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Spivey v. City of Bellevue

Supreme Court of Washington, En Banc

February 9, 2017

DELMIS SPIVEY, Petitioner,
v.
CITY OF BELLEVUE and DEPARTMENT OF LABOR AND INDUSTRIES, Respondents. WILFRED A. LARSON, Respondent,
v.
CITY OF BELLEVUE, Petitioner, and DEPARTMENT OF LABOR AND INDUSTRIES, Defendant.

          OWENS, J.

         These 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 Court.

         Under 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").

         The 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.

         FACTS

         A. Larson

         Wilfred 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).

         i. Larson: Appeal to the Board

         The 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.

         The 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.

         The Board reversed the benefits award, finding that Larson's melanoma did not arise from distinctive conditions of his employment as a firefighter.

         ii. Larson: Appeal to Superior Court

         Larson 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.

         The 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 as follows:

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.)
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").

         Clerk's 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).

         B. Spivey

         Delmis 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.

         i. Spivey: Appeal to the Board

         Spivey 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[1] 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).

         The 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 Larson.

         The 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's claim.

         ii. Spivey: Appeal to Superior Court

         Spivey 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.

         Unlike in Larson, the judge granted the City's motion (after making a few changes to its wording)[2] 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 ...


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