Washington Supreme Court Upholds Cancer Presumption Law

The Supreme Court of Washington handed down an important decision last week on the state’s firefighter cancer presumption law. The unanimous decision upheld workers compensation benefits for two Bellevue firefighters who developed melanoma despite contrary medical reports that suggested their conditions may have been unrelated to firefighting.

The legal issues are complicated and require a more in depth discussion. However, let’s start with the basics. Two Bellevue firefighters, Wilfred Larson and Delmis Spivey, developed melanoma and sought coverage for their conditions as occupationally related diseases from the Washington State Department of Labor and Industries (DLI).

The cases took different paths, with Larson’s request being granted occupational status by the DLI and Spivey’s being declined. Appeals were filed in each case bringing the matters to the Board of Industrial Insurance Appeals, who ruled against the firefighters. The cases were appealed separately to King County Superior Court where they again took different paths with Larson prevailing after a jury trial, and Spivey losing on summary judgment.

The Washington Supreme Court upheld the jury verdict in Larson’s case, awarding his melanoma occupational disease status. The court reversed Spivey’s denial of occupational disease status and returned the case to the trial court for further proceedings.

For those interested in a more in depth look at the cases, but who do not want to read the full text, here is the court’s explanation.

  • Under the Industrial Insurance Act… 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.
  • 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 (DLI), seeking coverage for his melanoma as an occupational disease. The DLI allowed the claim, applying the presumption.
  • 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.
  • 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.
  • 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.
  • 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.
  • 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.
  • The jury answered …. 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.
  • 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.
  • 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.
  • 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.”
  • The Board affirmed the Department’s order rejecting Spivey’s claim.
  • 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.”
  • Unlike 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”
  • ***  
  • [T]here is a statutory prima facie presumption that melanoma in firefighters is an occupational disease for workers’ compensation purposes.
  • This presumption can be rebutted by a preponderance of the evidence, which may include lifestyle, hereditary factors, and exposure from other employment or nonemployment activities.
  • A firefighter who does not qualify for the occupational disease presumption may still receive benefits, but he or she retains the burden of proof.
  • We hold that whether the City rebutted the firefighter presumption by a “preponderance of the evidence” is a question of fact that may be submitted to the jury.
  • We also … hold that the presumption shifts both the burden of production and persuasion to the employer.
  • The plain language of the 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.
  • RCW 51.32.185 reflects the legislature’s intent to relieve a firefighter of unique problems of proving that firefighting caused his or her disease.
  • Accordingly, we apply the firefighter presumption with a force that gives life to the legislature’s words.
  • In Spivey, the trial court erred when it decided the issue as a matter of law.
  • Finally, Larson was entitled to attorney fees for litigating the appeal at the board level.

Here is a copy of the decision: Spivey v Bellevue

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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