Edward O. Gorre, App/cr Respondent V City Of Tacoma, Et Al, Res/cr Appellant (Majority and Order)
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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 DIVISION II , rE Y 1: t4 `"°,, OERUTY No. 43621 -3 -II \ \ \ EDWARD O. GORRE, Appellant and Cross Respondent, v. ORDER AMENDING ORDER GRANTING CITY OF TACOMA, 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in Part and Amending Opinion, filed today, July 8, 2014, to correct a date and to substitute " published" for " unpublished" so that these sentences now read as follows: Respondent Department motion grant for the of Labor & Industries ( Department) has filed a reconsideration of our published opinion Department' s motion for filed reconsideration, on in April 23, 2014. part, following changes to our published opinion filed April 23, 2014 ¢ IT IS SO ORDERED. DATED this / y' / ay of For the Court: Hunt, P. J., Worswick, J., Penoyar, J. P. T. 1 We by making the ON 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 NQsp, 43621 -3 -L EDWARD O. GORRE, 1 V. Y Appellant and Cross Respondent, v. ORDER GRANTING RECONSIDERATION CITY OF TACOMA, IN PART AND AMENDING OPINION Respondent and Cross Appellant, DEPARTMENT OF LABOR AND INDUSTRIES, Respondent. Respondent Department of of our published reconsideration Industries ( Department) has filed a motion for Labor & 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 We grant the Department' s motion for reconsideration, in part, by making the following changes to our unpublished opinion filed April 23, 2014: On 1) page 3, we modify the first sentence of footnote 3, which reads, " In so doing, we note that the following existing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' We s Valley Fever add the evidence "; and we is an occupational phrase " before delete the us word " on disease appeal" under RCW 51. 32. 185," as follows: after " we note that the following existing 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 . 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 contrary, 1985); Pappas 2006); Hahn See also v. Emp' t Sec. Dept., 135 Wn. App. 852, 857, 146 P. 3d 1208 Dep' t of Ret. Sys., 137 Wn. App. 933, 942, 155 P.3d 177 ( 2007). v. 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 No. 43621 -3 EDWARD O. GORRE, of IT`( Appellant and Cross Respondent, v. PUBLISHED OPINION CITY OF TACOMA, 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. diagnoses 51..32.185' of " s 1851_ Gorre Fever" Valley argues and that we should reverse eosinophilic lung presumption of occupational evidentiary disease, because ( 1) he had separate which qualified for RCW 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 6 2007, adding attorney fees, respectively. sections was and 7, in effect. which Shortly thereafter, the statute was amended in July discuss the definition. RCW 51. 32. 185( 6) and ( 7). firefighting activities" and Because these 2007 statutory of " 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 properly requiring the City of Tacoma to rebut this presumption); and ( 3) the evidence failed to 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, superior which would preclude court' s consideration application of. of presumption; ( the statutory evidentiary Gorre' s evidence outside the Board' s 2) the and ( 3) the record; 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 apply RCW 51. 32. 185' s evidentiary presumption of occupational disease to Gorre' s claim, ( 1) 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 presumption of occupational disease 3 by a preponderance of the evidence. FACTS I. BACKGROUND AND MEDICAL HISTORY Edward Omar Gorre graduating from high grew he school, up and attended lived for 18 California years colleges. in Fair Oaks, California. After Gorre served in the United States Army in Operation Desert Storm from 1988 to 1990, when he returned to California and lived in four Sacramento for - 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, r suppression, search and - escue, and " overhaul," sure the fire does smoke, diesel, not start up again. lockouts ( from fires. cars and His duties also included fire which involves looking for seeds of fire tomake Administrative Record ( AR) chemicals, and mold when material spills), and wild responding to fire houses), at calls, " 1055. He was exposed to Hazmat "4 calls ( hazardous 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. H1N1 flu Such exposures frequently placed him in close contact with patients with fever, 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. Similarly, Gorre did not wear a " self-contained breathing apparatus" ( SCBA) overhauls6; 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 infiltrates7 and granulomous pulmonary specialist, lesions$. Dr. Sandstrom referred Gorre to Dr. Christopher Goss, a 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 is a descriptive term used by radiologists to describe an abnormal density (such as pus or fluid) or infection yin the lungs. A " pulmonary infiltrate" 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 Its biopsy showed that Gorre had coccidioidomycosis, also known as " Valley his forehead. 9 Dr. Paul Bollyky, from the University of Washington Infectious Diseases Clinic, also Fever. " 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 inhalation of 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 King County Public Health health advisory report http: / www.kingcounty. gov/ healthservices /health/ communicable /providers. aspx). / Washington soil. See April 4, 2014, Seattle & 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 In February 2008, the Department also claim. denied Gorre' s lung disease claim, saying it was not an occupational disease under RCW Gorre 51.08. 140. requested pneumonia/ hypersensitive occupational diseases reconsideration, pneumonitis, under asserting that he had eosinophilic which were lung diseases considered presumptive 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 firefighters. 13 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 respiratory disease, heart problems, cancer, and infectious diseases. RCW 51. 32. 185( 1). If a 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 15 the presumption " Report because " Proceedings of , Valley [ F] ever is not enumerated ( ARP) ( Mar. 8, 2010) at 88834. in the statute. " 16 Administrative 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 15 of Gorre' s eosinophilic Administrative Report lung of Proceedings disease.'$ Gorre first reported symptoms of fevers, ( 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 Dr. Johnson opined that Valley Fever is transmitted Fever. 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 pneumonia with eosinophilia to was the other way the cocci had caused the around 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; ( feathers and 3) inspecting chicken processing plants, where he was exposed to chicken 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 Rivers had worked for the City as Gorre' s Emergency Medical Technician partner. He 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 fires. . mold problems. Firefighters were also exposed to inhaling diesel exhaust and house 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 with numerous calls residences that Gorre Gorre. and Simmons described the sick patients and poor conditions of 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 letters from Dr. Ayars issues. and In September 2009 .he reviewed Gorre' s medical reports 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 March 8, 2007. At the time, Gorre had and bilateral finger numbness. night sweats, periodic bouts of fever, Coxsackievirus22, 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 Gorre evaluated on smoker April 18, 2002. At that time, Gorre said he had been a non - 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 as of Gorre' s follows: ( claim. Specifically, the IAJ made the following findings of fact, summarized 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 conclusions of firefighter for the law, summarized City. Based on these findings, the IAJ issued the following 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 him ( Gorre) to under RCW 51. 32. 185; ( show an occupational 2) the IAJ' s ruling that the burden of proof was on 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 develop not 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 December 2005, proximately an and ( caused findings, the Board by infectious disease, ( 3) 4) his made Gorre became symptomatic of Valley Fever in Gorre did not contract any respiratory condition naturally and occupation as a the following firefighter for the conclusions of 18 law, City of Tacoma. summarized as Based on these follows: ( 1) during 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 City filed a cross motion establish a compensable claim under for summary judgment, arguing that ( 1) RCW 51. 32.185; ( Gorre failed to 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. The hard to not support have were superior court factually" separate seeing orally 25 diseases think smoking was of eosinophilia and that he was an the Board' s decision, 24 ruling that ( 1) it was " a little that Gorre had contracted Valley Fever in Washington; (2) Gorre did were symptoms of h] is testimony affirmed interstitial lung the cocci that he did have "; smoked a issue here little bit at all." as a kid disease because " what people and ( 3) Gorre was not a smoker - and had Verbatim Transcript of an occasional cigar. I don' t 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 In particular he challenges the superior court' s and the Board' s occupational disease failures ( 1) to recognize three conditions; ( separate statutorily presumptive occupational respiratory 2) to exclude prejudicial, confusing, and misleading evidence; and ( 3) to award him attorney fees court' s claim. and costs, including failure ( 1) to find that Gorre expert witness fees. was a smoker, ( The City cross -appeals the superior 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 that the argues 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, ( and ( 3) failing 2) failing to strike the evidence Gorre presented at the superior court level, 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 he diseases, One has clarified: 27 More specifically, Gorre asserts that had separate 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)). of Labor & Indus., 138 Wn.2d 1, 5, 977 P. 2d 570 ( On appeal of the superior court' s 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. App. at 180 ( emphasis added) ( quoting 23 Watson v. Dep' t of Labor & Indus., 133. 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), Avundes, 95 Wn. App. review denied, 176 Wn.2d 1024 ( 2013); 265, 269 -70, 976 P.2d 637 ( 1999), Dep' t of Labor & Indus. v. 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 rationale, court as omitted). The Industrial Insurance Act itself encapsulates this providing that "[ a]ppeal shall lie from the judgment of the superior We do not other civil cases." RCW 51. 52. 140 ( emphasis added). ¢... in 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 for the qualifies 51. 32. 185; ( statutory presumption of an " occupational disease" under RCW 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 b), the and ( c) [( case of 2009)] firefighters as defined in [ former] RCW 41. 26. 030( 4) ( who are covered under Title 51 RCW ... , a), 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 evidentiary " presumption" that specified firefighter diseases are " occupational" diseases for 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 facie prima diseases[ 32] presumption are that: ( occupational a) Respiratory diseases disease[ 31]; ... RCW under and ( d ) infectious 51. 08. 140[ 3]. This presumption of occupational disease may be rebutted by a preponderance of the evidence. 34], Such evidence may include, but is not limited to, use of tobacco physical products[ 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 disease" case as " for any workers' compensation claim, RCW 51. 08. 140 defines "[ o] ccupational 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 once the firefighter shows that he has one of these types of diseases, triggering the 51. 32. 185( 1), statutory presumption that the disease is an " occupational disease," the burden shifts to the 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 death occurring in the course of employment. "' Indus., 109 Wn.2d 467, 474, 745 P. 2d 1295 ( 1987) ( quoting RCW injuries and/ or Dennis v. Dep' t of Labor & 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 firefighter employee maintains the benefit of the occupational 37 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 51. 180; RCW . 52. 115.. Again, this substantial evidence standard is highly deferential to the agency fact finder; and we do not weigh the evidence or substitute our Chandler v. judgment for the agency' Office of Ins. Comm' r, 141 Wn. App. s judgment about witness credibility. 639, 648, 173 P. 3d 27.5 ( 2007). See 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 additional separate disease. But we agree with Gorre' s second only Valley Fever, and not an that Valley Fever is both a point 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 eosinophilic condition 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 to develop and manifest as Fever. Valley Dr. Bardana, for example, ( 1) testified that 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, ... everybody except Dr. Goss not agrees with two diseases," adding, "[ that." I]t' s crystal clear, and I think 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" types of diseases, and " although it infectious diseases." provides examples The statute does not define either of these 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. 375 ( 2004). is When a statute is susceptible to more than one reasonable interpretation, however, it ambiguous Ecology v. State ex rel. Citizens Against Tolls v. Murphy, 151 Wn.2d 226, 242, 88 P. 3d and we use canons of statutory construction or legislative Campbell & Gwinn, LLC, 146 Wn.2d 1, 12, 43 P. 3d 4 ( 2002). history. Dept. of Here, we use these 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. If a term is susceptible to two or Pacheco, 125 Wn.2d 150, 154, 882 P.2d 183 ( 1994). 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 Dep' t in nature," we must construe in order to achieve its purpose of providing compensation to all covered it " liberally employees remedial injured in their of Labor & employment, with doubts resolved in favor of the Indus., 109 Wn.2d 467, 470, 745 P. 2d 1295 ( 1987). worker." Dennis v. 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 1987, to be occupationally 515, § 1. ch. presumed 31 related for firefighters. LAWS OF No. 43621 -3 -II a. Gorre' s Valley Fever is a respiratory disease under RCW 51. 32. 185. 51. 32. 185( 1)( RCW occupational diseases in this disease" S provides that " RCW 51. 08. 140. Webster' context. WEBSTER' respiration." defines " under a) s of or its harm, " 40 any at 648 ( definition lb). are presumptively dictionary defines " respiratory" as " of or relating to THIRD NEW INTERNATIONAL DICTIONARY . 1934 ( 2002). WEBSTER' S breathing "39 it defines " disease" as " a cause of or " an impairment of the normal state of the living animal or plant body components or diseases" But Washington law does not define " respiratory respiration" as " a single, complete act of discomfort respiratory that interrupts or modifies the part of the vital functions." WEBSTER' S 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), pulmonary symptoms Dr. Ayars testified that ( 1) such as coughs, fever, symptoms of Valley Fever are generally 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. 39 WEBSTER' S at 1934 (definition lb). 40 WEBSTER' S at 648 ( definition 2a). 32 Dr. Bardana testified that in 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 that Gorre was undisputed 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 definition Accordingly, symptoms. of "respiratory disease " an we hold that ( 1) Valley . Fever meets the dictionary 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 immunodeficiency acquired virus / meningococcal meningitis, 4) does not state specific immunodeficiency or mycobacterium that this list of infectious diseases that do qualify: " Human syndrome, tuberculosis." four diseases is strains all of hepatitis, The plain language of subsection 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 r No. 43621 -3 -11 The City and the Department argue that the legislature intended to limit .the scope of qualifying infectious diseases to the ones specifically listed in RCW 51. 32. 185( 4). Gorre 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 RCW 51. 32. 185( 1)( d). disease status for firefighters' " infectious diseases" in general. 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 perhaps meningitis, and not otherwise tuberculosis. readily recognized as occupational diseases: HIV, hepatitis, 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 intent to expand the scope of Furthermore, qualifying " infectious diseases," we construe statutes 347, 351, 771 P. 2d 330 ( 1989). to not to limit them. avoid absurd results. 44 State v. Neher, 112 Wn.2d 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 Such absurd construction would mean that a firefighter exposed to methicilin- enumerated: 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 an these four infectious disease, named we diseases. hold that Given all the experts who opined that Valley Fever is 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 evinces added). The legislature' s its intent to limit the types use of the of cancers limiting covered under corresponding limiting language in RCW 51. 32. 185( 4). 35 term " only" the in RCW 51. 32. 185( 3) statute. But there is no 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. III. REMEDY46 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 remedy the Board' s Gorre receives and the superior court' s failure to apply the the legislature' s clearly intended benefit of presumption. To ensure that 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 disease did not arise naturally and proximately from his 47 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 3) erred in failing to award its statutory costs. Br. of Resp' t/Cross- Appellant at 45. The City' s 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." of Resp' t/Cross Appellant at 39_ See Raum, 171 Wn. App. at 151. 37 Br. ofResp' t at 28; Br. 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 is a regular user of tobacco products, has smoked smoker" " tobacco products at least one hundred times in his [ or] her lifetime, and as of the date of manifestation does did smoke not support a smoker" " tobacco finding products at that Gorre is a least some current days." WAC 296 -14 -315. The record this definition. A "former smoker under 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 r 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 Gorre responds that the superior court did not err in admitting this evidence because firefighter. 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 it was new evidence; rather part of the Board 49 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 Simmons' testimony: Gorre' s superior court brief. The City mischaracterizes Gorre' s use of 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., App. 852, 857, 146 P. 3d 1208 ( 2006); Hahn v. Dep' t of Ret. Sys., 137 Wn. App. 933, 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. 40 135 Wn. 942, 155 No. 43621 -3 -II Simmons' testimony " disallowed was 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 court' s decision superior superior court' s occupational findings disease of under not fact to strike and the evidence conclusions RCW 51. 08. 140, ( of Gorre law ( 1) presented. But we reverse the that Gorre did not have an 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 conclusions order that the are correct. We also reverse the corresponding Board findings and 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
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