IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
FRANK DEYOUNG,
No. 84561-6-I
Appellant,
DIVISION ONE
v.
THE CITY OF MOUNT VERNON; and ORDER GRANTING MOTION
THE DEPARTMENT OF LABOR AND FOR PARTIAL
INDUSTRIES, RECONSIDERATION, AND
WITHDRAWING OPINION, AND
Respondents. SUBSTITUTING OPINION
Respondent, Department of Labor and Industries, moved for partial
reconsideration of, and moved to publish (together, the “motions”), the opinion filed
on August 7, 2023. No opposition was filed.
A panel of the court has determined that respondent’s motions should be
granted, the original opinion should be withdrawn, and a substitute published
opinion be filed.
Now, therefore, it is hereby
ORDERED that the Respondent’s motions are granted; and it is further
ORDERED that the opinion filed on August 7, 2023, is withdrawn; and it is
further
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No. 84561-6-I/2
ORDERED that a substitute published opinion be filed.
2
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
FRANK DEYOUNG,
No. 84561-6-I
Appellant,
DIVISION ONE
v.
PUBLISHED OPINION
THE CITY OF MOUNT VERNON;
and THE DEPARTMENT OF LABOR
AND INDUSTRIES,
Respondents.
DÍAZ, J. — Frank DeYoung appeals the Department of Labor and
Industries’s decision to deny his application for occupational disease benefits.
DeYoung asserts that the 2018 amendments to the Industrial Insurance Act, which
permit firefighters to file claims for posttraumatic stress disorder, apply retroactively
to allow his claim, which manifested before the amendments became effective.
We agree with the Board of Industrial Appeals that the 2018 amendments apply
prospectively only and hold that DeYoung’s claim is not viable under the applicable
law. Accordingly, we affirm.
I. BACKGROUND
DeYoung was employed as a firefighter for the City of Mount Vernon from
August 2005 until November 2017. It is undisputed that, prior to June 2018,
No. 84561-6-I/2
DeYoung developed and showed symptoms of posttraumatic stress disorder
(PTSD) as the result of the traumatic events he witnessed as a firefighter.
In 2018, the legislature amended RCW 51.08.142 and RCW 51.32.185,
both part of the Industrial Insurance Act (the Act). Previously where mental
conditions and mental disabilities caused by stress were excluded from the
definition of “occupational disease,” these amendments now created an exception
applicable solely to firefighters and law enforcement officers permitting claims
resulting from PTSD. LAWS OF 2018, ch. 264 § 2. These amendments went into
effect on June 7, 2018. LAWS OF 2018, ch. 264.
DeYoung filed an application for occupational disease benefits on August
21, 2019. On October 4, 2019, the Department of Labor and Industries (the
Department) issued a Notice of Decision initially allowing DeYoung’s claim. Two
weeks later, on October 17, 2019, the Department canceled the October 4
decision. On October 24, 2019, the Department issued a decision rejecting
DeYoung’s claim for benefits, on the basis that PTSD is not an occupational
disease pursuant to Former RCW 51.08.140. Upon reconsideration, the
Department reaffirmed the rejection, finding that the amendments to RCW
51.32.185 were not retroactive.
DeYoung appealed to the Board of Industrial Insurance Appeals (BIIA).
Both parties filed motions for summary judgment. The BIIA agreed with the
Department, ruling that the statutory amendments were not retroactive. In so
ruling, the BIIA held that the statutory amendments created a new right and were
not remedial “because it does not relate to a practice, procedure or remedy.” It
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therefore granted the Department’s motion for summary judgment, denied
DeYoung’s motion, and affirmed the Department’s order rejecting DeYoung’s
claim for occupational disease benefits. DeYoung then appealed to the Skagit
County Superior Court, which affirmed the decision of the BIIA.
DeYoung appeals.
II. ANALYSIS
DeYoung’s entitlement to benefits depends primarily upon whether the
2018 amendments to RCW 51.08.142 and RCW 51.32.185 operate retroactively. 1
This is a pure question of law, which we review de novo. Weber v. State, Dep’t of
Corr., 78 Wn. App. 607, 609, 898 P.2d 345 (1995). We review the decision of the
superior court rather than the Board’s order, though “our review is based solely on
the evidence and testimony presented to the Board.” Smith v. Dep't of Labor &
Indus., 22 Wn. App. 2d 500, 506, 512 P.3d 566, review denied, 200 Wn.2d 1013,
519 P.3d 588 (2022) (citing RCW 51.52.115; Bennerstrom v. Dep't of Lab. &
Indus., 120 Wn. App. 853, 858, 86 P.3d 826 (2004)).
“Where a statute is within the agency’s special expertise, the agency’s
interpretation is accorded great weight, provided that the statute is ambiguous.”
Postema v. Pollution Control Hr’gs Bd., 142 Wn.2d 68, 77, 11 P.3d 726 (2000)
(citations omitted). “Ultimately,” however, “it is for the court to determine the
1 As will be discussed below, DeYoung also argues that this court should not apply
the “manifestation date” standard from an industrial injury to occupational injuries,
such a PTSD, and argues that “Act is inherently remedial and that all amendments
have retroactive effect unless otherwise specified.” However, both of these
arguments, as DeYoung implicitly recognizes, are issues of pure law and
secondary to a retroactivity analysis and will be analyzed as such.
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No. 84561-6-I/4
meaning and purpose of a statute.” Postema, 142 Wn.2d at 77 (citing City of
Redmond v. Central Puget Sound Growth Mgt. Hr’gs Bd., 136 Wn.2d 38, 46, 959
P.2d 1091 (1998).
In Washington, all workers are entitled to disability benefits under the Act,
chapter 51 RCW, for occupational diseases. Occupational disease is defined by
statute as “such disease or infection as arises naturally and proximately out of
employment under the mandatory or elective adoption provisions of this title.”
RCW 51.08.140. The exception to this rule is found in RCW 51.08.142.
Prior to 2018, RCW 51.08.142 stated, “The department shall adopt a rule
pursuant to chapter 34.05 RCW that claims based on mental conditions or mental
disabilities caused by stress do not fall within the definition of occupational disease
in RCW 51.08.140.” In 2018, the legislature amended this statute to add a second
subsection to exempt, among others, firefighters from the rule barring claims based
on mental conditions.
The amendment reads, in relevant part, as follows:
Except as provided in (b) and (c) of this subsection, the rule adopted
under subsection (1) of this section shall not apply to occupational
disease claims resulting from posttraumatic stress disorders of
firefighters as defined in RCW 41.26.030(17) (a), (b), (c), and (h) and
firefighters, including supervisors, employed on a full-time, fully
compensated basis as a firefighter of a private sector employer’s fire
department that includes over fifty such firefighters . . .
RCW 51.08.142(2)(a). In conjunction with this amendment, the legislature also
added a prima facie presumption for firefighters “that posttraumatic stress disorder
is an occupational disease under RCW 51.08.140.” RCW 51.32.185(1)(b).
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No. 84561-6-I/5
The parties in this matter dispute whether these amendments operate
retroactively to apply to claims that accrued prior to the amended statutes’s
enactment.
“A statute is presumed to operate prospectively unless the legislature
indicates that it is to operate retroactively.” Agency Budget Corp. v. Washington
Ins. Guar. Ass’n, 93 Wn.2d 416, 424, 610 P.2d 361 (1980) (citing Johnston v.
Beneficial Management Corp., 85 Wn.2d 637, 641, 538 P.2d 510 (1975); Amburn
v. Daly, 81 Wn.2d 241, 246, 501 P.2d 178 (1972)). “This presumption can only ‘be
overcome if (1) the Legislature explicitly provides for retroactivity, (2) the
amendment is ‘curative,’ OR (3) the statute is ‘remedial[.]’” Densley v. Dep’t of
Ret. Sys., 162 Wn.2d 210, 223, 173 P.3d 885 (2007) (internal citations omitted).
DeYoung contends that the third exception applies here, i.e., that the 2018
amendments to RCW 51.08.142 and 51.32.185 were remedial. As DeYoung
notes, the Act “is remedial in nature,” as it was designed to create a remedy for
injured workers where none previously existed. Ma’ae v. Dep’t of Labor & Indus.,
8 Wn. App. 2d 189, 199, 438 P.3d 148 (2019). However, the fact that a statutory
scheme is generally remedial in nature does not mean that all amendments to it
are remedial for purposes of this retroactivity analysis. Rather, a statute is
remedial if it “relates to practice, procedure, or remedies and does not affect a
substantive or vested right.” Miebach v. Colasurdo, 102 Wn.2d 170, 181, 685 P.2d
1074 (1984) (citing Johnston, 85 Wn.2d at 641); see also Agency Budget Corp.,
93 Wn.2d at 425.
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No. 84561-6-I/6
The difference is perhaps best demonstrated by Loeffelholz v. University of
Washington, 175 Wn.2d 264, 285 P.3d 854 (2012). In that case, an employee of
the University of Washington filed a claim against her employer for discrimination
on the basis of sexual orientation. In 2006, the legislature amended the
Washington Law Against Discrimination (WLAD), chapter 49.60 RCW, to include
sexual orientation as a protected class. LAWS OF 2006, ch. 4. Some of the
incidents of discrimination that the employee listed in her complaint occurred prior
to the effective date of the amendment, while only one had occurred after.
Loeffelholz, 175 Wn.2d at 269.
The employee argued, as DeYoung does here, that the amendments to the
WLAD were remedial because the WLAD is remedial in nature. Id. at 271. The
Supreme Court rejected that argument. Id. The Court held that the statutory
amendment was not remedial, and therefore not retroactive, based on both the
plain language of the statute, which did not specify that it was to be applied
retroactively, and on its legislative history. Id. at 271-72. Its legislative history
indicated that the legislature recognized that it was creating a new cause of action,
as the legislature had stated that “the amendment ‘expanded [the WLAD] to
prohibit discrimination based on a person's sexual orientation.’” Id. at 272 (quoting
FINAL B. REP. ON ENGROSSED SUBSTITUTE H.B. 2661, at 2, 59th Leg., Reg. Sess.
(Wash. 2006)). Because amendments which create new causes of action are not
considered remedial as they affect substantive rights, the court held that the
amendments to the WLAD operated prospectively only and the employee could
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No. 84561-6-I/7
only recover for the (single) incident that occurred after the statute’s effective date.
Id.
The amendments to RCW 51.08.142 and 51.32.185 function in much the
same way as amendments to the WLAD do. Like the 2006 amendments to the
WLAD, the 2018 amendments to the Act add a new category of people who can
file a claim – firefighters with PTSD. Legislative history supports this reading, as
the final bill report states that the amendments “[a]llow[] industrial insurance
coverage for posttraumatic stress disorders affecting law enforcement officers and
firefighters.” FINAL B. REP. ON SUBSTITUTE S.B. 6214, at 1, 65th Leg., Reg. Sess.
(Wash. 2018). These facts strongly suggest that the legislature amended the Act
to create a new type of claim for a new kind of claimant, which had not existed.
In response, DeYoung asserts that the plain language of the statutes
evinces the legislature’s intent for the amendments to apply retroactively. Namely,
DeYoung points to section (5) of RCW 51.32.185, which states that the
presumption that PTSD is an occupational disease “applies to active or former
firefighters.” (emphasis added). Id. We disagree. Former firefighters are included
among those who may file a claim for PTSD for the same reason they are included
under subsection (3) among those who may file a claim for cancer: given the nature
of the condition, it is possible that the condition will not manifest itself until after a
firefighter has left their employment. The language is not indicative of retroactivity.
DeYoung also asserts that the requirement in RCW 51.32.185(5) that a
firefighter must have served at least ten years before they are eligible to make a
claim indicates the legislature’s intent to apply the statute retroactively. According
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No. 84561-6-I/8
to DeYoung, applying the statute prospectively would mean that no firefighter will
be eligible to file a claim for occupational disease benefits for PTSD until 2028. Id.
The plain language of the statute does not support such an interpretation. The
statute establishes that only firefighters who have served the minimum number of
years may file a claim for occupational disease benefits for PTSD. Nothing about
the provision is indicative of retroactivity.
Nor does subsection (2)(b) of RCW 51.08.142, which makes a
psychological examination, if offered by the employer, a prerequisite for claims
filed by firefighters hired after the statute’s effective date, evince an intent for the
statute to apply retroactively. To the contrary, this provision evinces the precise
opposite. By applying this provision only to those hired after the effective date, the
legislature recognized that it would be inequitable to impose the same prerequisite
on those currently employed firefighters whose PTSD manifested after June 2018.
In other words, the legislature made the prerequisite applicable to only post-
amendment hires precisely because it was altering the substantive rights of
firefighters. As an alteration of substantive rights, the 2018 amendments cannot
be remedial such that they would apply retroactively.
Alternatively, DeYoung asserts that it is the date of the filing of the claim for
benefits, not the date of manifestation of the condition, that determines which
version of the law controls. DeYoung attempts to distinguish a long line of cases
holding otherwise by arguing that the date of manifestation rule applies only to the
rate of compensation due to the employee, not whether the claim is allowable at
all. Id. at 3-8.
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No. 84561-6-I/9
Our Supreme Court has long ago stated otherwise: “It has been firmly
established in this state, by a consistent series of decisions of this court, that the
rights of claimants under the [Act][2] are controlled by the law in force at the time of
the person’s injury, rather than by a law which becomes effective subsequently.” 3
Ashenbrenner v. Dep't of Labor & Indus., 62 Wn.2d 22, 25, 380 P.2d 730 (1963).
And most devastatingly to DeYoung’s claim is that the fact that, for occupational
diseases such as PTSD, the “time of the person’s injury” is considered to be the
date at which the disease manifests. Dep’t of Labor & Indus. v. Landon, 117 Wn.2d
122, 125-26, 814 P.2d 626 (1991).
Otherwise, DeYoung identifies no case where the law applied to a claim
under the Act was the law in effect at the time that the claim was made, rather than
when it accrued, and we presume none exists. State v. Loos, 14 Wn. App. 2d 748,
758, 473 P.3d 1229 (2020) (holding where a party fails to provide citation to support
a legal argument, we assume counsel, like the court, has found none) (citing State
v. Arredondo, 188 Wn.2d 244, 262, 394 P.3d 348 (2017)).
2 The Workmen’s Compensation Act was re-codified as the Act in 1961. LAWS OF
1961, ch. 23.
3 For this proposition, the Ashenbrenner court relied upon multiple cases holding
that, for worker’s compensation claims, the law in place at the time of injury is
controlling. Not all of the cited cases concern the rate of compensation, contrary
to DeYoung’s claim otherwise. For example, Sheldon v. Department of Labor &
Industries, 168 Wn. 571, 12 P.2d 751 (1932), concerned an amendment to the
statute concerning what qualified as an “extra-hazardous” job. In another example,
Bodine v. Department of Labor & Industries, 29 Wn.2d 879, 190 P.2d 89 (1948),
concerned an amendment to the Worker’s Compensation Act that granted the
employee the right to recover attorney fees. Thus, despite DeYoung’s assertion
to the contrary, the history of the “manifestation rule” does not demonstrate that
our Supreme Court intended the rule to apply only to the rate of compensation.
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No. 84561-6-I/10
III. CONCLUSION
We agree with the BIIA’s interpretation that the amendments to RCW
51.08.142 and 51.32.185 only apply prospectively. As such, the BIIA and the trial
court did not err by denying DeYoung’s request for occupational disease benefits
and we affirm.
WE CONCUR:
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