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Weaver v. City of Everett

Supreme Court of Washington, En Banc

October 17, 2019

MICHAEL WEAVER, Respondent,
v.
CITY OF EVERETT and STATE OF WASHINGTON, DEPARTMENT OF LABOR & INDUSTRIES, Petitioners.

          OWENS, J.

         A firefighter contracted melanoma and filed a temporary disability claim, which the Department of Labor and Industries (Department) denied, finding that the melanoma was not work related. Later, the melanoma spread to the firefighter's brain, and he filed a permanent disability claim, which the Department denied as precluded by denial of the temporary disability claim. We are asked to decide whether the equitable doctrines of collateral estoppel and res judicata properly preclude the firefighter's permanent disability claim. We hold that collateral estoppel does not apply because the doctrine would work an injustice in this situation, given that the firefighter did not have sufficient incentive to fully and vigorously litigate the temporary disability claim in light of the disparity of relief between the two claims. We likewise hold that res judicata does not apply because the two claims do not share identical subject matter, given that the permanent disability claim did not exist at the time of the temporary disability claim. Accordingly, we affirm the Court of Appeals.

         FACTS

         Michael Weaver worked as a firefighter paramedic for the City of Everett (City) from 1996 until 2014, when malignant metastatic melanoma halted his ability to work.

         I. Temporary Disability Claim

         Weaver was originally diagnosed with melanoma in 2011, when an irregular mole on his upper back was found to be cancerous. Weaver underwent surgery, which he thought "cured" his melanoma. Administrative Record (AR) at 47.

         Believing that his melanoma was work related, Weaver filed an application with the Department for temporary disability benefits for the five weeks of work that he missed during surgery and recovery. His claim consisted solely of lost wages worth approximately $10, 000. The Department initially granted Weaver's claim, but the City protested the order and hired two doctors specializing in cancer treatment and dermatology to perform independent medical examinations of Weaver. The Department reversed its initial order, concluding that Weaver's "condition is not an occupational disease." AR at 278. Weaver retained counsel to appeal the Department's denial to the Industrial Insurance Appeals Board (Board).

         Weaver's counsel purportedly did not explain the appeal process to Weaver or prepare him for the hearing before an administrative law judge (ALJ) and arrived 90 minutes late to the hearing. Weaver's sole expert witness was a family physician who had not treated, examined, or met Weaver. The physician opined in deposition to an affirmative causal correlation between firefighters' occupational chemical exposure and melanoma. Both doctors whom the City had hired to examine Weaver opined that Weaver's cancer was likely due to sun exposure as a child rather than occupational exposure as a firefighter. Weaver's treating oncologist was not called to testify.

         The ALJ concluded that the City had rebutted the statutory presumption of occupational disease and affirmed the Department's denial of Weaver's claim. The Board adopted the ALJ's order and denied Weaver's petition for review. Weaver's counsel withdrew from representation, and Weaver filed a pro se appeal in superior court. Months later, lacking professional assistance or knowledge of how to pursue the appeal, Weaver signed an agreed order of dismissal prepared by the City.

         II. Permanent Disability Claim

         In January 2014, Weaver began having trouble recalling words. A brain scan revealed a tumor, which was confirmed to be metastatic melanoma. Weaver does not dispute that the brain tumor was a metastasis of the same melanoma at issue in his temporary disability claim. Weaver's treating oncologist estimated in 2015 that Weaver had a 20-30 percent chance of surviving two more years and opined that the metastatic melanoma would likely cause his death.

         Unable to continue working, Weaver filed a permanent disability benefits claim. The total amount of pension benefits that Weaver sought was estimated at greater than $2 million: more than $5, 000 per month, which his wife would continue to receive for the rest of her life to support their three minor children. The Department rejected Weaver's claim, reasoning that the "claim was filed for the same cancer that was denied previously." AR at 270. Assisted by new counsel, Weaver appealed to the Board. The City moved for summary judgment, arguing that Weaver's claim was precluded by collateral estoppel and res judicata. At a hearing before an ALJ, Weaver's counsel introduced declarations from Weaver's treating oncologist and a physician specializing in occupational medicine among firefighters: both opined that Weaver's sun exposure as a firefighter was a cause of his melanoma. The ALJ affirmed denial of Weaver's claim and granted the City's motion for summary judgment, concluding that collateral estoppel applied as a matter of law. The Board adopted the ALJ's order and denied Weaver's petition for review.

         Weaver appealed to the superior court, which affirmed the Board's order. Weaver then appealed to the Court of Appeals, which reversed, holding that neither collateral estoppel nor res judicata applied because preclusion would work an injustice and the subject matter of the two claims was not identical. Weaver v. City of Everett, 4 Wn.App. 2D 303, 421 P.3d 1013 (2018). The City and the Department each petitioned this court for review, which was granted. Weaver v. City of Everett, 192 Wn.2d 1001 (2018).

         ISSUES

         I. Does collateral estoppel preclude the issue of whether Weaver's melanoma is an occupational disease for ...


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