r.
FILED
U i OF' APPE" I S
DIVISION I1
20111 JUL 15 Art10: 1a1
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
S rE 1: ON
DIVISION II , Y t4 `"°,,
OERUTY
EDWARD O. GORRE, No. 43621 -3 -II \ \ \
Appellant and
Cross Respondent,
v.
CITY OF TACOMA, ORDER AMENDING ORDER GRANTING
RECONSIDERATION
IN PART AND AMENDING OPINION
Respondent and
Cross Appellant,
DEPARTMENT OF LABOR AND
INDUSTRIES,
Respondent.
The court amends the first and second sentences of the first paragraph of the Order
Granting Reconsideration in Part and Amending Opinion, filed today, July 8, 2014, to correct a
date and to substitute " published" for " unpublished" so that these sentences now read as follows:
Respondent Department of Labor & Industries ( Department) has filed a
motion for reconsideration of our published opinion filed on April 23, 2014. We
grant the Department' s motion for reconsideration, in part, by making the
following changes to our published opinion filed April 23, 2014•
IT IS SO ORDERED.
DATED this / y' / ay of
1
For the Court:
Hunt, P. J., Worswick, J., Penoyar, J. P. T.
CO IR o` A PDPEA }
IN THE COURT OF APPEALS OF THE STATE OF WASfNdTON
CCI' JUL - 8
fi 1Q: f 8
DIVISION II
STATE OF WASHINGTON
EDWARD O. GORRE, NQsp, 43621 -3 -L
1 V. Y
Appellant and
Cross Respondent,
v.
CITY OF TACOMA, ORDER GRANTING RECONSIDERATION
IN PART AND AMENDING OPINION
Respondent and
Cross Appellant,
DEPARTMENT OF LABOR AND
INDUSTRIES,
Respondent.
Respondent Department of Labor & Industries ( Department) has filed a motion for
reconsideration of our published opinion filed on May 7, 2014. We grant the Department' s
motion for reconsideration, in part, by making the following changes to our unpublished opinion
filed April 23, 2014:
1) On page 3, we modify the first sentence of footnote 3, which reads, " In so doing, we
note that the following existing evidence in the record is insufficient to rebut the presumption
that Gorre' s Valley Fever is an occupational disease under RCW 51. 32. 185," as follows:
We add the phrase " before us on appeal" after " we note that the following existing
evidence "; and we delete the word " is" before " insufficient" and replace " is" with " appears."
With these changes, the first sentence of footnote 3 now reads:
In so doing, we note that the following existing evidence in the record
before us on appeal appears insufficient to rebut the presumption that Gorre' s
Valley Fever is an occupational disease under RCW 51. 32. 185"
No. 43621 -3 - II
2) On page 40, we delete footnote 50, which states:
An administrative court is not bound to follow the civil rules of evidence; on the .
contrary, relevant hearsay evidence is admissible in administrative hearings.
Nisqually Delta Ass' n v. City of Dupont, 103 Wn.2d 720, 733, 696 P.2d 1222
1985); Pappas v.Emp' t Sec. Dept., 135 Wn. App. 852, 857, 146 P. 3d 1208
2006); Hahn v. Dep' t of Ret. Sys., 137 Wn. App. 933, 942, 155 P.3d 177 ( 2007).
See also RCW 34. 05. 452( 1), which summarizes the relaxed evidentiary standards
in administrative hearings and broad discretion for the presiding officer.
With these changes, footnote 51 on the following page shall be renumbered to footnote 50.
We otherwise deny the Department' s motion for reconsideration.
IT IS SO ORDERED.
2
CURT OF APPEALS
OlY1Slou it •
IN THE COURT OF APPEALS OF THE STATE OF2kathiCtilaN2 9
STATE OF WASHINGTON
DIVISION II
IT`(
EDWARD O. GORRE, No. 43621 -3 of
Appellant and
Cross Respondent,
v.
CITY OF TACOMA, PUBLISHED OPINION
Respondent and
Cross Appellant,
DEPARTMENT OF LABOR AND
INDUSTRIES,
Respondent.
HUNT, J. — Tacoma firefighter Lieutenant Edward O. Gorre appeals the superior court' s
affirmance of the Board of Industrial Insurance Appeals' denial of his occupational disease claim
under RCW 51. 32.
1851_
Gorre argues that we should reverse because ( 1) he had separate
diagnoses of " Valley Fever" and eosinophilic lung disease, which qualified for RCW
51..32.185' s evidentiary presumption of occupational disease for firefighters; ( 2) the Board and
the Department of Labor and Industries ( Department) failed to apply this statutory presumption
of occupational disease, which improperly shifted the burden of proof to him ( rather than
1 We acknowledge that at the time Gorre filed his first claim for benefits, April 2007, the 2002
version of RCW 51. 32. 185 was in effect. Shortly thereafter, the statute was amended in July
2007, adding sections 6 and 7, which discuss the definition. of "firefighting activities" and
attorney fees, respectively. RCW 51. 32. 185( 6) and ( 7). Because these 2007 statutory
amendments did not substantively affect the legal issues here, we reference the new statute as the
parties do in this appeal.
No. 43621 -3 -II
City Tacoma to this presumption); and ( 3) the evidence failed to
properly requiring the of rebut
rebut the presumption that he did not have an occupational disease that arose naturally and
proximately from the course of his employment.
The City of Tacoma cross appeals ( 1) the superior court' s finding that Gorre was not a
smoker, which would preclude application of the statutory evidentiary presumption; ( 2) the
superior court' s consideration of. Gorre' s evidence outside the Board' s record; and ( 3) the
Board' s failure to award. the City' s deposition costs incurred before the Board.
We reverse the superior court' s findings of fact and conclusions of law that ( 1) Gorre did
not have an occupational disease under RCW 51. 08. 140 based on its improper finding that he
failed to prove a specific injury during the course of his employment, (2) Gone did not contract
any respiratory .conditions that arose naturally and proximately from distinctive conditions of his
employment with the City, and ( 3) the Board' s decision and order are correct; we also reverse
the underlying corresponding Board findings. Holding that the superior court did not abuse its
discretion in failing to strike Gorre' s evidence, we affirm the superior court' s finding that Gorre
was not a smoker. Further holding that both the Board and the superior court erred in failing to
disease to Gorre' s claim, ( 1)
apply RCW 51. 32. 185' s evidentiary presumption of occupational
we reverse both the Board' s denial of Gorre' s claim and the superior court' s affirmance of the
Board' s denial2; and ( 2) we remand to the Board with instructions to follow RCW 51. 32. 185, to
2 Because we reverse and remand, we do not address the City' s argument that the superior court
abused its discretion in denying the City' s request for deposition costs.
2
No. 43621 -3 -II
accord Gorre the benefit of this presumption, and to shift to the City the burden of rebutting the
3
presumption of occupational disease by a preponderance of the evidence.
FACTS
I. BACKGROUND AND MEDICAL HISTORY
Edward Omar Gorre grew and lived for 18 years in Fair Oaks, California. After
up
he California Gorre served in the United States
graduating from high school, attended colleges.
Army in Operation Desert Storm from 1988 to 1990, when he returned to California and lived in
Sacramento for -
four years. In 1997 Gorre moved to the Tacoma area, where he worked as a
professional firefighter andfirefighter paramedic for the City of Tacoma from March 17, 1997,
to May 2007. As a prerequisite for this employment, Gorre passed a demanding test of physical
strength and stamina and a physical examination that included blood testing and x-rays. -. n 2000
I
he became a firefighter paramedic; in 2007 he became a fire medic lieutenant.
Over the course of his career as a firefighter and paramedic, Gorre responded to
thousands of residential, commercial, industrial, and wild fires. His duties also included fire
suppression, search and - escue, and " overhaul,"
r which involves looking for seeds of fire tomake
sure the fire does not start up again. Administrative Record ( AR) at 1055. He was exposed to
smoke, diesel, chemicals, and mold when responding to fire calls, " Hazmat "4 calls ( hazardous
material spills), lockouts ( from cars and houses), daily building inspections, car incidents, and
3 In so doing, we note that the following existing evidence in the record is insufficient to rebut
the presumption that Gorre' s Valley Fever is an occupational disease under RCW 51. 32. 185: ( 1)
that Valley Fever is not native to western Washington, and ( 2) that Gorre travelled to Nevada
during his employment as a City firefighter.
4ARat1058.
3
No. 43621 -3 -I1
medic calls. Such exposures frequently placed him in close contact with patients with fever,
H1N1 flu
virus5,
and other respiratory diseases. Gorre did not wear respiratory protection when
he fought wildfires, inspected manufacturing plants, dug trenches, or responded to medical calls.
SCBA)
overhauls6;
Similarly, Gorre did not wear a " self-contained breathing apparatus" ( during
instead, his face was completely exposed. AR at 1055,
Between 2000 and 2005, Gorre and his colleague, Darrin S. Rivers, travelled to
California and Las Vegas several times for vacation, including a trip to Las Vegas in November
2005. Two years later, beginning in February or March 2007, after ten years on the job, Gorre
experienced fatigue, night sweats, chills, and joint aches. On April 17, he filed an accident
report with the City, stating that during a lung biopsy his physician, Dr. Paul Sandstrom, had
found evidence of an inhalation injury. Dr. Sandstrom' s biopsy revealed upper lobe pulmonary
lesions$. Dr. Sandstrom referred Gorre to Dr. Christopher Goss, a
infiltrates7
and granulomous
pulmonary specialist, who began treating Gorre on May 2; after his lung biopsy. Dr. Goss
initially diagnosed Gorre with hypersensitivity pneumonitis, a respiratory disease, and treated
him with steroids; almost a year later, on March 19, 2008, Dr. Goss again saw Gorre and
5 H1N1, also known as the avian flu or swine flu, infects the human upper respiratory tract. See
http://www.cdc.gov/h1n1flu/qa.htm.
6 It was not common practice amongst firefighters to wear an SCBA for overhaul; and the City
did not require them until 2007.
7
A " pulmonary infiltrate"is a descriptive term used by radiologists to describe an abnormal
density (such as pus or fluid) or infection yin the lungs.
See http : /www.aic.cuhk.edu.hk/web8/ Very %20BASIC %
/ 20CXR %201ungs.html.
8 " Granulomous lesions" in the lungs refer to chronic inflammations.
See http:// www.mrcophth . om/pathology /granuloma.html.
c
4
No. 43621 -3 -II
continued to believe that the respiratory disease affecting Gorre was hypersensitivity
pneumonitis.
The next month, in April, Gorre saw a dermatologist, who evaluated a nodular skin lesion
on his forehead. Its biopsy showed that Gorre had coccidioidomycosis, also known as " Valley
Fever. " 9 Dr. Paul Bollyky, from the University of Washington Infectious Diseases Clinic, also
diagnosed Gorre with Valley Fever10 and initiated therapy.
II. PROCEDURE
A. Adminsitrative Denial of Industrial Insurance ( Workers' Compensation) Benefits
Gorre filed a form with the City reporting his occupational injury; he also filed an
application for workers' compensation benefits with the Department of Labor and .Industries. He
reported that Dr. Sandstrom had " found evidence of [an] inhalation exposure upon biopsy of
lungs "11; but he did not include medical testimony, doctors' notes, or records to support his claim
of inhalation exposure. In the application blank asking for the address where his 'injury had
occurred, Gorre did not specify a location. Gorre also submitted Dr. Peter K. Marsh' s evaluation
9ARat3.
10
Valley Fever is caused by Coccidioides immitis, a fungus organism that lives in sterile soil in
desert areas such as Mexico, the Sonoran desert and other areas of California and Arizona,
Nevada, and other southwestern states. This organism produces spores that become airborne
when the soil is disturbed; when inhaled, these spores cause Valley Fever in humans. Symptoms
of Valley Fever surface between two to six weeks on average after exposure and include flu like
symptoms or a transient lung disease that affect a patient' s respiratory functions. Although the
medical experts in this case explained that Valley Fever was not endemic to Washington State as
of 2010, recent Coccidioides diagnoses have been reported in eastern Washington, and
Coccidioides immitis (the fungal cause of Valley Fever) has been recently identified in eastern
Washington soil. King County Public Health health advisory report
See April 4, 2014, Seattle &
http: / www.kingcounty. gov/ healthservices /health/ communicable /providers. aspx).
/
11 AR: at872.
5
No. 43621 -3 -II
that Gorre had Hepatitis C exposure, which was likely work related.
. The City requested Gorre' s
medical report, records, and chart notes from Dr. Sandstrom and Edmonds Family Medicine; but
it received no response.
The City denied Gorre' s lung disease claim. In February 2008, the Department also
denied Gorre' s lung disease claim, saying it was not an occupational disease under RCW
51.08. 140. Gorre requested reconsideration, asserting that he had eosinophilic
pneumonia/ hypersensitive pneumonitis, which were lung diseases considered presumptive
occupational diseases under RCW 5132. 185( 1)( a). On March 26, the Department issued an
order stating that the City was responsible for Gorre' s .Hepatitis C exposure and for Gorre' s
interstitial lung disease, finding that both hepatitis C12 and interstitial lung disease were
occupational -
diseases and that the City would pay Gorre all medical and time loss benefits.
In September 2008, the City asked Dr. Garrison Ayars to determine Gorre' s condition
and to consider the RCW 51. 32. 185 statutory presumption' of occupational disease for
13
firefighters. In October, the City sent Dr. Ayars' evaluation to Dr. Goss, stating that if Dr.
Goss did not respond, the City would assume he concurred with Dr: Ayars' evaluation. In March
2009, Dr. Goss responded that he disagreed with Dr. Ayars' evaluation.
12 The next month, however, the Department sent notification that it would be issuing a new
order stating that it could not include Gorre' s hepatitis C with his lung disease claim.
13 RCW 51. 32. 185 creates a presumption of occupational disease for firefighters who have
infectious diseases. RCW 51. 32. 185( 1). If a
respiratory disease, heart problems, cancer, and
firefighter qualifies for this statutory presumption, the burden of proof shifts to the employer to
show by a preponderance of the evidence that the firefighter' s condition does not qualify as an
occupational disease. RCW 51. 32. 185( 1).
6
No. 43621.3 -II
On March 24, 2009, the Department ( 1). cancelled its March 26, 2008 order stating that
the City was responsible for Gorre' s interstitial lung disease; and ( 2) instead denied Gorre' s
claim on grounds that there was no proof of specific injury, his condition was not the result of
industrial injury, and his condition was not an occupational disease under RCW 51. 08. 140.
B. Appeal to Board of Industrial Insurance Appeals
Gorre appealed to the Board of Industrial Insurance Appeals and moved for summary
judgment. He argued that ( 1) he was entitled to the presumption of occupational disease set forth
in RCW 51. 32. 185; ( 2) the Department had failed to apply this RCW 51. 32. 185 presumption of
occupational disease; and ( 3) under RCW 51. 32. 185, the burdens of proof, production, and
persuasion rested on the City. The City responded with declarations from Dr. Emil. Bardana, Dr.
Ayars, Angela Hardy, Britta Holm, and Jolene Davis, among others.
1. Industrial Appeals Judge hearing and ruling
The Board' s Industrial Appeals Judge ( IAJ) ruled that for the statutory occupational
disease presumption to apply, Gorre had to provide at least some supporting medical information
or an affidavit from one of his doctors —some evidence other than a mere allegation that he had a
lung condition.14 The IAJ denied Gorre' s motion for summary judgment because he had failed
to provide such medical evidence to support his motion.
Gorre brought' a second motion for summary judgment, this time attaching 39 exhibits,
which included a medical report and declaration from Dr. Goss, a copy of Rose Environmental' s
mold inspection at Gorre' s residence, Dr. Royce H. Johnson' s deposition, and correspondence
14 Gorre conceded that he had not submitted any affidavits or declarations with his motion for
summary judgment.
No. 43621 -3 -11
between Gorre and the City. The IAJ ruled that ( 1) interpretation of' RCW 51. 32. 185 was a
matter of first impression, (2) whether Valley Fever is a respiratory disease or infectious disease
is a question of fact, and ( 3) the Department had acted appropriately and had " correctly applied
the presumption "
15
because " Valley [ F] ever is not enumerated in the statute. " 16 Administrative
Report Proceedings
of , ( ARP) ( Mar. 8, 2010) at 88834. Instead of applying the statutory
presumption of disease for firefighters, RCW 51. 32. 185, the IAJ elected to treat Gorre' s case as a
17
normal " occupational disease claim under RCW 51. 08. 140; this election shifted to Gorre the
burden of proving that during the course of his employment he had suffered an occupational
exposure that caused his Valley Fever. The IAJ held hearings in June and July 2010. •
a) Gorre' s deponents
Dr. Christopher H. Goss ( deposed May 6, 2010)
Dr. Goss, a University of Washington associate professor of medicine and an adjunct
associate professor of pediatrics, is board certified in pulmonary medicine; he specializes in
pulmonary and critical care, and .pediatrics. He began treating Gorre in May 2007, after Dr.
Sandstrom referred Gorre for a review of Gorre' s lung biopsy and for an opinion on the possible
etiology of Gorre' s eosinophilic lung disease.'$ Gorre first reported symptoms of fevers,
15
Administrative Report of Proceedings ( ARP) ( Mar. 8, 2010) at 88835.
16 The Department never issued a ruling under RCW 51. 32. 185.
17 ARP (Mar. 8, 2010) at 88835.
18 We note that the IAJ decision and Board decision refer to the depositions and declarations of
Dr. Goss, Dr. Paul Bollyky, and Dr. Johnson as " testimony" and state that they " testified." But
the transcript does not reflect that they gave live testimony at the hearing in lieu of or in addition
to their deposition testimonies and declarations. See AR at 122 -23.
8
No. 43621 -3 -1I
dyspnea, an abnormal chest x -ay, an abnormal chest computerized tomography ( CT) scan, and a
r
positive response to antibodies in his serum. Dr. Goss interpreted Gorre' s biopsy report as
consistent with hypersensitivity pneumonitis, a lung disease that qualified as a respiratory
disease in patients sensitive to aeroallergens.
At the time Dr. Goss treated Gorre, Gorre had a bump that was not biopsied until months
later, which later developed into Valley Fever. Dr. Goss hypothesized that Gorre had developed
two diseases: ( 1) initially, eosinophilic lung disease, likely contracted from exposure to
aerosolized dust from his fire fighting duties; and ( 2) Valley Fever, likely contracted as a youth
in California and lying dormant/without symptoms but later disseminated by the steroids used to
treat Gorre' s eosinophilic lung disease. Dr. Goss defined " eosinophilic lung disease" as a broad
category of lung diseases that present with pulmonary infiltrates and eosinophils ( a specific kind
of white blood cell); Dr. Goss stated that eosinophilic lung disease is a respiratory disease.
Administrative Record Exhibits (ARE) at 18877.
Dr. Goss further opined that more probably than not, Gorre' s initial lung condition
related to his employment as a firefighter, and that Gorre did not contract Valley Fever in
Washington state. Dr. Goss referred Gorre to the University of Washington' s Infectious
Diseases Clinic for Valley Fever treatment.
Dr. Royce H. Johnson ( deposed January 7, 2010)
Dr. Johnson, a licensed medical doctor since 1971 and board certified since 1974, was
Chief of Infectious Diseases and Chair of the Department of Medicine at California' s Kern
Faculty Medical Group and Kern • Medical Center. He ran a large Valley Fever
coccidioidomycosis) clinic in California; and he has published papers and book chapters and
9
No. 43621 -3 -II
lectured extensively on Valley Fever. Dr. Johnson opined that Valley Fever is transmitted
through inhalation exposure to arthroconidia (fungal spores) in the soil, which can travel up to 75
miles; arthroconidis " set up housekeeping" in the lungs and usually cause pneumonic disease,
sometimes eosinophilic lung disease. AR at 1164. Valley Fever symptoms take about two to six
weeks to appear from the time of exposure. According to Dr. Johnson, Valley Fever occurs
throughout the southwest United States, northwest Mexico, Central America, and in South
America, not anywhere outside the western hemisphere, and in general not as far north as the .
state of Washington.
When he treated Gorre in January 21, 2009, 19 Dr. Johnson did not agree with Dr. Goss' s
theory that Gorre' s ingestion of steroids during his eosinophilia treatment had disseminated a
dormant cocci organism; instead, it was the other way around — the cocci had caused the
pneumonia with eosinophilia to develop. Nevertheless, Dr. Johnson opined that, more likely
than not, Gorre had acquired Valley Fever as part of work activity with the City of Tacoma Fire
Department, notably when dealing with fires and vehicle problems on 1 - 5. Dr. Johnson further
opined that even though Valley Fever is not endemic to Washington, it is possible for cocci spore
to spread through importation of substances into Washington.
b) Gorre' s witnesses
Gorre
Gorre testified that during his career as a City firefighter and emergency medic, he
responded to about 3; 000 residential fires and engaged in various activities such as pulling down
19 Dr. Johnson did not have Gorre' s medical records before Dr. Ayars' September 3, 2008 report.
10
No. 43621- 3- 11
ceilings, ripping out walls, and crawling through and moving furniture looking for fire survivors.
He had also responded to about 600 industrial fires and 2,500 vehicle, dumpster, electrical, and
hazardous fires; and he had encountered 6, 000 exposures to chemicals and 15, 000 exposures to
diesel fumes. Most of the tine, he, like the other firefighters, did not wear a self -
contained
breathing apparatus ( SCBA), which directly exposed him to smoke, fumes, and toxic substances.
Gorre similarly lacked respiratory protection when ( 1) entering houses containing cat and human
feces; ( 2) responding to calls in nursing homes, where he had close contact with patients with
respiratory diseases; ( 3) inspecting chicken processing plants, where he was exposed to chicken
feathers and droppings; ( 4) inspecting wood manufacturing plants filled with sawdust; ( 5) deep
trenching into soils to set up rigging systems; and ( 6) fighting wildfires.
Gorre' s fire fighting job with the City also required him to dig foundations for rescue
operations at construction sites. He frequently responded to multiple casualty incidents on the
main I - corridor, rescuing and assessing victims and suppressing tractor trailer fires; these
5
freeway calls exposed him to blood, muck, dirt, diesel exhaust, and brake dust. Gorre was also
exposed to various molds: There was green mold growing around the windows and covering the
air conditioner filters at the fire station where he worked; he was also exposed to mold and
different mushroom spores of mushrooms growing on walls at various houses to which he was
called for emergency response. Gorre further testified that he was not a smoker. Gorre had tried
a cigarette once in fourth grade and in high school, smoked cigars on special occasions, and
chewed tobacco when he played baseball.
11
No. 43621 -3 -I1
Darrin S. Rivers
for the Gorre' Emergency Medical Technician partner. He
Rivers had worked City as s
testified that off duty, he and Gorre had travelled to California and Nevada several times between
2000 to 2005, and that they had made a couple houseboat trips to Lake Shasta in 2000 and 2001
and a couple trips to Las Vegas to play golf.
Rivers testified that in their line of work, firefighters are exposed to all forms of
particulates from residential and commercial fires. When responding to house fires, firefighter
paramedics are exposed to smoke from combustion products, such as wood and wood frames,
and toxic chemicals from the burning of couches, polyesters, clothing, carpet, and drapes.
Depending on the type of structure or business, commercial fires expose . firefighters to
chemicals, acetones, and paints, among other products of combustion: For example, as a
firefighter, Rivers had been exposed to animal feces all over the floors, mold and fungi growing
on carpets, and hazardous material spills. Firefighters do not always wear SCBA: For example,
it was common practice for firefighters not to wear SCBA when responding to medical calls or
when tearing out ceilings to look for small hidden fires during an overhaul. Even if a firefighter
wears SCBA, after taking it off, the firefighter still exposes himself to soot and products of
combustion that linger on helmets and bunker gear.
When responding to emergency medical service calls, firefighters come in close contact
with patients who have respiratory infections and with infectious bacteriological or viral disease
processes. When responding to freeway collisions, firefighters are exposed to fuel and other
spills, antifreeze, and materials blown by freeway speed traffic.
12
No. 43621 -3 -II
Glen Zatterberg
Zatterberg, a City firefighter, testified that firefighters were exposed to mold in various
20
circumstances at " Station No. 9 " where Gorre worked: ( 1) Station 9 had aluminum windows
that collected condensation, and mold would be found around those windows; and ( 2) Station 9
also had in-window air conditioning units, whose filters were not cleaned regularly and which
developed mold problems. Firefighters were also exposed to inhaling diesel exhaust and house
fires. . During initial deployment, firefighters would not wear SCBA until they entered a
building' s interior. And before 2007, firefighters were not required to wear SCBA when
removing ceilings and looking for places with hidden fires during overhauls.
Matthew Simmons
Simmons, an ' employee of Rural Metro Ambulance, testified that he had been on
numerous calls with Gorre. Simmons described the sick patients and poor conditions of
residences that Gorre and Simmons faced in their line of work: Simmons .mentioned he had
similar respiratory symptoms and health problems, but the Board disallowed this specific
testimony about Simmons' health conditions.
c) City' s deponent and witnesses
Dr. Paul Laszlo Bollyky (deposed June 25, 2010)
Dr. Bollyky is a physician researcher at the Benaroya Research Institute and an infectious
disease doctor at the University of Washington. He stated that ( 1) most people with Valley
Fever end up contracting the flu or a transient lung disease that rarely requires any therapy, and
2) there was no way to tell where and how a patient had acquired Valley Fever. Dr. Bollyky
20 ARP (June 7, 2010) at 88133.
13
No. 43621 -3 -II
treated Gorre after his biopsy tested positive for Valley Fever. When he wrote Gorre' s medical
report in March 2009, Gorre' s Valley Fever diagnosis was uncontroverted and it was Valley
Fever that probably caused the symptoms that Gorre' s doctors initially diagnosed. Dr. Bollyky
further opined it was unlikely that steroid injections could disseminate Valley Fever, that Valley
Fever was not endemic to western Washington, that all his Valley Fever patients had either
travelled to or migrated from a Valley Fever endemic area, and that in light of Gorre' s having
lived in California and traveled to places where coccidioidomycosis was endemic, the most
likely probability was that he had acquired Valley Fever in those places.
Dr. Garrison H. Ayars
Dr. Ayars, an allergy and immunology physician, testified that Valley Fever is endemic
to the Sonoran desert, California, southern Nevada, Arizona, New Mexico, and Texas. He
described Valley Fever symptoms as pulmonary symptoms that generally occur within one to
three weeks of exposure, but which do not surface until years later for some individuals.
Although not personally aware of any Valley Fever cases in Washington state, he had reviewed
department of health records reporting that there were 15 Valley Fever cases in Washington
within a ten - ear period, the majority of which had involved Valley Fever acquired outside
y
Washington.
Dr. Ayars started treating Gorre in September 2008, at which time he had Gorre' s
medical records from Drs. Goss and Johnson, plus Gorre' s records from Edmonds Family
Medicine, Tacoma General, Lakeshore Clinic, University of Washington, and the Skin Cancer
Clinic of Seattle. Dr. Ayars felt that Gorre had no acute significant inhalation exposure or lung
injury. Dr. Ayars disagreed with Dr. Goss' s opinion that Gorre' s ingestion of treatment steroids
14
No. 43621 -3 -11
had caused his Valley Fever to disseminate; Dr. Ayers based this opinion on Gorre' s Valley
Fever symptoms, such as skin problems, that do not happen with eosinophilia. Dr. Ayars opined
that ( 1) Gorre had only one diagnosis, Valley Fever, and no separate independent respiratory
disease; ( 2) Gorre did not contract Valley Fever in Washington; ( 3) Gorre' s having lived in
California from 1994 to 1997 and travels all over California since that time provided significant
exposure to the Valley Fever organism in an endemic area; and ( 4) Gorre' s symptom onset in
February 2006 suggested he had been exposed to the Valley Fever spores when he was in Las
Vegas in December 2005 and, thus, it was likely he had contracted Valley Fever in Nevada and
had brought it with him to Washington.
Dr. Emil J. Bardana, Jr.
Dr. Bardana is a physician and allergist with a research background in occupational resin
exposure and causation issues. In September 2009 .he reviewed Gorre' s medical reports and
letters from Dr. Ayars and Dr. Goss; Dr. Bardana issued a report in October. He testified that
there is no such thing as an eosinophilic lung disease, which is an ambiguous term for a group of
disorders that have eosinophilic lung inflammation, not a specific disease. He further testified
that eosinophilic lung disease in firefighters is almost anon-issue, and hypothesized that Gorre
had developed pulmonary eosinophilic syndrome as a result of his Valley Fever, likely
contracted during his golf trip to Las Vegas.
Dr. Bardana testified that Valley Fever, a fungal infection, is endemic in the southwestern
part.of the United States, Nevada, Utah, New Mexico, and Texas. • He opined that (1) Gorre did
not have separate and distinct respiratory diseases or conditions apart from Valley Fever
symptoms; and ( 2) given that Gorre had been in Las Vegas in October 2005 and developed
15
No. 43621 -3 -11
symptoms of Valley Fever starting in December 2005, his trip to Las Vegas could have been his
primary exposure to Valley Fever. Dr. Bardana further noted that Gorre' s medical records
showed that, despite a chewing tobacco history, Gorre' s exposure to tobacco had been minimal.
Dr. Payam Fallah Moghadam
Mycologist Dr. Fallah testified that the Valley Fever organism exists in sterile soil; he.
opined that it is confined to places such as the lower Sonoran desert, Utah, southern Utah,
Nevada, southern Nevada, New Mexico, Arizona, Texas, and the San. Diego/Mexico border. He
further testified that this organism ( 1) does not exist in the fertile soil of western Washington; (2)
cannot be found in Pierce County, anywhere along the I - corridor, or in western Washington
5
grasslands and wildlands; and ( 3) cannot withstand fire, and will die off at 125 to 130 degrees
fahrenheit.
Dr. Marcia J. Goldoft
Washington State Department of Health epidemiologist Dr. Goldoft testified that she
tracks " notifiable" conditions21 of infectious or communicable diseases in Washington State, that
Valley Fever is not a " notifiable" condition in Washington State, and that Valley Fever is not
even " classified" by our state Department of Health because it is rare in Washington. ARP (June
24, 2010) at 88536. From 1997 to 2009, there were 15 reported cases of Valley Fever in
Washington, reported as " rare diseases" to the Department of Health, with none confirmed as
originating from exposures in Washington State.. ARP (June 24, 2010) at 88536.
21 " Notifiable" conditions are those that require reporting under the Washington Administrative
Code. ARP ( June 24, 2010) at 88535.
16
No. 43621 -3 -I1
Drs. Buckley Allan Eckert and Stuart Mark Weinstein
Dr. Eckert, an internal medicine physician, testified that he had evaluated Gorre on
Coxsackievirus22,
March 8, 2007. At the time, Gorre had night sweats, periodic bouts of fever,
and bilateral finger numbness. Dr. Eckert also testified that Gorre was a former smoker, who
had quit smoking in 1990. Dr. Weinstein, a Harborview Medical Center physician, testified that
he had evaluated Gorre on April 18, 2002. At that time, Gorre said he had been a non -
smoker
since age 30, when he quit smoking cigars, which he had begun at age 20.
d) IAJ' s ruling
The IAJ issued a proposed decision and order affirming the Department' s March 2009
denial of Gorre' s claim. Specifically, the IAJ made the following findings of fact, summarized
as follows: ( 1) In February 2006, Gorre developed symptoms of, and his doctor later diagnosed
him with an infectious disease, Valley Fever, and Gorre did not develop a respiratory disease or a
lung condition; and ( 2) Gorre' s Valley Fever did not arise naturally and proximately from his
occupation as a firefighter for the City. Based on these findings, the IAJ issued the following
conclusions of law, summarized as follows: ( 1) Gorre did not incur any disease that arose
naturally and proximately from distinctive conditions of his employment with the City' s fire
department under RCW 51. 08. 140, and (2) the Department' s March 24, 2009 order was correct.
22 Coxsackievirus is a group of viruses responsible for a variety of diseases in humans, such as
human herpangina, hand -
foot -
and -
mouth disease, epidemic pleurodynia, and aseptic meningitis.
See STEDMAN' S MEDICAL DICTIONARY 406 (26th Ed. 1995).
17
No. 43621 -3 -1I
2. Board' s ruling on appeal
Gorre petitioned the Board to review ( 1) the IAJ' s ruling that he had not suffered a
respiratory disease under RCW 51. 32. 185; ( 2) the IAJ' s ruling that the burden of proof was on
him ( Gorre) to show an occupational relationship between his disease and his job; ( 3) the IAJ' s
ruling that he did not suffer an occupational disease, even though he showed he had two
respiratory diseases, eosinophilia and coccidioidomycosis ( Valley Fever); ( 4) the IAJ' s failure to
apply the RCW 51. 32. 185 presumption of occupational disease, and ( 5) the IAJ' s rulings that he
did not develop any respiratory or infectious diseases in the workplace. The City cross -
petitioned the Board ( 1) to review the TAP s failure to issue a finding or a conclusion that Valley
Fever is not a condition subject to RCW 51. 32. 185' s statutory presumption; and ( 2) to issue a
finding or conclusion that the City had rebutted this presumption, even if RCW 51. 32. 185 did
apply.
The Board reviewed the IAJ' s record of proceedings, concluded that the IAJ did not
commit any prejudicial error, affirmed the IAJ' s rulings, and added findings of fact and
conclusions of law to clarify why Gorre'.s medical condition could not be presumed to be an
occupational disease under RCW 51. 32.185 and to explain why Gorre did not satisfy his burden
of proof. The Board made the following findings of fact, summarized as follows: ( 1) Gorre' s
exposure to the Valley Fever organism occurred during a November 2005 golfing trip to Nevada,
2) Valley Fever is an infectious disease, ( 3) Gorre became symptomatic of Valley Fever in
December 2005, and ( 4) Gorre did not contract any respiratory condition naturally and
his firefighter for the City Tacoma. Based on these
proximately caused by occupation as a of
findings, the Board made the following conclusions of law, summarized as follows: ( 1) during
18
No. 43621 -3 -11
the course of his employment with the City, Gorre did not develop any disabling medical
condition that the provisions of RCW 51. 32. 185 mandate be presumed to be an occupational
disease, ( 2) Gorre did not incur any disease that arose naturally and proximately from distinctive
conditions of his employment with the City, ( 3) the Department' s March 24, 2009 .order was
correct. Ruling that Gorre had not met these burdens, the Board affirmed the Department' s order
denying Gorre' s occupational disease claim.
C. Appeal to Superior Court
Gorre appealed the Board' s decision and order to superior court, where he moved for
summary judgment reversal of the Board' s rulings. Gorre argued that the Board had failed ( 1) to
apply the RCW' 51. 32. 185 presumptions of firefighter occupational respiratory disease and
infectious disease to his medical claims; and ( 2) to require the City to rebut these presumptions
by a preponderance of credible, admissible evidence that his medical conditions did not arise
from occupational exposure or from occupational aggravation of any preexisting condition.
The filed for summary judgment, arguing that ( 1) Gorre failed to
City a cross motion
establish a compensable claim under RCW 51. 32.185; ( 2) under RCW 51: 32. 185, Valleq Fever
is not a presumptive occupational disease and, thus, the superior court should affirm the Board' s
ruling; (3) RCW 51. 32.185 was also inapplicable because Gorre had a smoking history; (4) even
if the statutory presumption applied, the City had rebutted it; and ( 5) Gorre' s conditions did not
arise naturally and proximately from conditions of his employment with the City.
Gorre then submitted the following exhibits: Rose Environmental' s residential indoor .
environmental quality and mold evaluation, Dr. Goss' s declaration, and Dr. Bollyky' s letter. The
City filed a motion to strike these exhibits and Gorre' s reference to Simmons' testimony, arguing
19
No. 43621 -3 -I1
that the superior court should prohibit . Gorre from offering new exhibits and inadmissible
testimony under RCW 51. 52. 115.23 Gorre responded that ( 1) he had already submitted the Rose
Environmental report to the Board; (2) Dr. Goss' s declaration was already included as an exhibit
in Gorre' s renewed motion for summary judgment before the Board; ( 3) Dr. Bollyky had
previously testified about the aforementioned letter and its contents during his deposition, which
was part of the record; and ( 4) Simmons' testimony was admissible.
24
The superior court orally affirmed the Board' s decision, ruling that ( 1) it was " a little
25
hard to support factually" that Gorre had contracted Valley Fever in Washington; (2) Gorre did
not have separate diseases of eosinophilia and interstitial lung disease because " what people
were seeing were symptoms of the cocci that he did have "; and ( 3) Gorre was not a smoker -
h] is testimony was that he smoked a little bit as a kid and had an occasional cigar. I don' t
think smoking was an issue here at all." Verbatim Transcript of Proceedings ( VTP) ( Mar. 30,
2012) at 55, 56. The superior court denied the City' s request for deposition costs incurred at the
Board level, finding that the City had incurred these costs for the Board action, not for the
superior court action.
23 When the City asked the superior court to rule on its motion to strike Gorre' s exhibits, Gorre
voluntarily withdrew Dr. Bollyky' s letter. The court stated it would rule on the motion to strike
later, but it never did.
24 The record does not show that the superior court ruled expressly on the parties' cross motions
for summary judgment. Instead, it appears that the superior court followed the legislature' s
statutorily prescribed procedures for judicial review of administrative workers' compensation
decisions, which we describe more fully in the standard of review section of this opinion' s
analysis section.
25
Verbatim Transcript of Proceedings ( VTP) ( Mar. 30, 2012) at 54.
20
r
No. 43621 -3 -II
Ruling that a preponderance of the evidence supported the Board' s findings of fact, the
superior court issued a written ruling adopting the Board' s findings of fact and conclusions of
law and affirming the Board' s denial of Gorre' s occupational disease claim. The superior court
entered additional findings of fact that Gorre was not a smoker, that he had coccidioidomycosis,
that his symptoms were manifestations of his coccidioidomycosis, and that he did not have
separate diseases of eosinophilia or interstitial lung disease. The superior court ordered Gorre to
pay statutory attorney fees of $ each to the City and to the Department under RCW 4. 84.080,
200
but it denied the City' s request for deposition costs.
D. Appeal to Court of Appeals
Gorre appeals the superior court' s .rulings and affirmance of the Board' s denial of his
occupational disease claim. In particular he challenges the superior court' s and the Board' s
failures ( 1) to recognize three separate statutorily presumptive occupational respiratory
conditions; ( 2) to exclude prejudicial, confusing, and misleading evidence; and ( 3) to award him
attorney fees and costs, including expert witness fees. The City cross -appeals the superior
court' s failure ( 1) to find that Gorre was a smoker, ( 2) to award the City deposition costs under
RCW 4.84. 010 and RCW 4. 84.09026, and ( 3) to rule on City' s motion to strike and to exclude
inadmissible documents and unsupported assertions.
26 The legislature amended RCW 4. 84. 010 in 2007 and 2009; and amended RCW 4. 84. 090 in
2011. The amendments did not alter the statutes in any way relevant to this case; accordingly,
we cite the current version of the statute.
21
No. 43621 -3 -II
ANALYSIS
Gorre argues that the superior court and the Board erred in ( 1) failing to apply RCW
51. 32. 185' s presumption that firefighters' respiratory and infectious diseases are prima facie
occupational diseases under RCW 51. 08. 14027; and (2) consequently, failing to place on the City
the burden of rebutting this presumption. The City and Department respond that Gorre had only
Valley Fever and no other separate disease and, thus, the superior court did not err in finding that
he did not qualify for this evidentiary presumption of occupational disease under RCW
51. 32. 185.
On cross appeal, the City argues that the superior court erred in ( 1) finding that Gorre
was not a smoker, ( 2) failing to strike the evidence Gorre presented at the superior court level,
and ( 3) failing award the
to . City its deposition costs. Gorre responds that the superior court did
not err in ( 1) finding that he was not a smoker, because the record does not support such a
finding; ( 2) failing to grant the City' s motion to strike evidence Gorre presented at the superior
court level; and ( 3) denying the City statutory fees for deposition costs it incurred for the Board
action. Except for those we can combine, we address each argument in turn.
I. STANDARD OF REVIEW
Unlike other administrative decisions, the legislature has charged the courts with
reviewing workers' compensation cases " as in other civil cases." RCW 51. 52. 140. As Division
One has clarified:
27
More specifically, Gorre asserts that he had separate diseases, Valley . Fever and •
eosinophilialinterstitial lung disease, both of which constitute respiratory and infectious diseases
qualifying for this presumption.
22
No. 43621 -3 -I1
Washington' s Industrial Insurance Act includes judicial review provisions
that are specific to workers' compensation determinations. In particular, the act
provides that superior court review of a Board determination is de novo, that it
includes the right to a jury trial, and that the party seeking review bears the
burden ofshowing that the Board's decision was improper:
The hearing in the superior court shall be de novo, but the court shall not
receive evidence or testimony other than, or in addition to, that offered
before the board or included in the record filed by the board in the superior
court as provided in RCW 51. 52. 110.... In all court proceedings under
or pursuant to this title 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. If the court shall determine that the board has acted
within its power and has correctly construed the law and found the facts,
the decision of the board shall be confirmed; otherwise, it shall be
reversed or modified.
Rogers v. Dep' t of Labor & Indus., 151 Wn. App. 174, 179, 210 P.3d 355 ( emphasis added)
quoting RCW 51. 52. 115), review denied, 167 Wn.2d 1015 ( 2009).
Applying these statutory standards, the superior court treats the Board' s decision as
prima facie correct under RCW 51. 52. 115" such that it "may substitute its own findings and
decision for the Board' s only if it finds from a fair preponderance of credible evidence, that the
Board' s findings and decision are incorrect" Rogers, 151 Wn. App. at 180 ( citing Ruse v. Dep' t
1999)). On appeal of the superior court' s
of Labor & Indus., 138 Wn.2d 1, 5, 977 P. 2d 570 (
worker' s compensation decision, however, -
w]e review whether substantial evidence supports the trial court' s factual
findings and then review, de novo, whether the trial court' s conclusions of law
flow from the findings."
Rogers, 151 Wn. 180 ( emphasis Watson v. Dep' t of Labor & Indus., 133.
App. at added) ( quoting
23
No. 43621 -3 - II
Wn. App. 903, 909, 138 P. 3d 177 ( 2006) ( citing Ruse, 138 Wn.2d at 5) 28 In so doing, we also .
review de novo the legality of the Board' s decisions, like the superior court, relying solely on the
evidence presented to the Board. RCW 51. 52. 115; Raum v. City ofBellevue, 171 Wn. App. 124,
139, 286 P. 3d 695 ( 2012), review denied, 176 Wn.2d 1024 ( 2013); Dep' t of Labor & Indus. v.
Avundes, 95 Wn. App. 265, 269 -70, 976 P.2d 637 ( 1999), aff'd, 140 Wn.2d 282, 966 P.2d 593
2000).
28 As Division One further explained:
This statutory review scheme results in a different role for the Court of
Appeals than is typical for appeals of administrative decisions pursuant to, for
example, the Administrative Procedure Act [ ch. 34. 05 RCW], where we sit in the
same position as the superior court. To be clear, unlike in those cases, our review
in workers' compensation cases is akin to our review of any other superior court
trial judgment: ` " review is limited to examination of the record to see whether
substantial evidence supports the findings made after the superior court' s de novo
review, and whether the court's conclusions of law flow from the findings. "'
Ruse, 138 Wn.2d at 5 ( quoting Young V. Dep' t of Labor & Indus., 81 Wn. App.
123, 128, 913 P. 2d 402 ( 1996))... .
Our function is to review for sufficient or substantial evidence, taking the
record in the light most favorable to the party who prevailed in superior
court. We are not to reweigh or rebalance the ,competing testimony and
inferences, or to apply anew the burden •of persuasion, for doing that
would abridge the right to trial by jury.
Harrison Mem' l Hosp. v. Gagnon, 110 Wn. App. 475, 485, 40 P.3d 1221 ( 2002)
footnotes omitted). The Industrial Insurance Act itself encapsulates this
rationale, providing that "[ a]ppeal shall lie from the judgment of the superior
court as in other civil cases." RCW 51. 52. 140 ( emphasis added). •... We do not
review the trial court' s factual determinations de novo.
Rogers, 151 Wn. App. at 180 -181 ( internal footnotes omitted).
24
No. 43621 -3 -II
II. GORRE' S VALLEY FEVER: QUALIFYING DISEASE FOR RCW 51. 32. 185 PRESUMPTION29
We agree with Gorre that ( 1) his contracting Valley Fever was a " respiratory disease,"
which qualifies for the statutory presumption of an " occupational disease" under RCW
51. 32. 185; ( 2) the Department, the IAJ, the Board, and the superior court all erred in failing to
apply this statutory presumption to his worker' s compensation claim; and ( 3) consequently, they
erred in placing the burden on Gorre to prove his occupational disease instead of placing the
burden on the City to rebut this statutory presumption.
A. RCW 51. 32. 185: Occupational Disease Presumption for Firefighters
We recognize that generally, in order to obtain workers' compensation benefits, the initial
burden is on the worker to show that he or she developed an " occupational disease" that arose
naturally and proximately out of employment. RCW 51. 08. 140; Ruse, 138 Wn.2d at 6. But our
legislature carved out a unique exception for firefighters when it enacted RCW 51. 32.185, which
establishes a rebuttable evidentiary presumption that certain diseases contracted by firefighters
are " occupational diseases" covered under the Industrial Insurance Act30. RCW 51. 32. 185 ( 1):
In the case of firefighters as defined in [ former] RCW 41. 26. 030( 4) ( a),
b), and ( c) [( 2009)] who are covered under Title 51 RCW ... , there shall exist a
29 Gorre appears to argue that RCW 51. 32. 185 creates a separate claim for an occupational
disease other than those that the statute lists as recognized firefighter occupational diseases. We
disagree: RCW 51. 32. 185( 1) does not create anew cause of action; rather, it creates a rebuttable
presumption" that specified firefighter diseases are " occupational" diseases for
evidentiary "
workers' compensation purposes. See, e.g., Raum, 171 Wn. App. at 144. Instead, we agree with
Division One of our court, which reviewed the legislative history behind RCW 51. 32. 185 and
held that it does not create a separate occupational disease claim different from that in RCW
51. 08. 140; instead, " RCW 51. 32. 185 does [ no] more than create a rebuttable evidentiary
presumption." Raum, 171 Wn. App: at 144.
30 Title 51 RCW.
25
No. 43621 -3 -1I
31]; ...
prima facie presumption that: ( a) Respiratory disease[ and ( d ) infectious
3].
diseases[ 32] are occupational diseases under RCW 51. 08. 140[ This
presumption of occupational disease may be rebutted by a preponderance of the
evidence. Such evidence may include, but is not limited to, use of tobacco
34],
products[ physical fitness and weight, . lifestyle, hereditary factors, and
exposure from other employment or nonemployment activities.
31 The legislature accompanied its 1987 promulgation of this evidentiary presumption with the
following findings:
The legislature finds that the employment of fire fighters exposes them to smoke,
fumes, and toxic or chemical substances. The legislature recognizes that fire
fighters as a class have a higher rate of respiratory disease than the general public.
The legislature therefore finds that respiratory disease should be presumed to be
occupationally related for industrial insurance purposes for fire fighters.
LAWS OF 1987, ch. 515, § 1
32 RCW 51. 32. 185( 4) provides:
The presumption established in subsection ( 1)( d) of this section shall be
extended to any firefighter who has contracted any of the following infectious
diseases: Human immunodeficiency virus /acquired immunodeficiency syndrome,
all strains of hepatitis, meningococcal meningitis, or mycobacterium tuberculosis.
Emphasis added.)
33
As is the case for any workers' compensation claim, RCW 51. 08. 140 defines "[ o] ccupational
disease" as " such disease or infection as arises naturally and proximately out of employment
under the mandatory or elective adoption provisions of this title." RCW 51. 32. 185, however,
shifts the burden of disproving such occupational disease to the employer once the firefighter
shows that he has a respiratory, infectious, or other qualifying disease under this statute.
34 RCW 51. 32. 185( 5) further provides:
Beginning July 1, 2003, this section does not apply to a firefighter who
develops a heart or lung condition and who is a regular user of tobacco products
or who has a history of tobacco use. The department, using existing medical
research, shall define in rule the extent of tobacco use that shall exclude a
firefighter from the provisions of this section.
26
No. 43621 -3 -II
Emphasis added). 35 For purposes of the instant appeal, we focus on only the respiratory and
infectious occupational diseases that Gorre claims he suffered in the course of his employment as
a City firefighter.
For the RCW 51. 32. 185( 1) presumption of occupational disease to apply, the firefighter
must show that he has one of the four categories of diseases listed in the same statutory
subsection. 36 Raum, 171 Wn. App. at 147; WAC 296 -14 -310. Only two of these categories are
at issue here: respiratory diseases and infectious diseases. Under the plain language of the RCW
51. 32. 185( 1), once the firefighter shows that he has one of these types of diseases, triggering the
presumption that the disease is an " occupational disease," the burden shifts to the
statutory
employer to rebut the presumption by a preponderance of the evidence by showing that the
origin or aggravator of the firefighter' s disease did not arise naturally and proximately out of his
employment. Raum, 171 Wn. App at 141 ( citing RCW 51. 32. 185( 1)). If the employer cannot
meet this burden, for example, if the cause of the disease cannot be identified by a preponderance
of the evidence or even if there is no known association between the disease and firefighting, the
35 This statutory presumption furthers the legislature's intent that the Industrial Insurance Act be
remedial in nature and "` reduc[ e] to a minimum the suffering and economic loss arising from
injuries death occurring in the course of employment. "'
and/ or Dennis v. Dep' t of Labor &
Indus., 109 Wn.2d 467, 474, 745 P. 2d 1295 ( 1987) ( quoting RCW 51. 12. 010).
36 If the firefighter has some other type of disease, such that this evidentiary presumption does
not apply, the burden of proof is on him to prove that the disabling condition is an " occupational
disease" under RCW 51. 08. 140, which requires proving that the condition arose naturally and
proximately out of his employment. Raum, 171 Wn. App. at 152.
27
No. 43621 -3 -II
37
firefighter employee maintains the benefit of the occupational disease presumption.
B. Record Supports Agency' s Finding Single Medical Condition: Valley Fever
Gorre asserts that he suffered from additional separate diseases, such as eosinophilia or
interstitial lung disease. Whether he suffered from one or multiple diseases is a question of fact.
As we previously noted, we apply, the substantial evidence standard to the superior court' s
findings of fact, which, in turn, could " substitute its own findings and decision for the Board' s
only if it finds from a fair preponderance of credible evidence, that the Board' s findings and
decision are incorrect." Rogers, 151 Wn. App. at 180; RCW . 52. 115.. Again, this substantial
51.
evidence standard is highly deferential to the agency fact finder; and we do not weigh the
evidence or substitute our judgment for the agency' s judgment about witness credibility. See
Chandler v. Office of Ins. Comm' r, 141 Wn. App. 639, 648, 173 P. 3d 27.5 ( 2007). Applying
these standards here, we hold that the record supports the Board' s and the superior court' s
The following factual issues may reappear on remand:- To the extent that the parties elect not
to relitigate these issues, we rule on Gorre' s factual challenges as follows: Gorre argues that the
superior court and the Board erred in (1) fmding that he had only one medical condition, Valley
Fever, and failing to acknowledge that he had two separate and distinct diagnoses -
eosinophilia/ interstitial lung disease and Valley Fever; ( 2) failing to acknowledge that either of
these conditions qualified for the occupational disease presumption under RCW 51. 32. 185( 1);
and ( 3) failing to apply this statutory presumption, which would have shifted the burden to the
City to show that his diseases did not arise from his firefighter employment.
We disagree with Gorre' s first point and agree with the City' s argument on cross appeal
that, despite his respiratory symptoms, Gorre established only Valley Fever, and not an
additional separate disease. But we agree with Gorre' s second point— that Valley Fever is both a
respiratory disease and an infectious disease for purposes of RCW 51. 32. 185( 1)' s statutory
presumption of an occupational disease, and with his third point— the Board and the superior
court erred in failing to apply this statutory presumption to shift the burden of proving the
disease' s non- occupational origin to the City..
28
No. 43621 -3 -1I
finding that Gorre suffered from a single medical condition, namely Valley Fever, which Board
finding Gorre did not overcome by a preponderance of the evidence.
Only Dr. Goss believed that Gorre originally had a separate lung condition —eosinophilic
lung disease, which when treated with steroids caused Gorre' s onset of Valley Fever, a second
disease. Gorre' s other expert, Dr. Johnson, together with the other doctors and experts,
disagreed with Dr. Goss' s theory that Gorre' s ingestion of steroids to treat eosinophilic lung
disease disseminated a dormant cocci organism, which caused the onset of Gorre' s Valley Fever.
Rather, the other doctors . and experts reached the opposite conclusion —it was the dormant
Valley Fever cocci that caused Gorre' s respiratory, flu -ike symptoms ( for example, pneumonia)
l
Valley Fever. Dr. Bardana, for example, ( 1) testified that
to develop and manifest as
eosinophilic lung disease in firefighters is almost a non -
issue; and ( 2) hypothesized that Gorre
had developed pulmonary eosinophilic syndrome from his preexisting dormant Valley Fever
such that Gorre had " one disease, ... not two diseases," adding, "[ I]t' s crystal clear, and I think
everybody except Dr. Goss agrees with that." ARP (June 24, 2010) .at 88519.
We affirm the Board' s and the superior court' s findings that Gorre did not have separate
symptoms of eosinophilia or interstitial lung disease and that he had only one medical condition,
Valley Fever, from which his various respiratory symptoms flowed.
C. Gorre' s Valley Fever —Statutorily Presumptive Occupational Disease
We next address the Board' s and the superior court' s findings that Gorre' s Valley Fever
was not an occupational disease under RCW 51. 08. 140 because he failed to prove a specific
injury during the course of his employment and because he did not contract any respiratory
conditions that arose naturally and proximately from distinctive conditions of his employment
29
No. 43621 -3 -II
with the City. We agree with Gorre that ( 1) the Board and the superior court erred in failing to
apply the presumption of occupational disease in RCW 51. 32.185 and instead placing the burden
of proving an occupational disease on him38; and ( 2) Valley Fever constituted both a respiratory
and infectious disease, either of which qualified for the evidentiary presumption of firefighter
occupational disease under RCW 51. 32. 185.
1. Statutory interpretation
RCW 51. 32. 185 (. )( a) and ( d) creates a prima facie presumption of occupational disease
1
for " respiratory diseases" and " infectious diseases." The statute does not define either of these
types of diseases, although it provides examples of some infectious diseases. If a statute' s
meaning is plain on its face, then we give effect to that plain meaning as an expression of
legislative intent. State ex rel. Citizens Against Tolls v. Murphy, 151 Wn.2d 226, 242, 88 P. 3d
375 ( 2004). When a statute is susceptible to more than one reasonable interpretation, however, it
is ambiguous and we use canons of statutory construction or legislative history. Dept. of
Campbell & Gwinn, LLC, 146 Wn.2d 1, 12, 43 P. 3d 4 ( 2002). Here, we use these
Ecology v.
canons of statutory construction to discern whether the legislature intended to include Gorre' s
Valley Fever and its related respiratory symptoms in its " respiratory diseases" and " infectious
diseases" qualifying for the occupational disease presumption under RCW 51. 32.185( 1).
38 More specifically, when the Department and the Board failed to apply the statutory
presumption, they erroneously placed on Gorre the burden to show that his respiratory symptoms
arose from his firefighting occupation stress instead of starting with the presumption of a
qualifying occupational disease under RCW 5. 32. 185( 1) and looking to the City to rebut this
presumption. This erroneous burden -shifting led to the Board' s denying Gorre benefits based on
its findings that ( 1) because Valley Fever is not native to Washington, Gorre' s trip to Las Vegas
or time spent in California constituted exposure to non -employment activity that caused his
Valley Fever; and ( 2) therefore, Gorre' s Valley Fever did not arise naturally and proximately
from the course of his employment.
30
No. 43621 -3 -II
We discern a statute' s plain meaning from the ordinary meaning of the language at issue,
the context in which that statutory provision is found, related provisions, and the statutory
scheme as a " whole." State v. Engel, 166 Wn.2d 572, 578, 210 P. 3d 1007 ( 2009). If a statute
does not define a term, however, we may look to common law or a dictionary for the definition.
State v. Pacheco, 125 Wn.2d 150, 154, 882 P.2d 183 ( 1994). If a term is susceptible to two or
more reasonable interpretations, it is ambiguous and we then look to other sources of legislative
intent. State v. Garrison, 46 Wn. App. 52, 54 -55, 728 P. 2d 1102 ( 1986).
Because Washington' s Industrial Insurance Act " is remedial in nature," 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). When engaging in
statutory interpretation, our fundamental. objective is to give effect to the legislature' s intent.
Campbell, 146 Wn.2d at 9 -10. Thus, such liberal construction is particularly appropriate for
statutes addressing firefighter injuries, whose employment exposes them to smoke, fumes, and
toxic or chemical substances and for whom our. legislature enacted special workers'
compensation protections: Recognizing that firefighters as a class have a higher rate of
respiratory disease than the general public, our legislature declared that for industrial insurance
purposes respiratory .disease is presumed to be occupationally related for firefighters. LAWS OF
1987, ch. 515, § 1.
31
No. 43621 -3 -II
a. Gorre' s Valley Fever is a respiratory disease under RCW 51. 32. 185.
RCW 51. 32. 185( 1)( a) provides that " respiratory diseases" are presumptively
occupational diseases under RCW 51. 08. 140. But Washington law does not define " respiratory
disease" in this context. Webster' s dictionary defines " respiratory" as " of or relating to
respiration." WEBSTER' S THIRD NEW INTERNATIONAL DICTIONARY . 1934 ( 2002). WEBSTER' S
defines " respiration" as " a single, complete act of breathing "39 it defines " disease" as " a cause of
discomfort or harm, "40 or " an impairment of the normal state of the living animal or plant body
or of its components that interrupts or modifies the part of the vital functions." WEBSTER' S
any
at 648 ( definition lb). Thus the dictionary definition of "respiratory disease" is a discomfort or
condition of an organism or part that impairs normal physiological functioning relating,
affecting, or used in the physical act of breathing.
The medical testimony established that Valley Fever impairs a person' s respiratory
system. Valley Fever expert Dr. Johnson opined that Valley Fever is transmitted through
inhalation exposure to arthroconidia in the soil that impacts in the lungs, usually causing
pneumonic disease. Although asserting that Valley Fever is an infectious disease ( and not a
respiratory disease), Dr. Ayars testified that ( 1) symptoms of Valley Fever are generally
pulmonary symptoms such as coughs, fever, and. sputum; ( 2) the cause of Valley Fever is
through the production of arthrospores in the air that when breathed into the lungs, causes
disease in humans; and ( 3) more severe Valley Fever leads to other pulmonary symptoms, such
as abscesses in the lungs, chronic pneumonias, and meningitis. Dr. Bardana testified that in
39 WEBSTER' S at 1934 (definition lb).
40 WEBSTER' S at 648 ( definition 2a).
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No. 43621 -3 -11
March 2007, Gorre' s pulmonary function showed a small airway obstruction and 40 percent
eosinophilia in his peripheral blood count, and a CT examination of his chest showed ground
glass deformities and nodularities.
It was undisputed that Gorre had Valley Fever 41 The record shows that Valley Fever is
an airborne disease that humans contract through inhalation, that the organism causing Valley
Fever impacts in the lungs, and that Valley Fever patients suffer respiratory symptoms and
pulmonary symptoms. Accordingly, we hold that ( 1) Valley . Fever meets the dictionary
definition of "respiratory disease " —an abnormal condition impairing the normal physiological
functioning of the respiratory system, which by definition includes the lungs, and therefore is a
respiratory disease" under RCW 51. 32. 185; and ( 2) the Board and the superior court erred in
failing to characterize Gorre' s Valley Fever as such.
b. Gorre' s Valley Fever is an " infectious disease" under RCW 51. 32. 185.
RCW 51. 32. 185( 1)( d) provides that " infectious diseases" are presumptively occupational
diseases under RCW 51. 08. 140. Although Washington law does not define " infectious disease"
in this context, RCW 51. 32. 185( 4) lists four specific infectious diseases that do qualify: " Human
immunodeficiency syndrome, all strains of hepatitis,
immunodeficiency acquired
virus /
meningococcal meningitis, or mycobacterium tuberculosis." The plain language of subsection
4) does not state that this list of four diseases is exclusive; rather it provides that "[ t]he
presumption established in subsection ( 1)( d) of this section shall be extended to any firefighter
who has contracted any of the following diseases[.]" RCW 51. 32. 185( 4) ( emphasis added).
41 The City disputed only Gorre' s Valley Fever origin, arguing that Gorre' s Valley Fever was not
related to his employment as a firefighter.
33
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No. 43621 -3 -11
The City and the Department argue that the legislature intended to limit .the scope of
specifically listed in RCW 51. 32. 185( 4). Gorre
qualifying infectious diseases to the ones
counters that because there is no limiting language in the statute to suggest otherwise, Valley
Fever constitutes an infectious disease under RCW 51. 32. 185. We agree with Gorre.
The statute' s use of the term " extended to" evinces the legislature' s intent to ensure
inclusion of the four diseases enumerated in subsection ( 4) under RCW 51. 32.185( 1)( d)' s
presumption of occupational disease status for firefighters' " infectious diseases" in general.
RCW 51. 32. 185( 1)( d). This reading is consistent with WEBSTER' s definition of "extend "42 as
meaning " to increase the, scope, meaning, or application of' and definition of "extended "43 as " to
have a wide range" or " of great scope."
In addition, nothing in the plain statutory language suggests that the legislature intended
this list of four diseases to be exclusive or even illustrative; rather, it appears that the legislature
included this statutory list so that firefighters could benefit from the statutory presumption of a
benefit-qualifying occupational disease if they contracted one of four specified serious infectious
diseases not otherwise recognized as occupational diseases: HIV, hepatitis,
perhaps readily
meningitis, and tuberculosis. Thus, this list of four specific diseases illustrates the legislature' s
42 WEBSTER' S at 804 ( definition 6b).
43 WEBSTER' S at 804 ( definition 4b).
34
No. 43621 -3 -11
44
intent to expand the scope of qualifying " infectious diseases," not to limit them.
Furthermore, we construe statutes to avoid absurd results. State v. Neher, 112 Wn.2d
347, 351, 771 P. 2d 330 ( 1989). Our legislature has clearly stated its intent to provide benefits for
firefighters, whose jobs constantly expose them to a broad range of dangers while protecting the
public; and again, we are to construe these benefits liberally. Thus, it would be absurd to read
this statutory provision as limiting the covered infectious diseases to only those four expressly
enumerated: Such absurd construction would mean that a firefighter exposed to methicilin-
resistant staphylococcus aureus ( MRSA) or other staphylococcus aureus ( staph infections), for
example, would not be covered under the statute.
Construing the statutory framework as a whole, we read the plain language of RCW
51. 32. 185( 4) as reflecting the legislature' s intent to include " infectious diseases" in general, not
to limit them to only the four specified diseases to which it "extended" coverage for firefighters
who contract these four named diseases. Given all the experts who opined that Valley Fever is
an infectious disease, we hold that Valley Fever is an " infectious disease" under RCW
44 In contrast, if the legislature had intended to limit the scope of infectious diseases covered
under the statute, it would have used limiting language similar to the language it used in the
immediately preceding subsection, RCW 51. 32. 185( 3):
The presumption established in subsection ( 1)( c) of this section shall 'only .
apply to any active or former firefighter who has cancer that develops or
manifests itself after the firefighter has served at least ten years and who was
given a qualifying medical examination upon becoming a firefighter that showed
no evidence of cancer. The presumption within subsection ( 1)( c) of this section
shall only apply to .. .
Emphasis added). The legislature' s use of the limiting term " only" in RCW 51. 32. 185( 3)
evinces its intent to limit the types of cancers covered under the statute. But there is no
corresponding limiting language in RCW 51. 32. 185( 4).
35
No: 43621 -3 -II
51. 32. 185( 1)( d) and that therefore it qualifies for the evidentiary presumption that Valley Fever
is an occupational disease under the Industrial Insurance Act.45
Because Gorre' s Valley Fever is both a respiratory disease and an infectious disease
under RCW 51. 32. 185( 1), the evidentiary presumption of firefighters' occupational disease
applies; the Board, and the superior court erred in considering Gorre' s benefits claim without
according him the benefit of this presumption and instead, treating it as a regular occupational
disease claim under Title 51 RCW, improperly placing the initial burden of proof on Gorre. We
reverse and remand for the Board to apply the statutory presumption to Gorre' s claim, thus
shifting the burden to the City to show by a preponderance of the evidence that Gorre' s Valley
Fever did not qualify as an occupational disease under RCW 51. 32. 185.
REMEDY46
III.
Having held that Gorre' s respiratory and/ or infectious Valley Fever qualified for the
presumption of firefighter occupational disease under RCW 51. 32. 185, we next address how to
the superior court' s failure to apply the presumption. To ensure that
remedy the Board' s and
Gorre receives the legislature' s clearly intended benefit of RCW 51. 32. 185( 1), we remand to the
Board to 'reconsider Gorre' s application for industrial insurance benefits, with instructions to
accord Gorre this statutory presumption of occupational disease and to place on the City the
45 Title 51 RCW.
46 Because we reverse and remand to the Board to reconsider Gorre' s claim under the applicable
law and the City does not prevail on appeal or on its cross appeal, we do not address the City' s
argument that the superior court erred in failing to award statutory fees for deposition costs it
incurred at the Board level under RCW 4. 84. 010 and RCW 4. 84.090.
36
No. 43621 -3 -11
burden of rebutting this presumption, if it can, by showing that Gorre' s presumed occupational
47
disease did not arise naturally and proximately from his employment
IV. CITY' S CROSS APPEAL
On cross appeal, the City argues that the superior court ( 1) erred in finding that Gorre
was not a smoker, (2) abused its discretion in "fail[ing] to strike" certain items of evidence, and
in its statutory Br. Resp' t/Cross- Appellant at 45. The City' s
3) erred failing to award costs. of
first and second arguments fail; because we reverse and remand, we 'do not address the third
argument.
A. Gorre Not a Smoker under RCW 51. 32. 185( 5)
The City argues that Gorre' s smoking history should preclude application of RCW
51. 32. 185' s occupational disease presumption to his benefits claim. Gorre responds that his
medical records and history established that he was not a smoker and provided substantial
evidence to support the Board' s and the superior court' s finding that he was not a smoker under
RCW 51. 32. 185. And there is no evidence in the record to the contrary; thus, we agree with
Gorre.
47 Because the Boardhas not yet considered Gorre' s application with the benefit of the statutory
presumption and its burden- shifting consequence, it is premature for us to address the City and
the Department' s cross appeal request to hold that the City effectively rebutted the 'presumption
by showing that Gorre did not incur any disease that arose naturally or proximately from his
employment and, therefore, did not qualify as an " occupational disease." Br. ofResp' t at 28; Br.
of Resp' t/Cross Appellant at 39_ See Raum, 171 Wn. App. at 151.
37
No. 43621 -3 -II
The City is correct that RCW 51. 32. 185' s evidentiary presumption of occupational
disease does not apply to a firefighter who is a regular user of tobacco products or who has a
history of tobacco use:
Beginning July 1, 2003, this section does not apply to a firefighter who
develops a heart or lung condition and who is a regular user of tobacco products
or who has a history of tobacco use. The department, using existing medical
research, shall define in rule the extent of tobacco use that shall exclude a
firefighter from the provisions of this section.
RCW 51. 32. 185( 5). The City is incorrect, however, that the evidence showed Gorre fell within
this statutory tobacco user category.
Neither the legislature nor the common law has defined the extent of tobacco use that
qualifies for this RCW 51. 32. 185( 5) exclusion from the statutory presumption of occupational
disease. But the Washington Administrative Code (WAC) has defined what constitutes a current
and former smoker: A " current smoker" " is a regular user of tobacco products, has smoked
tobacco products at least one hundred times in his [ or] her lifetime, and as of the date of
manifestation did smoke tobacco products at least some days." WAC 296 -14 -315. The record
does not support a finding that Gorre is a current smoker under this definition. A "former
smoker" " has a history of tobacco use, has smoked tobacco products at least one hundred times
in his [ or] her lifetime, but as of the date of manifestation did not smoke tobacco products."
WAC 296 -14 -315. The record does not support a finding that Gorre was a former smoker under
38
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No. 43621 -3 -1I
48
this definition. On the contrary, the record supports the Board' s and the superior court' s
finding that he was not a " smoker" under RCW 51. 32. 185( 5).
B. City' s Motion To Strike Evidence Presented in Superior Court
The City next argues that the superior court should have stricken Gorre' s new evidence:
the Rose Environmental report about the indoor environmental quality at Gorre' s residence, Dr.
Goss' s declaration about Gorre' s medical history, Dr. Bollyky' s letter about Gorre' s Valley
Fever and how Gorre' s exposure was possibly work -
related, and Matthew Simmons' -testimony
about his own medical conditions and how they potentially arose from his employment as a
firefighter. Gorre responds that the superior court did not err in admitting this evidence because
a superior court reviews a Board decision de novo. Again, we agree with Gorre.
A superior court reviews decisions under the Industrial Insurance Act de novo, relying on
the certified Board record. Raum, 171 Wn. App. at 139 ( citing RCW 51. 52. 115). Under RCW
51. 52. 115, a superior court may not receive evidence or testimony other than or in addition to the
evidence before the Board unless there were irregularities in the Board' s procedure. RCW
48 The City argues that the testimonies of Dr. Bardana, Dr. Eckert, and Dr. Weinstein establish
that Gorre was a former smoker. At most, however, the record shows that Gorre experimented
with smoking cigarettes in his youth and had an occasional cigar between the ages of 20 and 30.
City witnesses Dr. Eckert and Dr. Weinstein both testified that Gorre had quit smoking: Dr.
Eckert stated that Gorre had quit smoking in 1990, and Dr. Weinstein testified that Gorre' s
intake form stated that he had quit smoking at age 30 ( 1998). Dr. Bardana testified that Gorre' s
records showed that he had a chewing tobacco history, which he had stopped in 1997, but that
Gorre' s history of sampling cigars and chewing tobacco amounted to minimal, minuscule
amounts of tobacco exposure.
Gorre also testified that he was not a smoker; that he had tried a cigarette once in fourth
grade and in high school, that he had smoked cigars on special occasions, and that he had
chewed tobacco when he played baseball. Gorre also testified that he had written that he did not
smoke on his October 12, 2007 intake form for Dr. Kirkwood Johnston, his rheumatologist.
Gorre had similarly written on his May 2, 2007 intake form for Dr. Goss that he did not smoke.
39
No. 43621 -3 -II
51. 52. 115. A superior court has discretion to rule on a motion to strike evidence. King County
Fire Prot. Dist. No. 16 v. Hous. Auth. of King County, 123 Wn.2d 819, 825 -26, 872 P.2d 516
1994).
Contrary to the City' s argument, the Rose Environmental report was neither hearsay nor
49
new evidence; rather it was part of the Board record, which the superior court was entitled to
consider. Similarly, when the IAJ admitted Dr. Goss' s declaration into evidence, it became part
the Board record,50 which the superior court was entitled to consider, despite the City' s
hearsay characterization.. Because Gorre voluntarily withdrew Dr. Bollyky' s letter during the
superior court summary judgment hearing below, it is neither part of the record before us nor an
issue on appeal.
The City also asserts that the IAJ ruled Simmons' medical testimony was irrelevant and
disallowed it; and thus, the superior court erred in failing to strike Gorre' s reference to Simmons'
hearsay testimony in Gorre' s superior court brief. The City mischaracterizes Gorre' s use of
Simmons' testimony: Gorre did not use Simmons' testimony to further his summary judgment
arguments at the superior court level. Rather, Gorre merely explained to the superior court that
49 The City had moved to exclude this report at the Board level, but the IAJ did not rule on it.
Absent a ruling excluding this report, it remained part of the Board record. See RCW 51. 52.115.
5° An administrative court is not bound to follow the civil rules of evidence; on the contrary,
relevant hearsay evidence is admissible in administrative hearings. Nisqually Delta Ass' n v. City
of Dupont, 103 Wn.2d 720, 733, 696 P. 2d 1222 ( 1985); Pappas v. Emp' t Sec. Dept., 135 Wn.
App. 852, 857, 146 P. 3d 1208 ( 2006); Hahn v. Dep' t of Ret. Sys., 137 Wn. App. 933, 942, 155
P. 3d 177 ( 2007). See also RCW 34. 05. 452( 1), which summarizes the relaxed evidentiary
standards in administrative hearings and broad discretion for the presiding officer.
40
No. 43621 -3 -II
Simmons' testimony " was disallowed at the [ Board of Industrial Insurance Appeals] BIIA
hearing. "51 CP at 13.
CONCLUSION
We hold that the superior court did not err or abuse its discretion as the City asserts on
cross appeal. Thus, we affirm both the superior court' s finding that Gorre was not a smoker and
the superior court' s decision not to strike the evidence Gorre presented. But we reverse the
superior court' s findings of fact and conclusions of law ( 1) that Gorre did not have an
occupational disease under RCW 51. 08. 140, ( 2) that Gorre did not contract any respiratory
conditions arising naturally and proximately from his City employment, and (3) that the Board' s
decision and order are correct. We also reverse the corresponding Board findings and
conclusions that the superior court affirmed: Finding of Fact 1. 2; Conclusions of Law 2.2, 2. 3,
2.4.
We reverse the superior court' s affirmance of the Board' s denial of Gorre' s RCW
51. 32. 185 firefighter-occupational- disease worker' s compensation claim; we .also reverse the
underlying Board decision denying Gorre' s claim. We remand to the Board for reconsideration
of Gorre' s claim with instructions ( 1) to accord Gorre RCW 51. 32. 185' s evidentiary presumption
51 In other words, Gorre never offered Simmons' medical testimony at the superior court level.
Consequently, Simmons' testimony was not before the superior court and, thus, not subject to
being stricken.
41
No. 43621- 3- II
of occupational disease and ( 2) to shift the burden of rebutting this presumption to the City to
disprove this presumed occupational disease by a preponderance of the evidence that the disease
did not arise naturally or proximately out of Gorre' s employment.
42