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,/ ' --F-1-~E ' ltl CLERKS OFFICE " IUPREME COURT, GT~lf WASHiNli9ft This opinion was filed for record 09 DATE ZU17 at g: ~ Nf\!': on-~ ~ 2JH] '-jr~r&Z ~W-
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
DELMIS SPIVEY, ) ) Petitioner, ) No. 91680-2 (consolidated with v. ) No. 92197-1) ) CITY OF BELLEVUE and DEPARTMENT ) OF LABOR AND INDUSTRIES, ) En Bane ) Respondents. ) __________________________) Filed FEB 0 9 2017 ) WILFRED A. LARSON, ) ) Respondent, ) ) v. ) ) CITY OF BELLEVUE, ) ) Petitioner, ) ) and ) ) DEPARTMENT OF LABOR AND ) INDUSTRIES, ) ) Defendant. ) ____________________________) For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Spivey v. City of Bellevue/Larson v. City of Bellevue No. 91680-2
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
2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Spivey v. City of Bellevue/Larson v. City of Bellevue No. 91680-2
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).
1. 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 ofProceedings (VRP) (Aug. 8, 2013) at 290. He also
3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Spivey v. City of Bellevue/Larson v. City of Bellevue No. 91680-2
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.
11. 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
4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Spivey v. City of Bellevue/Larson v. City of Bellevue No. 91680-2
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")
5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Spivey v. City of Bellevue/Larson v. City of Bellevue No. 91680-2
(INSTRUCTION: If you answered "no" to Question 1, do not answer any further questions. If you answered iiyes" 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. City of 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.
6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Spivey v. City ofBellevue/Larson v. City of Bellevue No. 91680-2
1. 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
1 Spivey was represented by the same attorney as Larson.
7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Spivey v. City ofBellevue/Larson v. City of Bellevue No. 91680-2
by "sun exposure, not his work activities and exposures." AR at 3. The Board
affirmed the Department's order rejecting Spivey's claim.
n. 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 ofRCW
51.32.185. !d. 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 court's order, the City filed motions in limine to
preclude comments, arguments, or references to RCW 51.32.185.
2 The original language in the City's proposed order read, "[W]hether the City met its burden of production to rebut the presumption of occupational disease within the meaning ofRCW 51.32.185 is a question of law to be decided by the judge." CP (Spivey) at 175. The language in the order revised and signed by the judge stated that "the City has met its burden to rebut the presumption of occupational disease within the meaning ofRCW 51.32.185." !d. The record is inconclusive as to why the judge made these changes before signing.
8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Spivey v. City of Bellevue/Larson v. City of Bellevue No. 91680-2
111. Petition for Review (Larson)/Motion for Discretionary Review (Spivey)
In Spivey, the firefighter moved for discretionary review of the superior
court's decision that as a matter of law, the City had rebutted the presumption that
melanoma in firefighters is an occupational disease. In Larson, the City petitioned
for review of the Court of Appeals' decision to allow the rebuttal question go to the
jury. It also challenged various aspects of jury instruction 9 and the trial court's
award of attorney fees to Larson for litigating his claim at the board level.
We granted the petition and the motion and consolidated the two cases.
Order Granting Review and Consolidation, Spivey v. City ofBellevue, No. 91680-
2, consolidated with No. 92197-1 (Wash. Feb. 10, 2016). The matters are
consolidated under Supreme Court cause no. 91680-2. 184 Wn.2d 1033. The
remainder of Spivey's trial is pending.
ISSUES
1. Is the question of whether the City rebutted the firefighter
presumption one of law or fact?
2. In Larson, did jury instruction 9 properly inform the jury of the
applicable burden of proof?
3. Was Larson entitled to attorney fees and costs for expenses he
incurred at the board level, where he did not prevail?
9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Spivey v. City of Bellevue/Larson v. City of Bellevue No. 91680-2
ANALYSIS
Here, we are asked to interpret sections of the IIA. Statutory interpretation
is a question of law that this court reviews de novo. Cockle v. Dep 't of Labor &
Indus., 142 Wn.2d 801, 807, 16 P.3d 583 (2001). The IIA is remedial in nature,
and thus we must construe it "liberally ... in order to achieve its purpose of
providing compensation to all covered employees injured in their employment,
with doubts resolved in favor of the worker." Dennis v. Dep 't of Labor & Indus.,
109 Wn.2d 467, 470, 745 P.2d 1295 (1987).
A. RCW 51.32.185: Occupational Disease Presumption for Firefighters
In general, the burden of proving an occupational disease under the IIA falls
to the worker. Gorre v. City ofTacoma, 184 Wn.2d 30, 36, 357 P.3d 625 (2015);
Olympia Brewing Co. v. Dep't of Labor & Indus., 34 Wn.2d 498, 505,208 P.2d
1181 (1949), overruled in part by Windust v. Dep 't ofLabor & Indus., 52 Wn.2d
33, 323 P.2d 241 (1958). An "occupational disease" is defined as a disease or
infection that arises "naturally and proximately" out of employment. RCW
51.08.140. Thus, to receive benefits, a worker must show that his or her injury
arose from employment.
However, there is a statutory prima facie presumption that melanoma in
firefighters is an occupational disease for workers' compensation purposes. RCW
10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Spivey v. City of Bellevue/Larson v. City of Bellevue No. 91680-2
51.32.185(1)(c), (3). This presumption can be rebutted by a preponderance ofthe
evidence, which may include lifestyle, hereditary factors, and exposure from other
employment or nonemployment activities. RCW 51 .32. 185(1 ). A firefighter who
does not qualify for the occupational disease presumption may still receive
benefits, but he or she retains the burden of proof. Gorre, 184 Wn.2d at 33.
Another IIA provision, RCW 51.52.115, addresses the applicable burden of
proof when a board decision is appealed to superior court. The Board's decision is
"prima facie correct[,] and the burden of proof shall be upon the party attacking the
same." !d. The superior court may reach a different result only after finding by a
preponderance of the evidence that the Board's findings and decision are
erroneous. Gorre, 184 Wn.2d at 36.
Here, we must decide how RCW 51 .32.185 operates at the trial court level.
This is an issue of first impression: Washington cases involving the firefighter
presumption have not directly addressed how it operates in superior court. 3 We hold
that whether the City rebutted the firefighter presumption by a "preponderance of the
3 We recently addressed another aspect ofRCW 51.32.185 in Gorre, 184 Wn.2d 30. There, we held that the presumption did not apply to valley fever, in part because valley fever is not specifically enumerated in the statute. Id. at 34. But here, "malignant melanoma" is specifically enumerated in RCW 51.32.185(3). The Court of Appeals briefly touched on other aspects ofthe presumption in City of Bellevue v. Raum, 171 Wn. App. 124, 147, 286 P.3d 695 (2012), holding that RCW 51.32.185 does not establish an entirely separate cause of action and briefly noting that "[i]fthe City rebuts the presumption, [the firefighter] must come forward with competent evidence supporting his occupational disease claim."
11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Spivey v. City of Bellevue/Larson v. City of Bellevue No. 91680-2
evidence" is a question of fact that may be submitted to the jury. We also apply the
Morgan theory of presumptions to RCW 51.32.185 and hold that the presumption
shifts both the burden of production and persuasion to the employer. Edmund M.
Morgan, Instructing the Jury Upon Presumptions and Burden ofProof, 4 7 HARV. L.
REv. 59 (1933). Relatedly, the jury instruction in Larson was proper and tracked the
applicable statutes, and the presumptions in RCW 51.32.185 and RCW 51.52.115 do
not conflict. Finally, Larson was entitled to attorney fees for litigating the appeal at
the board level. Thus, as explained further below, the outcome in Larson was proper,
but the judge in Spivey committed reversible error.
1. Whether the City Rebutted the Firefighter Presumption Is a Factual Determination That was Properly Given to the Jury in Larson
The City first argues that the question whether an employer rebutted the
presumption in RCW 51.32.185 should be left to the judge to decide as a matter of
law in every instance. We disagree. As outlined below, the question whether the
employer has rebutted the presumption is a factual issue that may be properly
submitted to the jury, as it was in Larson.
RCW 51.32.185(1) states that the firefighter presumption may be rebutted
"by a preponderance of the evidence." While the statute does not define
"preponderance of the evidence," WPI 155.03 does, stating that the jury "must be
persuaded ... that the proposition on which that party has the burden of proof is
12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Spivey v. City of Bellevue/Larson v. City of Bellevue No. 91680-2
more probably true than not true." Also, Black's Law Dictionary defines
"preponderance of the evidence" as "the burden of proof in most civil trials, in
which the jury is instructed to find for the party that, on the whole, has the stronger
evidence, however slight the edge may be." BLACK's LAW DICTIONARY 1373 (lOth
ed. 2014 ). These definitions make it clear: the question of whether the
presumption is overcome is one of fact that requires weighing all the evidence.
The City relies on another provision, RCW 51.52.115, to support its claim
that the rebuttal issue should instead, in all cases, be decided as a matter of law and
removed from the jury's consideration. RCW 51.52.115 lays out the deferential
standard that must be afforded the Board on appeal to superior court, stating that
"the findings and decision of the board shall be prima facie correct and the burden
of proof shall be upon the party attacking the same." However, the fact that a
board decision is presumed correct does not magically turn it into a question of law
that must be removed from the jury. In Luna de Ia Puente v. Seattle Times, 186
Wash. 618, 626-27, 59 P.2d 753 (1936), we held that a court may allow a jury to
decide whether a presumption has been rebutted. The court in Larson did just that.
Thus, in Larson, the trial court did not apply the wrong standard of review
when it allowed the jury to decide whether the city successfully rebutted the
presumption. However, in Spivey, the trial court judge committed error when he
13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Spivey v. City of Bellevue/Larson v. City of Bellevue No. 91680-2
granted the City's motion and decided as a matter of law that the firefighter
presumption had been rebutted. Because neither party has briefed the issue, we
decline to address whether it would ever be permissible for a judge to decide the
issue as a matter of law.
2. In Larson, Jury Instruction 9 Properly Informed the Jury regarding the Applicable Burden ofProof
In Larson, the court gave the jury an instruction, jury instruction 9, which
explained the applicable burdens of proof at both the prior board proceeding and at
the trial court level. The instruction tracked WPI 155.03 but added a third
paragraph addressing the burden of proof at the board level (italicized for ease of
reference):
The findings and decision of the Board of Industrial Insurance Appeals are presumed correct. This presumption is rebuttable, and it is for you to determine whether it is rebutted by the evidence.
The burden of proof is on the firefighter to establish by a preponderance of the evidence that the decision is incorrect.
At the hearing before the Board ofIndustrial Insurance Appeals, the burden of proof is on the employer to rebut the presumption that 1) claimant's malignant melanoma arose naturally out ofhis conditions of employment as a firefighter and, 2) his employment is a proximate cause of his malignant melanoma.
When it is said that a party has the burden of proof on any proposition, or that any proposition must be proved by a preponderance of the evidence, or the expression "if you find" is used, it means that you must be persuaded, considering all the evidence in the case bearing
14 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Spivey v. City of Bellevue/Larson v. City of Bellevue No. 91680-2
on the question, that the proposition on which that party has the burden of proof is more probably true than not true.
CP (Larson) at 1768. The City argues that this instruction was improper for
several reasons. It first argues that according to the Thayer theory of
presumptions, RCW 51.32.185 merely shifts the burden ofproduction to the
employer and that the presumption disappears after production of some
contrary evidence. JAMES BRADLEY THAYER, A PRELIMINARY TREATISE ON
EVIDENCE AT THE COMMON LAW ( 1898). Next, the City argues that the
presumption in RCW 51.52.115 should take precedence over RCW
51.32.185. Finally, the City argues that even if it was correct to inform the
jury regarding the burden of proof at the board level, the instruction was
misleading. We disagree with the City's arguments.
B. RCW 51.32.185 Shifts the Burden ofBoth Production and Persuasion to the Employer
Because the Statute Reflects a Strong Social Policy, We Apply the Morgan Theory to the Presumption in RCW 51.32.185
First, the City and the Department argue that it was wrong for the jury to be
informed about the firefighter presumption because, according to the Thayer theory
of presumptions, the presumption disappeared after the City produced contrary
evidence. We disagree. RCW 51.32.185 reflects a strong social policy, and thus
we must accord it the strength intended by our legislature. The presumption does
15 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Spivey v. City of Bellevue/Larson v. City of Bellevue No. 91680-2
not vanish on the production of contrary evidence; it shifts both the burden of
production and persuasion to the employer.
To explain, we must delve a bit into abstraction. We begin by noting that
there are two general theories of presumptions: the Thayer, or "bursting bubble,"
theory and the Morgan theory. The Thayer theory minimizes the importance of the
presumption, while the Morgan theory gives the presumption a lasting effect
throughout the proceedings. See generally 5 KARL B. TEGLAND, WASHINGTON
PRACTICE: EVIDENCE LAW AND PRACTICE§§ 301.13, 301.14 (6th ed. 2016).
The first theory-and the most widely followed today-was articulated by
James Bradley Thayer in the late 19th century. THAYER, supra. According to
Thayer, the only effect of a presumption is to shift the burden of producing
evidence to the party against whom the presumption operates. Cunningham v. City
of Manchester Fire Dep 't, 129 N.H. 232, 235-36, 525 A.2d 714 (1987). If such
evidence is produced by that party, "the presumption is spent and disappears." 2
MCCORMICK ON EVIDENCE§ 344, at 692 (Kenneth S. Broun ed., 7th ed. 2013).
Practically speaking, the theory is available to permit the party relying on it to
survive a motion for directed verdict, but it has no other value in trial. I d. The
presumption is never mentioned to the jury if contrary evidence has been
introduced. Thus, under the Thayer theory, the City would merely have to present
16 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Spivey v. City of Bellevue/Larson v. City of Bellevue No. 91680-2
rebuttal evidence "sufficient to support a finding contrary to the presumed fact" in
order to destroy the presumption entirely and the burden of proof would remain
with the firefighter at all times. !d. at 693.
A second theory of presumptions, sometimes called the Morgan theory,
recognizes that special policies behind a presumption may require that a jury be
informed of its existence, even if some rebuttal evidence has been produced. !d. at
695. Technically speaking, under the Morgan theory, a presumption shifts both the
burden of producing evidence and the burden of persuasion to the opponent of the
presumption. Cunningham, 129 N.H. at 236. The presumption does not disappear
on the production of contrary evidence. Rather, a "Morgan theory presumption ...
operates with a weight commensurate with the policy considerations that the
presumption embodies." Id.
We have not adopted a general rule for how presumptions such as this one
should operate, and thus in Washington the law of presumptions continues to be
defined by statutes and case law. TEGLAND, supra, §§ 301.1, 3 01.13. Depending
on the underlying statute and type of case, Washington has applied the Morgan
theory, the Thayer theory, or in many instances neither theory to statutory
presumptions. Id. § 301.13. Due to the unsettled nature of our case law, it is
understandable why the parties reach contrary positions as to which theory should
17 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Spivey v. City of Bellevue/Larson v. City of Bellevue No. 91680-2
apply. Here, we conclude that the plain language of the statute, the legislative
intent behind it, and case law from other jurisdictions supports applying the
Morgan theory to RCW 51.32.185. We hold that the statute thus shifts the burden
of production and persuasion to the employer.
The plain language ofthe statute indicates that RCW 51.32.185 does more
than merely require the employer to produce some contrary evidence. The statute
does not use the words "contrary evidence" or "some evidence." It explicitly states
that the presumption may be rebutted with a preponderance of the evidence. This
term indicates that the burden of proof shifts to the party contesting the benefits
award to show, more likely than not, that the firefighter's disease is not
occupationally related. Drafters of the WPI seem to agree with this interpretation:
the WPI generally treat presumptions that state a quantum of proof as shifting to
the opponent the burden of proof as to the presumed fact. TEGLAND, supra,
§ 301.15; 6 WASHINGTONPRACTICE: WASHINGTONPATTERN JURY INSTRUCTIONS:
CIVIL 24.01-.05 (6th ed. 2012).
The City and the Department nevertheless argue that the words "prima
facie" indicate that the presumption vanishes on production of contrary evidence.
To clear up any confusion, we turn to the statute's legislative history and to case
law from other jurisdictions to further clarify which type of presumption the
18 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Spivey v. City of Bellevue/Larson v. City of Bellevue No. 91680-2
legislature intended. A broader consideration of the policy behind RCW 51.32.185
shows that the legislature did not intend the presumption to simply vanish on
production of some rebuttal evidence.
While we have not addressed how presumptions in statutes such as RCW
51.32.185 should be treated, other jurisdictions have done so and have applied the
Morgan theory to analogous "firefighter statutes." For example, the New
Hampshire Supreme Court analyzed an analogous statute, which stated, '" [T]here
shall exist a prima facie presumption that heart or lung disease in a firefighter ...
is occupationally related."' Cunningham, 129 N.H. at 23 5 (quoting former N.H.
Rev. Stat. Ann. § 281:2 (1988). The court reviewed the statute's legislative history
and determined that its apparent purpose was to implement a social policy of
providing compensation to firefighters in circumstances where medical evidence
fails to establish the definitive cause of the plaintiff's heart disease. Id. at 236. It
went on to note that applying the Thayer theory would not be consistent with the
policy objective of the statute, and thus it applied the statutory presumption "with a
force consistent with the legislative concerns underlying the presumption." Id. at
237. Maryland, Missouri, North Dakota, and other jurisdictions have followed suit
when interpreting similar statutes. See, e.g. Montgomery County Fire Bd. v.
19 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Spivey v. City of Bellevue/Larson v. City of Bellevue No. 91680-2
Fisher, 298 Md. 245, 255-57, 468 A.2d 625 (1983); Byous v. Mo. Local Gov't
Emps. Ret. Sys. Bd. ofTrs., 157 S.W.3d 740, 746-47 (Mo. Ct. App. 2005).
As discussed by the Court of Appeals, New Hampshire and other courts
have also noted that analogous presumptions serve the purpose of relieving
firefighters of the "nearly impossible burden of proving fire fighting actually
caused their disease." Wanstrom v. N.D. Workers Camp. Bureau, 2001 ND 21,
621 N.W.2d 864, 867 (2001). The New Hampshire Supreme Court noted that
"[e]ven a slender amount of rebuttal evidence can too handily defeat a Thayer
presumption," and such is the situation here. Cunningham, 129 N.H. at 237.
Under the City's proposed interpretation, the City would merely have to appeal all
decisions to the Board in order to defeat most firefighters' claims. Given the
difficulty of actually proving the specific cause of an individual's melanoma, an
employer will almost always be able to produce evidence to rebut a Thayer
The Washington Legislature appeared to take these considerations into
account when it added melanoma to the list of qualifying diseases in RCW
51.32.185. The statute was adopted in 1987 and originally provided only
presumptive coverage for respiratory diseases. LAWS OF 1987, ch. 515, § 1. In
2002, the legislature amended the statute to add additional diseases, including
20 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Spivey v. City of Bellevue/Larson v. City of Bellevue No. 91680-2
"malignant melanoma," to the list. 4 LAWS OF 2002, ch. 337, § 1(e). It added
melanoma despite testimony that there was not enough scientific evidence to
support adding additional diseases to the statute. See H.B. REP. ON H.B. 2663, at 3,
57th Leg., Reg. Sess. (Wash. 2002) ("[t]he bill is too broad because it covers
conditions for which no correlation to fire fighting exposure is known"). Thus, the
apparent purpose of adding melanoma to the list of covered diseases was to
compensate firefighters even in circumstances when there may not be strong
medical or scientific evidence establishing a definitive causal relationship between
firefighting and the disease.
We thus apply the Morgan theory to the presumption: once a firefighter
shows that he or she suffers from a qualifying disease, RCW 51.32.185(1) imposes
on the employer the burden of establishing otherwise by a preponderance of the
evidence. To be clear, this is a burden both to produce contrary evidence and to
persuade the finder of fact otherwise. The jury may be instructed regarding the
presumption in RCW 51.32.185. The plain language of the statute, case law from
4The legislature included a finding that a review of firefighter epidemiology calculated a "statistically significant risk for melanoma among fire fighters." This finding was later vetoed by the governor. LAWS OF 2002, ch. 337 (veto message explaining that "the assumptions in section 1 of this bill have not been clearly validated by science and medicine").
21 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Spivey v. City of Bellevue/Larson v. City of Bellevue No. 91680-2
other jurisdictions, and the statute's broader social purpose indicate that RCW
51.32.185 is "stronger" than a Thayer presumption.
We stress, however, that this standard does not impose on the employer a
burden of proving the specific cause ofthe firefighter's melanoma. Rather, it
requires that the employer provide evidence from which a reasonable trier of fact
could conclude that the firefighter's disease was, more probably than not, caused
by nonoccupational factors. See RCW 51.32.185(1 ). Finally, we emphasize the
narrowness of this holding: While we apply the Morgan theory here, we decline to
adopt a general rule. Rather, we limit our holding's applicability to this statute.
C. RCW 51.52.115 Does Not Flip the Burdens That Were Applicable at the Department and Board Level
The City and the Department next claim that because RCW 51.52.115 sets
forth the burden of proof for all appeals to superior court, it governs over the
provisions in RCW 51.32.185. The City goes on to argue that the trial court
disregarded RCW 51.52.115 when it informed the jury about the employer's
burden of proof at the board level. We disagree. We clarify that RCW 51.52.115
requires the party challenging a board decision to show that the decision was not
supported by sufficient evidence. However, it does not change the burdens that
were applicable at the department and board levels.
22 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Spivey v. City of Bellevue/Larson v. City of Bellevue No. 91680-2
RCW 51.52.115 states that the Board's decision is presumed correct on
appeal, but we have recently clarified that it does not fundamentally flip any
burden of proof or presumption applicable in initial department or board hearings.
Rather, the party challenging a board decision simply must show that the Board did
not meet the applicable burden or adhere to the applicable presumption. In
Department of Labor & Industries v. Rowley, we clarified that "this court has held
that an appellant can meet the burden imposed under RCW 51.5 2.115 just by
showing that the Department's order is not supported by sufficient evidence-that
is, without necessarily presenting any new affirmative evidence that the
Department's order is incorrect." 185 Wn.2d 186,207-08,378 P.3d 139 (2016)
(citing Olympia Brewing Co., 34 Wn.2d at 504). In other words, a party appealing
a board decision can meet the standard in RCW 51.52.115 by demonstrating that
the employer's evidence at the board level did not, in fact, rebut the firefighter
presumption by a preponderance of the evidence. Any other rule would make it
nearly impossible for a firefighter to successfully appeal an adverse "rebuttal"
decision by the Board.
RCW 51.52.115 does not fundamentally flip the burden of proof applicable
at department or board proceedings. Rather, it imposes on the party challenging a
board decision the burden to show that the Board's decision was incorrect by
23 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Spivey v. City of Bellevue/Larson v. City of Bellevue No. 91680-2
demonstrating that the Board's "findings and decision are erroneous." Gorre, 184
Wn.2d at 36. Accordingly, it was proper for the jury to be informed of the
employer's burden at the board level, so that it could determine whether the
firefighter had made this demonstration.
D. Jury Instruction 9 Does Not Conflict with La Vera
The City next argues that instructing the jury about the burden of proof at
the prior Board proceeding was inappropriate because under La Vera v.
Department of Labor & Industries, 45 Wn.2d 413,415,275 P.2d 426 (1954), the
jury instruction added "complexity and confusion" to the jury's task by "conflating
which party had the burden of proof at each stage ofthe proceeding." Suppl. Br. of
Pet'r City of Bellevue at 9; Suppl. Br. ofPet'r L&I at 20. We agree that the jury
instruction added complexity to the jury's determination. But the instruction also
presented the jury with an accurate statement of the law.
In La Vera, another workers' compensation case, we stated that the question
of the burden of proof at the board level is immaterial in an appeal to superior
court from a board's order. Id. at 414-15. But La Vera does not apply here. That
case was decided approximately 33 years prior to RCW 51.32.185's enactment,
and the jury was deciding a different issue: whether the Department correctly
reclassified the claimant from total to permanent partial disability. Id. at 414.
24 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Spivey v. City of Bellevue/Larson v. City of Bellevue No. 91680-2
In the context ofRCW 51.32.185, the question ofthe burden ofproofat the
board level is material on appeal to superior court. The jury cannot know whether
the City rebutted the firefighter presumption if they are not informed of its
existence. We presume that jurors follow instructions, and here, there is no
evidence to the contrary. Hizey v. Carpenter, 119 Wn.2d 251,269-70,830 P.2d
646 (1992). The instruction explained that the Board's decision was presumed
correct. It also explained that Larson bore the burden of proving by a
preponderance of the evidence that the decision was incorrect. The challenged
paragraph does not ask the jury to directly apply the firefighter presumption.
Rather, it made the jury aware of the burden of proof at the board level so that they
could determine whether that burden was met. Further, as discussed previously,
the special policy behind the presumption in RCW 51.32.185 indicates that the jury
may be informed of the presumption's existence.
Accordingly, jury instruction 9 neither improperly informed the jury about
the applicable burden of proof at the trial court level nor unduly added "complexity
and confusion" to the jury's task. While the jury does not apply the firefighter
presumption, the jury may be informed that the presumption once existed.
25 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Spivey v. City of Bellevue/Larson v. City of Bellevue No. 91680-2
E. The Jury Instruction, When Read as a Whole, Was Not Misleading
Finally, though it was proper to inform the jury of the burden of proof at the
board level, the City argues that jury instruction 9 was nevertheless misleading
because, due to its syntax, it "saddled [the] City with the double burden of
disproving both elements of an occupational disease claim." City of Bellevue Pet.
for Review at 17. We disagree. As the Court of Appeals noted, the instruction
directly tracks the statutory definition. When read in context with the rest of the
instruction, it paints an accurate picture of the applicable law.
Jury instructions are proper when, read as a whole, they permit parties to
argue their theories of the case, do not mislead the jury, and properly inform the
jury of the applicable law. State v. Hutchinson, 135 Wn.2d 863, 885, 959 P.2d
1061 ( 1998). Even if an instruction is misleading, it will not be reversed unless it
prejudices a party. Keller v. City of Spokane, 146 Wn.2d 237, 249, 44 P.3d 845
(2002). We presume that juries follow lawful instructions. Hizey, 119 Wn.2d at
270. The City argues that the paragraph quoted below was misleading because it
erroneously led the jury to believe that the City was required to rebut both the
"arising naturally" element and the "proximate cause" elements in RCW
51.08.140:
At the hearing before the Board of Industrial Insurance Appeals, the burden of proof is on the employer to rebut the presumption that 1)
26 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Spivey v. City of Bellevue/Larson v. City of Bellevue No. 91680-2
claimant's malignant melanoma arose naturally out of his conditions of employment as a firefighter and, 2) his employment is a proximate cause of his malignant melanoma.
CP (Larson) at 1768 (emphasis added). Specifically, the City argues that the use of
the conjunction "and" between the two clauses required the jury to analyze
whether the City had rebutted both (not just one) of the elements.
The City has a point that a hypertechnical reading of the above paragraph
could lead a reasonable mind to believe that the City had a "double burden" here.
However, as the Court of Appeals notes, it is also true that the jury instruction
directly tracks the applicable statutory definition. The IIA defines an occupational
disease as one that "arises naturally and proximately out of employment." RCW
51.08.140. This jury instruction does so as well but merely breaks the definition
into two parts.
Further, the instruction is not misleading when read in context with the rest
of jury instruction 9. As explained in the previous section, the rest of the
instruction clarifies that the findings and decision of the Board are presumed
correct. CP (Larson) at 1768. It also states that the burden of proof is on the
firefighter to establish by a preponderance of the evidence that the decision is
incorrect. Id. The instruction, when read as a whole, is accurate.
27 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Spivey v. City of Bellevue/Larson v. City of Bellevue No. 91680-2
F. RCW 51.32.185(7) Allows a Firefighter To Recover Attorney Fees Incurred at the Board Level if He or She Is Ultimately Successful on Appeal to Superior Court
Under RCW 51.32. 185(7) and RCW 51.52. 130, the trial court
awarded Larson $67,470.00 in attorney fees and $12,132.42 in costs. CP
(Larson) at 1900-01, 1904. The City argues that fees and costs incurred
litigating the board appeal, where Larson did not prevail, should not have
been included in that award. Because the plain language of the statute
authorizes attorney fees for "all reasonable costs of the appeal," we disagree.
Whether a statute authorizes an award of attorney fees is a question of law
reviewed de novo. Torgerson v. One Lincoln Tower, LLC, 166 Wn.2d 510,
517, 210 P.3d 318 (2009).
RCW 51 .32.185(7) contains two subsections specifically addressing
attorney fees in cases involving the firefighter presumption. First, RCW
51.32.185(7)(a) addresses how attorney fees should be handled at the board
level. It states that "[w]hen a determination involving [the firefighter
presumption] is appealed to the [Board] and the final decision allows the
claim for benefits, the [Board] shall order that all reasonable costs of the
appeal, including attorney fees and witness fees, be paid to the firefighter ...
by the opposing party." Next, RCW 51.32.185(7)(b) states that "[w]hen a
28 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Spivey v. City of Bellevue/Larson v. City of Bellevue No. 91680-2
determination involving the presumption established in this section is
appealed to any court and the final decision allows the claim for benefits, the
court shall o~der that all reasonable costs of the appeal, including attorney
fees and witness fees, be paid to the firefighter ... by the opposing party."
(emphasis added).
The City argues that under the plain language of the statute, only the
Board, not the superior court, has the authority to award fees incurred before
the Board. They assert that because Larson did not prevail before the Board,
he was not entitled to recover attorney fees and costs at that proceeding.
Larson argues that RCW 51.32.185(7)(b) clearly allows him to recover
attorney fees for services before the Board when that decision is reversed on
appeal to the superior court. He notes that he had no reason to appeal the
Department's order allowing his claim, and that to exclude his costs and fees
incurred at the Board would "contort[] the fee provisions ofRCW 51.32.185
and the overriding policy of protecting workers as opposed to employers."
Larson's Suppl. Br. at 18.
We agree with Larson: RCW 51.32.185(7) is broader than the general
provision governing attorney fees in workers' compensation cases. The general
provision, RCW 51.52.130, limits recovery to "services before the court only."
29 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Spivey v. City of Bellevue/Larson v. City of Bellevue No. 91680-2
This court has held that this provision does not include fees for work at the Board.
See, e.g., Borenstein v. Dep't of Labor & Indus., 49 Wn.2d 674, 676-77,306 P.2d
228 (1957). However, RCW 51.32.185(7)(b) does not contain such limiting
language. It speaks more broadly, allowing "all reasonable costs of the appeal,
including attorney fees and witness fees."
Fees incurred before the Board are reasonable "costs of appeal." This is
especially true in workers' compensation cases where generally the trial is
conducted on the hearing record. All witnesses are called at the board level, and
the trial court may analyze only the documentation and testimony accumulated at
that level. RCW 51.52.115 (stating "the court shall not receive evidence or
testimony other than, or in addition to, that offered before the board"). Thus, a
great deal of the "costs of appeal" are likely those that are incurred before the
Board, not the trial court.
This result is also consistent with our obligation to construe the IIA liberally
in favor of the worker. We award attorney fees in industrial insurance cases in
order to "'guarantee the injured [worker] adequate legal representation in
presenting his claim on appeal without the incurring of legal expense or the
diminution ofhis award."' Harbor Plywood Corp. v. Dep't ofLabor & Indus., 48
Wn.2d 553, 559,295 P.2d 310 (1956) (quoting Boeing Aircraft Co. v. Dep't of
30 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Spivey v. City of Bellevue/Larson v. City of Bellevue No. 91680-2
Labor & Indus., 26 Wn.2d 51, 57, 173 P.2d 164 (1946)). To refuse to grant
attorney fees here, when Larson prevailed at the Court of Appeals and before this
court, would result in an inadequate recovery for Larson. We affirm the Court of
Appeals and uphold the attorney fees award. We also grant Larson's request for
attorney fees on appeal to this court.
CONCLUSION
RCW 51.32.185 reflects the legislature's intent to relieve a firefighter of
unique problems of proving that fire fighting caused his or her disease.
Accordingly, we apply the firefighter presumption with a force that gives life to the
legislature's words. We hold that the question whether the City rebutted the
presumption in RCW 51.52.185 is one of fact that may be submitted to the jury. In
Spivey, the trial court erred when it decided the issue as a matter of law. We also
clarify that RCW 51.32.185 shifts both the burden of production and the burden of
persuasion to the employer. Thus, in Larson, jury instruction 9 accurately stated
the applicable law. Finally, we find that Larson is entitled to attorney fees for
litigating his claim before the Board and before this court. We thus affirm the
Court of Appeals in Larson, but reverse the trial court's ruling in Spivey and
remand for proceedings in accordance with this decision.
31 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Spivey v. City of Bellevue/Larson v. City of Bellevue No. 91680-2
WE CONCUR: