estoppel and res judicata are common law doctrines that were,
for centuries, applied solely to common law claims. The
twentieth century rise of the administrative state brought
with it an explosion of executive branch quasi-judicial
decision-making. Eventually, the urge to apply common law
principles in these otherwise statutorily-created forums
proved irresistible. But the apples to oranges application of
common law doctrines to statutory claims litigated in
executive branch forums was-by its very nature- never
guaranteed universal success. Many times, such applications
fit nicely and a sound and fair resolution was achieved.
Other times, however, the apples to oranges application
resulted in a distasteful fruit salad of injustice. This case
falls into the latter category.
Weaver, a long-time Everett firefighter, applied for
compensation resulting from that which he alleged-and the law
presumes-to be a work-related occupational disease.
Weaver's petition is serious to him and his family; he
suffers from brain cancer that has made it impossible for him
to work and that will ultimately claim his life. The Board of
Industrial Insurance Appeals ruled that either collateral
estoppel or res judicata barred his claim. The superior court
unfortunately adopted the same either/or analysis and also
unfortunately ruled that Weaver's application was barred.
But a careful review of these two distinct common law
doctrines-conducted pursuant to the analytical framework
mandated by our Supreme Court-reveals that neither doctrine,
properly applied, bars Weaver's entreaty. Accordingly, we
Weaver was employed between 1996 and 2014 by the City of
Everett (the City) as a firefighter. In June 2011, Weaver
noticed a mole on the skin of his left shoulder. The mole was
removed and the resulting biopsy revealed that it contained a
thereafter, Weaver underwent surgery to remove the melanoma.
After a period of recovery, Weaver returned to his employment
as a firefighter. The treatment and surgery caused Weaver to
miss nearly five weeks of work, losing the opportunity to
earn just under $10, 000 in wages.
in recovery, in July 2011, Weaver filed a pro se application
for temporary total disability benefits from the City, a
self-insured entity for workers' compensation purposes.
His application alleged that the malignant melanoma on his
shoulder arose from his 15 years of working as a firefighter.
He requested compensation for the nearly 5 weeks of wages
that he had been unable to earn due to the medical treatment.
initially granting Weaver's application, the Department
of Labor and Industries (the Department) reconsidered its
decision and denied his application. Thereafter, Weaver,
through counsel, appealed the Department's denial order
to the Board of Industrial Insurance Appeals (the Board). A
hearing before an administrative law judge (ALJ) resulted.
The City presented the published deposition testimony of two
medical specialists, Dr. Robert Levenson, an oncologist, and
Dr. John Hackett, a dermatologist.
counsel, presumably due to monetary considerations, chose not
to present the testimony of Dr. David Aboulafia, Weaver's
treating oncologist. Nor did Weaver's attorney present
testimony from a medical expert in oncology or
dermatology. Instead, Weaver's counsel presented
the published deposition testimony of Dr. Kenneth Coleman, a
doctor with a practice in family and emergency medicine, but
with no expertise in melanoma generally or in melanoma
arising from occupational exposures specifically.
recommended that the Board affirm the Department's order
denying Weaver's application. In February 2013, the Board
adopted the ALJ's recommendation and issued a final order
denying Weaver's application.
the Board's ruling, Weaver's counsel withdrew. Weaver
filed a pro se review petition in the superior court. Ten
months later, with Weaver still unrepresented and no progress
being made in the appeal, the parties entered into a
stipulation and agreed order of dismissal. Weaver's
petition for review was dismissed in late 2013.
January 2014, Weaver began to have difficulty with mental
processing and word finding. A magnetic resonance imaging
test revealed a three-centimeter mass, a tumor, in the left
frontal lobe of his brain.
immediately underwent surgery and the tumor was removed. The
resulting biopsy diagnosed the tumor as a metastatic
malignant melanoma, a form of cancer developing out of a
primary cancer site. The logical conclusion was that the
brain tumor had metastasized out of the malignant melanoma
that Weaver noticed on his shoulder in 2011.
did not return to work as a firefighter after the surgery. He
was estimated to have a 20 to 30 percent chance of survival
over the next two years.
2014, Weaver, now represented by counsel, submitted an
application for workers' compensation from the City,
seeking permanent total disability benefits. The application
alleged that he suffered from a malignant melanoma located on
his "upper back/scapula area, w/ cancer spreading to
brain." He alleged that the condition arose from
"sun exposure during outdoor firefighting and training
from 1996 forward."
Department denied Weaver's application on the basis that
it had already rejected his application for compensation
based on the malignant melanoma discovered on his shoulder
and that the metastasized melanoma had arisen from the
sought an administrative appeal and, in the resulting
proceeding, the ALJ recommended that the Board affirm the
Department's rejection of Weaver's application for
permanent total disability benefits. The executive branch
official concluded that the common law doctrines of res
judicata and collateral estoppel barred Weaver's
application. The board, an executive branch agency, adopted
the ALJ's proposed decision and order as its final
filed a notice of appeal to the superior court. The superior
court affirmed the Board's order and denied Weaver's
petition, ruling that either collateral estoppel or res
judicata barred his claim.
necessary for us to determine whether the superior court
erred by affirming the Board's application of the
doctrines of collateral estoppel and res judicata to bar
Weaver from pursuing his claim for compensation under the
Industrial Insurance Act, Title 51 RCW.
outset, we note that collateral estoppel and res judicata are
equitable, court-created doctrines established at common law.
See J.M. Weatherwax Lumber Co. v. Ray, 38 Wash. 545,
80 P. 775 (1905); see also Phillip A. Trautman,
Claim and Issue Preclusion in Civil Litigation in
Washington, 60 Wash.L.Rev. 805, 806, 842 (1985). We
further note that the Industrial Insurance Act, as set forth
below, was enacted by our legislature in 1911 with the intent
to abolish the common law cause of action then-available to
workers and establish in its place a distinct statutory
scheme aimed at providing workers "sure and certain
relief." Laws of 1911, ch. 74, § 1, at 345.
in resolving the matter before us, we proceed with due
caution so as to not unduly shoehorn common law concepts into
a statutory scheme wherein our legislature did not
specifically call for them to apply or may not otherwise have
intended for their application.
estoppel and res judicata are affirmative defenses.
Lemond v. Dep't of Licensing, 143 Wn.App. 797,
805, 180 P.3d 829 (2008) (collateral estoppel) (quoting
State Farm Mut. Auto. Ins. Co. v. Avery, 114 Wn.App.
299, 304, 57 P.3d 300 (2002)); Davignon v. Clemmey,
322 F.3d 1, 17 (1st Cir. 2003) (res judicata). The proponent
of either doctrine has the burden of proof. Lemond,
143 Wn.App. at 805 (quoting State Farm Mut. Auto. Ins.
Co., 114 Wn.App. at 304); Davignon, 322 F.3d at
collateral estoppel or res judicata apply to preclude
litigation is a question of law that we review de novo.
Lemond, 143 Wn.App. at 803 (collateral estoppel)
(citing State v. Vasquez, 109 Wn.App. 310, 314, 34
P.3d 1255 (2001), aff'd, 148 Wn.2d 303, 59 P.3d
648 (2002)); Lynn v. Dep't of Labor &
Indus., 130 Wn.App. 829, 837, 125 P.3d 202 (2005) (res
judicata) (citing Kuhlman v. Thomas, 78 Wn.App. 115,
119-20, 897 P.2d 365 (1995)). In reviewing a superior court
ruling in a workers' compensation matter, we apply a
standard of review akin to our review of any other superior
court trial judgment. Rogers v. Dep't of Labor &
Indus., 151 Wn.App. 174, 180-81, 210 P.3d 355 (2009).
appeal, both the Department and the City urge us to affirm
the decision of the superior court on the basis that they
established that collateral estoppel and res judicata apply
to preclude litigation on Weaver's
application.We address each doctrine in turn.
initial matter, the Department and the City contend that they
established that collateral estoppel bars Weaver's
application for permanent total disability benefits. We
principles underlying the common law doctrine of collateral
estoppel are well set forth in our opinion in
Collateral estoppel "'prevents relitigation of an
issue after the party estopped has had a full and fair
opportunity to present its case.'" Barr v.
Day. 124 Wn.2d 318, 324-25, 879 P.2d 912 (1994) (quoting
Hanson v. City of Snohomish, 121 Wn.2d 552, 561, 852
P.2d 295 (1993)). Collateral estoppel, or issue preclusion,
is the applicable preclusive principle when "the
subsequent suit involves a different claim but the same
issue." Phillip A. Trautman, Claim and Issue
Preclusion in Civil Litigation in Washington, 60
Wash.L.Rev. 805 (1985). Thus,
[w]hen an issue of fact or law is actually litigated and
determined by a valid and final judgment, and the
determination is essential to the judgment, the determination
is conclusive in a subsequent action between the parties,
whether on the same or a different claim.
Restatement (Second) of Judgments § 27 (1982).
Collateral estoppel prevents relitigation of issues in a
subsequent claim or cause of action, whereas res judicata
prevents a second assertion of the same claim or cause of
action. Seattle-First Nat'l Bank v. Kawachi, 91
Wn.2d 223, 225-26, 588 P.2d 725 (1978). Thus, res judicata is
generally referred to as claim preclusion, and collateral
estoppel as issue preclusion. Trautman, supra, at
The purpose of the doctrine of collateral estoppel is to
promote judicial economy by avoiding relitigation of the same
issue, to afford the parties the assurance of finality of
judicial determinations, and to prevent harassment of and
inconvenience to litigants. Hanson, 121 Wn.2d at
561. These purposes are balanced against the important
competing interest of not depriving a litigant of the
opportunity to adequately argue the case in court.
Restatement, supra, § 27 cmt. c. at 252.
The proponent of the application of the doctrine has the
burden of proving four elements to demonstrate the necessity
of its applicability:
"(1) the issue decided in the prior adjudication is
identical with the one presented in the second action; (2)
the prior adjudication must have ended in a final judgment on
the merits; (3) the party against whom the plea is asserted
was a party or in privity with the party to the prior
adjudication; and (4) application of the doctrine does
not work an injustice."
Thompson v. Dep't of Licensing, 138 Wn.2d 783,
790, 982 P.2d 601 (1999) (quoting Nielson v. Spanaway
Gen. Med. Clinic, Inc., 135 Wn.2d 255, 262-63, 956 P.2d
312 (1998)). Because all four elements must be proved, the
proponent's failure to establish any one element is fatal
to the proponent's claim.
143 Wn.App. at 803-05 (emphasis added).
the Department has established the first three elements of
collateral estoppel. Both of Weaver's applications for
compensation regarded the identical issue of whether the
malignant melanoma diagnosed on his left shoulder was caused
by his employment as a firefighter. In addition, Weaver's
application for temporary total disability benefits ended in
a final judgment on the merits (the dismissal of his appeal).
Additionally, the Department and the City were both parties
to Weaver's application for temporary total disability
remaining question is whether the Department and the City
proved the fourth element of collateral estoppel-that
application of the doctrine would not work an injustice
estoppel is, in the end, an equitable doctrine that will not
be applied mechanically to work an injustice."
Hadley v. Maxwell, 144 Wn.2d 306, 315, 27 P.3d 600
(2001). Application of the doctrine works an injustice upon a
party when, during an earlier proceeding, that party did not
have a '"full and fair opportunity'" to
litigate the contested issue. Lemond, 143 Wn.App. at
803-04 (internal quotation marks omitted) (quoting Barr, 124
Wn.2d at 324-25). Indeed, for collateral estoppel to apply,
the party must have had "sufficient motivation for a
full and vigorous litigation of the issue."
Hadley, 144 Wn.2d at 315.
Supreme Court's decision in Hadley is both
controlling and instructive. In Hadley, two
automobiles collided with one another. One of the drivers,
Helen Maxwell, was issued a $95 citation for an improper
lane-travel traffic infraction. Thereafter, Maxwell, pro se,
unsuccessfully contested the citation before the district
court. She did not call any witnesses on her behalf nor did
she elect to appeal the district court's adverse decision
to the superior court. Hadley, 144 Wn.2d at 308-09.
In a subsequent personal injury lawsuit arising from the
collision, the trial court ruled that Maxwell was
collaterally estopped from denying her violation of the lane
change statute. This was so, the trial court ruled, because
Maxwell failed to appeal the district court's decision
that she had committed the infraction. Hadley, 144
Wn.2d at 309-10. In the resulting trial, Maxwell was found
liable for $136, 000 in damages. Hadley, 144 Wn.2d
to our Supreme Court, Maxwell challenged the collateral
estoppel ruling on the basis that its application constituted
an injustice. As the court explained:
To determine whether an injustice will be done, respected
authorities urge us to consider whether "the party
against whom the estoppel is asserted [had] interests at
stake that would call for a full litigational effort."
14 Lewis H. Orland & Karl B. Tegland, Washington
Practice: Trial Practice, Civil § 373, at 763 (5th
ed.1996); see also Parklane hosiery Co. v. Shore],
439 U.S. [322, ] 33O[, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979)]
(holding incentive to vigorously contest cases with small or
nominal damages at stake could be a reason not to apply
collateral estoppel); Beale v. Speck, 127 Idaho 521,
903 P.2d 110, 119 (1995) (holding collateral estoppel for
misdemeanor traffic offenses generally inappropriate);
Rice v. Massalone, 554 N.Y.S.2d 294, 160 A.D.2d 861
(1990) (holding collateral estoppel inappropriate after an
administrative determination of liability for a traffic
Hadley, 144 Wn.2d at 312. The Supreme Court adopted
this consideration and instructed that collateral estoppel
"is not generally appropriate when there is nothing more
at stake than a nominal fine." Hadley, 144
Wn.2d at 315. Turning to Maxwell's circumstance, the
court determined that "the incentive to litigate was
low-Maxwell was at risk $95." Hadley, 144 Wn.2d
at 312. The court accordingly ruled that, in the district
court proceeding, Maxwell lacked sufficient motivation to
fully and vigorously litigate whether she, in fact, committed
the traffic infraction. Thus, the Supreme Court held, the
superior court erred by precluding her from contesting that
issue at the subsequent civil trial.
circumstances are strikingly similar to those in
Hadley. As with Maxwell's nominal incentive to
litigate a $95 citation before the district court,
Weaver's incentive to fully and vigorously litigate
during the proceeding on his application for temporary
compensation was low. Indeed, Weaver's initial
application for compensation sought only temporary total
disability benefits, those wages equivalent to five weeks of
missed work. Weaver anticipated that he would-and he
did-return to his duties as a firefighter after completing
his recovery. He was not then, as he is now, confronted by a
brain cancer that is alleged to have left him permanently
disabled, unable to work, with significant out-of-pocket
medical expenses, and with a real possibility of death
arising from the cancer.
that Weaver had less than $10, 000 in benefits at stake
during his application for temporary compensation further
informs our inquiry. Indeed, had Weaver retained a specialist
in oncology or dermatology (or both), the cost of doing so
might rival-or perhaps even eclipse-the modest benefit amount
that he sought and, if his efforts ...