Spivey v. City of Bellevue

Summary

The Washington Supreme Court consolidated appeals involving Bellevue firefighters who sought workers’ compensation benefits for malignant melanoma under the statutory firefighter presumption in RCW 51.32.185. The court held that whether an employer rebutted the presumption by a preponderance of the evidence is generally a factual question, and that the presumption shifts both the burden of production and the burden of persuasion to the employer. The court affirmed the result in Larson, reversed the superior court’s ruling in Spivey, upheld the challenged jury instruction, and concluded that Larson was entitled to attorney fees for proceedings before the Board.

Holdings

1. Whether the employer rebutted the RCW 51.32.185 firefighter presumption by a preponderance of the evidence is a factual determination that may be submitted to the jury. The Spivey superior court therefore erred by deciding rebuttal as a matter of law.
2. The firefighter presumption shifts both the burden of producing evidence and the burden of persuasion to the employer. The employer must establish by a preponderance of the evidence that the firefighter's disease was caused by nonoccupational factors, although it need not prove the specific cause of the melanoma.
3. RCW 51.52.115 does not alter or reverse the burdens applicable at the Department and Board proceedings. On superior-court review, the party challenging the Board must show that the Board's findings and decision are erroneous, including by showing that the employer's evidence did not rebut the firefighter presumption by a preponderance of the evidence.
4. Jury instruction 9 accurately stated the applicable law and was not impermissibly misleading when read as a whole. It was proper to inform the jury of the employer's burden at the Board level and of the firefighter presumption.
5. Larson was entitled to recover reasonable attorney fees and costs incurred at the Board level because RCW 51.32.185(7)(b) authorizes all reasonable costs of the appeal when a court's final decision allows the claim for benefits.

Questions Presented

1. Whether rebuttal of the statutory presumption that malignant melanoma in a firefighter is an occupational disease is a question of law or fact.
2. Whether RCW 51.32.185 shifts both the burden of production and the burden of persuasion to the employer.
3. Whether Larson's jury instruction 9 accurately stated the burdens applicable at the Board and superior-court levels.
4. Whether the superior-court appeal standard in RCW 51.52.115 changes the burdens applicable at the Department and Board proceedings.
5. Whether Larson was entitled to attorney fees and costs incurred at the Board level after ultimately prevailing on appeal.

Disposition

reversed_and_remanded