¶66 (concurring) I agree with much of what the majority holds. I agree that in an appeal of a *214Department of Labor and Industries (Department) decision denying benefits, the party appealing has the burden of production to establish a prima facie case for the relief sought, and that in the present case, this requires the claimant to make a viable case that the Department’s decision is incorrect. I agree that the appropriate standard of proof in the present case is a preponderance of the evidence. I also agree that the evidence here is insufficient to show that Bart Rowley Sr. committed a felony for purposes of applying the felony payment bar contained in RCW 51.32.020 (discussed infra). Accordingly, I agree that Rowley is entitled to benefits. In my view, however, the claimant seeking benefit payments, not the Department, bears the burden of proof to show the absence of a felony that would bar benefit payments under RCW 51.32.020.
Discussion
¶67 RCW 51.32.020 provides in part,
If injury or death results to a worker from the deliberate intention of the worker himself or herself to produce such injury or death, or while the worker is engaged in the attempt to commit, or the commission of, a felony, neither the worker nor the widow, widower, child, or dependent of the worker shall receive any payment under this title.
(Emphasis added.) Noting the “absentee of] any clear statutory directive” and instead relying on “principles of fairness,” the majority holds that “the legislature intended to burden the Department with proving that a felony bars payment under RCW 51.32.020.” Majority at 205. In my view, that approach is at odds with the general scheme of the Industrial Insurance Act (IIA), Title 51 RCW, as explained in our case law interpreting the IIA. We long ago held that “while the act should be liberally construed in favor of those who come within its terms, persons who claim rights thereunder should be held to strict proof of their right to receive the benefits provided by the act.” Olympia *215Brewing Co. v. Dep’t of Labor & Indus., 34 Wn.2d 498, 505, 208 P.2d 1181 (1949), overruled on other grounds by Windust v. Dep’t of Labor & Indus., 52 Wn.2d 33, 323 P.2d 241 (1958).
¶68 The majority reasons that “a worker should not be required to prove a negative—noncommission of a felony—in order to obtain benefits under the IIA.” Majority at 205. But we have previously interpreted the intentional injury portion of RCW 51.32.020 to place just such a burden on the claimant. In Mercer v. Department of Labor & Industries, we explained:
[I]n view of the statutory language [in RCW 51.32.020] precluding recovery if the workman’s death results from his own deliberate intention to take his life, we have allowed recovery only where [the claimant presents] competent medical evidence establish [ing] that the decedent acted under an incontrollable impulse or while in a delirium.
74 Wn.2d 96, 101, 442 P.2d 1000 (1968) (emphasis added) (citation omitted). In other words, in Mercer, applying RCW 51.32.020, we imposed the requirement that the claimant must prove a negative—that the deceased’s taking his own life was not the result of his deliberate intentional act. I see no reason why we should retreat from imposing the same requirement when applying another portion of the same statute in the present case. While the majority maintains that requiring the claimant here to “prove a negative” is unfair, majority at 205, we have already imposed that burden in the even more difficult context of a person who is deceased. See Mercer, 74 Wn.2d at 101.13 Indeed, placing the burden on the claimant here would promote uniformity and predictability in application of the IIA.
*216¶69 The majority contends that “[c]ommon sense dictates” that the burden be placed on the Department here. Majority at 205. But again, the approach that comports with our case law “dictates” that the burden here, which concerns the claimant’s establishing his right to benefits, should be borne by the claimant. See, e.g., Knight v. Dep’t of Labor & Indus., 181 Wn. App. 788, 795-96, 321 P.3d 1275 (in a claim for workers’ compensation benefits, the injured worker bears the burden of proving that he is entitled to benefits), review denied, 181 Wn.2d 1023 (2014); Robinson v. Dep’t of Labor & Indus., 181 Wn. App. 415, 426, 326 P.3d 744 (workers’ compensation claimant bears the burden of establishing eligibility for benefits), review denied, 181 Wn.2d 1017 (2014). Again, the general scheme of the IIA argues in favor of placing the burden here on the claimant rather than the department. For instance, RCW 51.52-.050(2)(a) provides:
Whenever the department has taken any action or made any decision relating to any phase of the administration of this title the worker, beneficiary, employer, or other person aggrieved thereby may request reconsideration of the department, or may appeal to the board. In an appeal before the board, the appellant shall have the burden of proceeding with the evidence to establish a prima facie case for the relief sought in such appeal.
(Emphasis added); see also Zoff v. Dep’t of Labor & Indus., 174 Wash. 585, 586, 25 P.2d 972 (1933) (“The decision of the department was prima facie correct, and the burden was upon the one attacking that decision to overcome the same by evidence.”); Hastings v. Dep’t of Labor & Indus., 24 Wn.2d 1, 5, 163 P.2d 142 (1945) (“The first rule is that the decision of the department is prima facie correct and the burden of proof is upon the party attacking the decision.”).
¶70 As noted, we have long held that the burden of establishing eligibility for workers’ compensation benefits lies with the claimant. See Kirk v. Dep’t of Labor & Indus., 192 Wash. 671, 674, 74 P.2d 227 (1937) (“ ‘Persons entitled to the benefits of the act should be favored by a liberal *217interpretation of its provisions, but for this very reason they should be held to strict proof of their title as beneficiaries.’ ” (quoting Harris v. Okla. Nat. Gas Co., 1923 OK 311, 91 Okla. 39, 42, 216 P. 116)); Guiles v. Dep’t of Labor & Indus., 13 Wn.2d 605, 610, 126 P.2d 195 (1942) (“We are mindful of the rule that the burden rests on claimant to prove every element of his claim by a preponderance of the evidence.”); Cyr v. Dep’t of Labor & Indus., 47 Wn.2d 92, 97, 286 P.2d 1038 (1955) (“ ‘persons who claim rights [under the IIA] should be held to strict proof of their right to receive the benefits provided by the act’ ” (quoting Olympia Brewing, 34 Wn.2d at 505)); Lightle v. Dep’t of Labor & Indus., 68 Wn.2d 507, 510, 413 P.2d 814 (1966) (“We have held that a liberal construction of the act does not dispose of the requirement that a claimant must prove his claim by competent evidence.”). As can be seen, in matters concerning eligibility for workers’ compensation benefits, absent a specific exception,14 the burden of proof has consistently been placed on the claimant asserting the right to such benefits. I would not alter application of that burden in the present case.
Fairhurst, J., concurs with Madsen, C.J.See also Gatterdam v. Dep’t of Labor & Indus., 185 Wash. 628, 635, 56 P.2d 693 (1936) (approving jury instructions (1) that placed burden on claimant to prove that deceased worker’s death by suicide was the result of insanity, which was caused by industrial injury, and (2) that directed that “unless the death of [worker] was the result of an uncontrollable impulse, in no way directed by the mind, then the plaintiff [claimant] cannot recover’’).
See RCW 51.52.050(2)(c), which provides:
In an appeal from an order of the department that alleges willful misrepresentation, the department or self-insured employer shall initially introduce all evidence in its case in chief. Any such person aggrieved by the decision and order of the board may thereafter appeal to the superior court, as prescribed in this chapter.
(Emphasis added.)