, 355 P.3d 331 (2015), review
granted, 184 Wn.2d 1033, 379 P.3d 948 (2016).
Spivey is another Bellevue firefighter who was diagnosed with
melanoma. Like Larson, Spivey filed a claim with the
Department, seeking coverage for his melanoma as an
occupational disease. However, the Department ultimately
denied the claim in 2013.
Spivey: Appeal to the Board
appealed to the Board. At the board hearing, Spivey noted
that none of the City's experts could definitively
exclude firefighting as a cause of melanoma and presented
similar testimony to that in Larson However, Spivey
admitted to having a number of risk factors for melanoma,
including a predominately English heritage, freckles, and a
history of sunburns as a child. He also admitted that he used
a tanning bed "once or twice" in his early
20's. Admin. Record (AR) at 370 (trial transcript at 163,
Apr. 12, 2014).
City presented evidence from the dermatologist who had
diagnosed Spivey's melanoma. She was not aware of any
evidence that would suggest a causal link between soot, ash,
smoke, or toxic substances and his condition. She also
testified that Spivey had certain risk factors for melanoma,
such as freckling on his upper back (where the melanoma was
located). Another doctor performed a medical exam of Spivey
and testified that his melanoma was likely the result of UV
exposure and not work related. The City also presented
testimony from some of the same experts who were used in
Board determined that the City rebutted the firefighter
presumption by proving by a preponderance of the evidence
that Spivey's melanoma was caused by "sun exposure,
not his work activities and exposures." AR at 3. The
Board affirmed the Department's order rejecting
Spivey: Appeal to Superior Court
appealed the Board's decision to superior court. At the
conclusion of its briefing, the City moved for a
determination that whether the City met its burden to rebut
the firefighter presumption "is a question of law to be
decided by the judge." CP (Spivey) at 18, 175.
in Larson, the judge granted the City's motion
(after making a few changes to its wording) and went on to
decide that the City had met its burden to rebut the
presumption of "occupational disease" within the
meaning of RCW 51.32.185. Id., at 175. Thus, the
only remaining issue for trial is whether Spivey proved,
without the benefit of the firefighter presumption, that his
melanoma is "occupational, " In light of the