Stephen Bradley, V. City Of Olympia & Washington Dept. Of L&i ( 2021 )

Filed
Washington State
Court of Appeals
Division Two
November 9, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STEPHEN T. BRADLEY, No. 54981-6-II
Respondent,
v. PUBLISHED OPINION
CITY OF OLYMPIA and DEPARTMENT OF
LABOR AND INDUSTRIES,
Appellants.
MAXA, J. – The City of Olympia appeals a superior court order granting summary
judgment for Stephen Bradley, a former firefighter in the City’s fire department, on a workers’
compensation claim that he filed with the Department of Labor and Industries (DLI). Bradley
claimed that firefighting activities caused his bladder cancer.
RCW 51.32.180 states that any worker who suffers disability from an occupational
disease in the course of employment is entitled to certain workers’ compensation benefits.
Under RCW 51.08.140, an “occupational disease” is a disease that “arises naturally and
proximately out of employment.”
In addition, RCW 51.32.185(1)(a)(iii)1 establishes a presumption for firefighters that
cancer is an occupational disease. RCW 51.32.185(3)(b) expressly applies that presumption to
bladder cancer. This presumption is rebuttable. RCW 51.32.185(1)(d). In Spivey v. City of
1
RCW 51.32.185 has been amended twice since Bradley filed his workers’ compensation claim,
and the amendments have changed the numbering of the relevant subsections. Because the
amendments are not material to this case, we cite to the current version of the statute.
No. 54981-6-II
Bellevue, the Supreme Court stated that to rebut the RCW 51.32.185(1) presumption, the
firefighter’s employer must “provide evidence from which a reasonable trier of fact could
conclude that the firefighter’s disease was, more probably than not, caused by nonoccupational
factors.” 187 Wn.2d 716, 735, 389 P.3d 504 (2017).
DLI denied Bradley’s workers’ compensation claim, and Bradley filed a petition for
review with the Board of Industrial Insurance Appeals (Board). To rebut the RCW
51.32.185(1)(a) presumption, the City presented medical evidence that firefighting activities in
general do not cause bladder cancer. The Board affirmed DLI’s denial, finding that the City had
rebutted the statutory presumption. On appeal, the superior court granted summary judgment in
favor of Bradley on the grounds that the City’s medical evidence could not rebut the RCW
51.32.185(1)(a) presumption.
We hold that an employer cannot rebut the presumption under RCW 51.32.185(1)(a) with
evidence that firefighting activities in general do not cause bladder cancer. Instead, to avoid
summary judgment an employer must present sufficient evidence that the individual claimant’s
bladder cancer was caused by nonoccupational factors. Here, summary judgment was
appropriate because the City failed to present evidence that created a genuine issue of material
fact as to whether nonoccupational factors caused Bradley’s bladder cancer.
Accordingly, we affirm the superior court’s order granting summary judgment in favor of
Bradley and remand to DLI to approve Bradley’s workers’ compensation claim.
FACTS
Background
Bradley was born in August 1949. He worked as a firefighter for the City from 1997
until 2014. As a firefighter, Bradley was exposed to diesel exhaust during various firefighting
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activities. He also was exposed to mild to moderate smoke, fumes, and toxins as well as the
exhaust from the fire equipment and emergency vehicles while responding to fire suppression-
related calls. After fire-suppression activities, Bradley would have soot on his wrists and around
his neck. He also would expel a black substance when coughing or blowing his nose.
Bradley never had any lung problems while working as a firefighter. None of his annual
physicals with the City’s fire department showed any signs of cancer. Bradley’s father had colon
cancer that doctors suspected was caused by exposure to Agent Orange when he served in the
Vietnam War. Other than his father, there was no history of cancer in Bradley’s family.
In September 2016 when he was 67 years old, Bradley was diagnosed with bladder
cancer. After his diagnosis, Bradley filed a workers’ compensation claim under RCW
51.32.185(1) with DLI, alleging that his firefighting activities caused his bladder cancer. DLI
denied his claim.
Petition for Review to Board
Bradley filed a petition for review of DLI’s decision with the Board. In April 2018, an
industrial appeals judge (IAJ) held an evidentiary hearing. Bradley generally testified to the
facts stated above. He also admitted that he consistently was exposed to secondhand smoke for
the first 19 years of his life because both of his parents smoked. In addition, Bradley and his
coworker testified about their duties as firefighters.
Bradley also relied on deposition transcripts from his medical expert witness Dr. Kenneth
Coleman, an emergency medicine and family medicine physician and attorney. He generally
testified that medical studies showed that there was a causal link between firefighting and
bladder cancer and agreed with statements from medical studies that were read to him. But he
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No. 54981-6-II
also agreed that an epidemiological study that established an association or correlation did not
necessarily establish causation.
Dr. Coleman generally stated that exposure to secondhand smoke can be a cause of
bladder cancer. But he was not asked whether Bradley’s exposure to secondhand smoke could
have been the cause of his bladder cancer.
The City presented deposition transcripts to the IAJ from three medical expert witnesses:
Dr. Bill Vanasupa, a Board certified urologist and Bradley’s treating physician; Dr. Noel Weiss,
an epidemiologist and epidemiology professor at the University of Washington; and Dr. Erik
Torgerson, a Board certified urologist and medical director of urology at the Swedish Urology
Group.
Dr. Vanasupa began treating Bradley’s bladder cancer in September 2016. He generally
stated that based on the articles he reviewed, he believed that there was an increase in bladder
cancer mortality among firefighters, but that the increase was not statistically significant. Dr.
Vanasupa stated that it was possible that firefighting caused Bradley’s bladder cancer, but there
was less than a 50 percent probability of a causal connection. But he admitted that he did not
know what carcinogens firefighters in general or Bradley specifically were exposed to during fire
suppression activities.
Dr. Vanasupa stated that a history of smoking could cause bladder cancer and that certain
genetic predispositions could make bladder cancer more likely in a person. But he
acknowledged that Bradley was not a smoker and that there was no history of bladder cancer in
his family. Dr. Vanasupa also mentioned radiation exposure as a potential causation for bladder
cancer, but he did not suggest that Bradley had been exposed to radiation.
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Dr. Weiss testified that based on his review of studies involving firefighters and bladder
cancer, his opinion was that it was unreasonable to make the inference that exposure to
firefighting activities caused bladder cancer. He testified that there were inconsistent
conclusions among the 30 studies regarding this hypothesis, and that there was a weak
association between firefighting activities and bladder cancer. His opinion was that firefighting
does not have the capacity to cause bladder cancer, but he could not rule out that possibility.
Dr. Weiss acknowledged that Bradley’s medical records showed that he was a nonsmoker
with no family history of bladder cancer. He admitted that he did not know how many times
Bradley was exposed to various carcinogens while on the job.
Dr. Torgerson testified that he believed that firefighting was not an occupation that had
an association with bladder cancer. He admitted that he had no knowledge about the extent to
which Bradley was exposed to carcinogens as a firefighter or what Bradley’s duties were as a
firefighter. Dr. Torgerson testified that Bradley was a nonsmoker who had no family history of
kidney or bladder cancer, or any genitourinary cancer.
The IAJ entered a proposed decision and order affirming DLI’s order. The IAJ
determined that the statutory presumption under RCW 51.32.185(1) applied, but that the City’s
expert medical evidence had rebutted the presumption by a preponderance of the evidence.
However, the IAJ noted that none of the medical experts could state with certainty as to what
caused Bradley’s bladder cancer. And the IAJ found that the evidence regarding Bradley’s
history of exposure to secondhand smoke from other employment and non-employment activities
was insufficient to rebut the presumption. Nevertheless, the IAJ concluded that the
preponderance of the evidence did not establish that Bradley’s distinctive employment
conditions caused his cancer rather than conditions of everyday life or employments in general.
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The Board adopted the IAJ’s decision and order and denied Bradley’s petition for review.
Superior Court
Bradley appealed the Board’s decision to the superior court. He filed a summary
judgment motion on the grounds that the City had failed to prove by a preponderance of the
evidence that his bladder cancer was, more probably than not, caused by nonoccupational
factors. After Bradley filed his summary judgment motion, DLI conceded that Bradley’s
workers’ compensation claim should be allowed.
The superior court granted Bradley’s summary judgment motion after reviewing the
entire certified appeal board record. The court awarded Bradley reasonable attorney fees and
remanded to DLI to allow Bradley’s claim.
The City appeals the superior court’s summary judgment order.
ANALYSIS
A. OCCUPATIONAL DISEASE PRESUMPTION FOR FIREFIGHTERS
The Industrial Insurance Act (IIA), Title 51 RCW, governs workers’ compensation
claims. RCW 51.32.180 states that any worker who contracts an occupational disease in the
course of employment is entitled to certain workers’ compensation benefits. An “occupational
disease” is a disease that “arises naturally and proximately out of employment.” RCW
51.08.140. In general, the worker bears the burden of proving an occupational disease when
asserting a workers’ compensation claim. Spivey, 187 Wn.2d at 726.
However, RCW 51.32.185(1)(a)(iii) and (3)(b) establish a presumption that bladder
cancer is an occupational disease for firefighters. This presumption can be rebutted by the
preponderance of the evidence. RCW 51.32.185(1)(d). “Such evidence may include, but is not
limited to, use of tobacco products, physical fitness and weight, lifestyle, hereditary factors, and
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exposure from other employment or nonemployment activities.” RCW 51.32.185(1)(d).
Whether an employer has rebutted the RCW 51.32.185(1) presumption generally is a question of
fact. Spivey, 187 Wn.2d at 727-28.
In Spivey, the Supreme Court determined that the Morgan theory of presumptions applies
to RCW 51.32.185(1). Id. at 731-35. Under the Morgan theory, “[t]he presumption does not
vanish on the production of contrary evidence; it shifts both the burden of production and
persuasion to the employer” to show that firefighting activities are not the cause of the
firefighter’s disease. Id. at 731. In other words, the employer has the “burden both to produce
contrary evidence and to persuade the finder of fact” that firefighting did not cause the disease.
Id. at 735.
The court stated that rebutting the statutory presumption under RCW 51.32.185(1) does
not require the employer to prove the specific cause of the firefighter’s disease. Id. Instead, the
employer is required to produce evidence “from which a reasonable trier of fact could conclude
that the firefighter’s disease was, more probably than not, caused by nonoccupational factors.”
Id. (emphasis added).
B. STANDARD OF REVIEW
On appeal from the superior court for an industrial insurance claim, we review the
superior court’s decision, not the Board’s order. Leitner v. City of Tacoma, 15 Wn. App. 2d 1,
11, 476 P.3d 618 (2020), review denied, 196 Wn.2d 1045 (2021); see also RCW 51.52.140.
We review a superior court’s order on summary judgment de novo. Weaver v. City of
Everett, 194 Wn.2d 464, 472, 450 P.3d 177 (2019). All facts and reasonable inferences are
construed in the light most favorable to the nonmoving party. Id. Summary judgment is
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appropriate when there is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. CR 56(c); Weaver, 194 Wn.2d at 472.
In addition, this case involves statutory interpretation, which is a question of law that we
review de novo. Spivey, 187 Wn.2d at 726. Our primary goal in interpreting a statute is to
determine and give effect to the legislature’s intent. Wright v. Lyft, Inc., 189 Wn.2d 718, 722,
406 P.3d 1149 (2017). We discern this intent through the language of the statutory provision, the
context of the statute, and related statutes. Jametsky v. Olsen, 179 Wn.2d 756, 762, 317 P.3d
1003 (2014).
RCW 51.12.010 states that the IIA “shall be liberally construed for the purpose of
reducing to a minimum the suffering and economic loss arising from injuries and/or death
occurring in the course of employment.” “The IIA is remedial in nature, and thus we must
construe it ‘liberally . . . in order to achieve its purpose of providing compensation to all covered
employees injured in their employment, with doubts resolved in favor of the worker.’ ” Spivey,
187 Wn.2d at 726 (alteration in original) (quoting Dennis v. Dep’t of Labor & Indus., 109 Wn.2d
467, 470, 745 P.2d 1295 (1987)). Specific to this case, the court in Spivey stated, “RCW
51.32.185 reflects a strong social policy, and thus we must accord it the strength intended by our
legislature.” 187 Wn.2d at 731.
C. REBUTTING THE RCW 51.32.185(1)(a) PRESUMPTION
The City argues that the statutory presumption under RCW 51.32.185(1)(a) can be
rebutted solely with medical evidence that firefighting activities in general do not cause bladder
cancer. The City claims that presentation of such evidence necessarily shows that Bradley’s
bladder cancer must have been caused by nonoccupational factors, thereby satisfying the Spivey
requirement. We disagree.
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1. Evidence Challenging the Validity of the Presumption
The City presented medical evidence that firefighting in general does not cause bladder
cancer. The City argues that this evidence is sufficient to create a question of fact as to whether
Bradley’s bladder cancer was caused by nonoccupational hazards, which Spivey stated was
required to rebut the RCW 51.32.185(1) presumption. The City claims that if firefighting in
general does not cause bladder cancer, Bradley’s cancer must have been caused by
nonoccupational hazards rather than by his firefighting activities.
We reject this argument. By adopting the presumption that a firefighter’s bladder cancer
is an occupational disease, the legislature already has determined that there is at least some
causal connection between firefighting activities and bladder cancer. In other words, RCW
51.32.185(1)(a) is designed to foreclose the argument that firefighting activities cannot cause
bladder cancer.
The City’s argument essentially is that the legislature was wrong when it enacted RCW
51.32.185(1)(a). An employer who presents evidence that firefighting activities actually do not
cause bladder cancer is not rebutting the presumption; it is attacking the validity of the
presumption itself. The City is arguing that the presumption should not exist because the
evidence does not support it. But RCW 51.32.185(1)(a) is the law. Adopting the presumption
was within the legislature’s prerogative. It would make no sense to allow an employer to defeat
a firefighter’s workers’ compensation claim by disagreeing that the presumption is legitimate.
Spivey supports the conclusion that an employer cannot rebut the RCW 51.32.185(1)(a)
presumption with evidence that firefighting actually does not cause the disease subject to the
presumption. The court in Spivey indicated that the RCW 51.32.185(1) presumption was
adopted because firefighters may have difficulty producing evidence that firefighting actually
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caused their disease. 187 Wn.2d at 734-35. In addressing the legislature’s addition of melanoma
to the list of cancers to which RCW 51.32.185(1) applies, the court stated,
[The legislature] added melanoma despite testimony that there was not enough
scientific evidence to support adding additional diseases to the statute. See H.B.
REP. ON H.B. 2663, at 3, 57th Leg., Reg. Sess. (Wash. 2002) (“[t]he bill is too broad
because it covers conditions for which no correlation to fire fighting exposure is
known”). Thus, the apparent purpose of adding melanoma to the list of covered
diseases was to compensate firefighters even in circumstances when there may not
be strong medical or scientific evidence establishing a definitive causal
relationship between firefighting and the disease.
Id. (emphasis added).
The court concluded, “RCW 51.32.185 reflects the legislature’s intent to relieve a
firefighter of unique problems of proving that firefighting caused his or her disease.” Id. at 741-
42.
This court’s decision in Gorre v. City of Tacoma, 180 Wn. App. 729, 758, 324 P.3d 716(2014), reversed on other grounds, 184 Wn.2d 30 (2015), also is consistent with the conclusion
that an employer cannot rebut the RCW 51.32.185(1)(a) presumption with evidence that
firefighting actually does not cause the disease at issue. The court stated that a firefighter retains
the benefit of the RCW 51.32.185(1) presumption “even if there is no known association
between the disease and firefighting.” Id. This statement necessarily means that an employer
cannot rebut the presumption with evidence that there is no association between firefighting and
the disease at issue.2
In addition, we must liberally construe RCW 51.32.185(1)(a) in a manner that is
favorable to the worker. RCW 51.12.010; Spivey, 187 Wn.2d at 726. And we must give effect
2
The parties debate whether this statement is dicta. But regardless of whether it is dicta, the
statement is consistent with Spivey.
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to the strong social policy reflected in RCW 51.32.185(1). Spivey, 187 Wn.2d at 731. Rejecting
the City’s argument is consistent with this strong social policy.
Similarly, even if the City’s position was reasonable, we must interpret RCW
51.32.185(1) in a manner that best advances the statute’s legislative purpose. Wright, 189 Wn.2d
at 729. The clear purpose of RCW 51.32.185(1) is to extend workers’ compensation benefits to
firefighters who develop certain specified diseases even if a connection between the disease and
firefighting cannot be shown, unless the employer can prove that nonoccupational factors caused
the firefighter’s disease. See Spivey, 187 Wn.2d at 733-34, 741-42.
The City refers to RCW 51.32.185(1)(d), arguing that the second sentence of that
provision does not limit the type of evidence that can rebut the RCW 51.32.185(1) presumption.
But the examples of rebutting evidence provided in RCW 51.32.185(1)(d) share the common
characteristic that they are all nonoccupational risk factors specific to an individual claimant.
Nothing in RCW 51.32.185(1)(d) suggests that an employer can rebut the presumption by
showing that there actually is no connection between firefighting and bladder cancer.
The City also argues that the governor’s veto of a section providing a statement of intent
of a 2002 bill amending RCW 51.32.185(1) supports its position. One of the vetoed provisions
stated, “Fire fighters are exposed to polycyclic aromatic hydrocarbons as products of combustion
and these chemicals have been associated with bladder cancer. The epidemiologic data suggests
fire fighters have a three-fold risk of bladder cancer compared to the population as a whole.”
LAWS OF 2002, ch. 337, § 1(d), at 1717-18. The explanation of the partial veto stated that the
governor strongly supported the statutory presumption, but stated that “[t]he assumptions in
section 1 of this bill have not been clearly validated by science and medicine.” LAWS OF 2002,
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ch. 337, veto statement at 1719. The City argues that this veto rejects the ideas that RCW
51.32.185(1) creates a legal conclusion that firefighting causes bladder cancer.3
However, this veto does not support the City’s position. The significance of the veto is
that the presumption for bladder cancer remained the law – strongly supported by the governor –
even without a statutory finding that firefighters have a greater risk of bladder cancer. The veto
explanation is consistent with the statement in Spivey that RCW 51.32.185(1) was designed to
“compensate firefighters even in circumstances when there may not be strong medical or
scientific evidence establishing a definitive causal relationship between firefighting and the
disease.” 187 Wn.2d at 735.
Accordingly, we hold that the City’s evidence showing that firefighting in general does
not cause bladder cancer is insufficient to create a question of fact as to whether the RCW
51.32.185(1) presumption was rebutted in this case.
2. Evidence Needed to Rebut Presumption
The next question is whether the City presented any other evidence that would rebut the
RCW 51.32.185(1) presumption. In Spivey, the court stated that to rebut the RCW 51.32.185(1)
presumption, a firefighter’s employer must “provide evidence from which a reasonable trier of
fact could conclude that the firefighter’s disease was, more probably than not, caused by
nonoccupational factors.” 187 Wn.2d at 735.
As we discuss above, an employer cannot satisfy this burden by attempting to prove that
firefighting in general does not cause bladder cancer. Instead, the employer must focus on
3
The City also refers to a veto of a section providing a statement of intent of a 2007 bill
amending RCW 51.32.185(1). See LAWS OF 2007, ch. 490, at 2253. The explanation of veto
stated a concern that the statement of intent contained “broad generalizations about the incidence
of cardiovascular disease.” LAWS OF 2007, ch. 490, veto statement at 2256.
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evidence showing what caused the individual claimant’s cancer. RCW 51.32.185(1)(d) provides
a nonexclusive list of relevant factors: “use of tobacco products, physical fitness and weight,
lifestyle, hereditary factors, and exposure from other employment or nonemployment activities.”
An employer can avoid summary judgment only if it presents evidence that creates a genuine
issue of material fact the individual claimant’s bladder cancer was caused by these or other
nonoccupational factors.
An example of the type of evidence needed to rebut the RCW 51.32.185(1) presumption
is found in City of Bellevue v. Raum, 171 Wn. App. 124, 286 P.3d 695 (2012). In that case, the
employer presented evidence from four doctors that the firefighter claimant’s cardiovascular
disease was caused by a variety of non-employment-related factors, including high cholesterol,
high blood pressure, and family history. Id. at 154. The court held that this evidence was
sufficient for a jury to find that the employer had rebutted the presumption. Id. at 155.
The parties discuss whether in addition to showing that a firefighter’s disease was caused
by nonoccupational factors, an employer also must prove that firefighting was not a contributing
cause. But Spivey is consistent with the conclusion that an employer can meet the burden of
production and therefore avoid summary judgment by presenting evidence that the firefighter’s
disease was caused by nonoccupational factors. 187 Wn.2d at 735. We need not address
whether an employer must disprove any connection between firefighting and a claimant’s disease
in order to meet the burden of persuasion at trial.
Here, the City did not even attempt to present any evidence that specifically related to the
cause of Bradley’s bladder cancer. The City’s witnesses admitted that Bradley was not a smoker
and had no family history of bladder cancer. There was evidence in the record that Bradley was
exposed to second hand smoke while he was growing up, but none of the witnesses testified that
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this exposure was a cause of his cancer. And the City’s witnesses did not identify any other
potential nonoccupational exposures that may have caused Bradley’s bladder cancer.
The Supreme Court in Spivey declined to address “whether it would ever be permissible
for a judge to decide the issue [of whether the firefighter presumption has been rebutted] as a
matter of law.” 187 Wn.2d at 729. But in the summary judgment context, there is no question
that a superior court can rule as a matter of law when the nonmoving party does not provide
sufficient evidence to create a genuine issue of material fact. CR 56(c); Weaver, 194 Wn.2d at
472.
We conclude that the City’s evidence was insufficient to create a genuine issue of
material fact that nonoccupational factors caused Bradley’s bladder cancer. Accordingly, we
hold that the superior court did not err in granting summary judgment in favor of Bradley.
D. SUBSTANTIVE DUE PROCESS
The City argues for the first time in its reply brief that if the evidence shows that
firefighting activities do not cause bladder cancer, the RCW 51.32.185(1)(a) presumption
regarding bladder cancer is arbitrary and violates substantive due process. However, the City did
not include a substantive due process challenge to RCW 51.32.185(1)(a) in its assignments of
error and did not reference this claim in its opening brief. We generally do not address claims
asserted for the first time in the reply brief. Samra v. Singh, 15 Wn. App. 2d 823, 834 n.30, 479
P.3d 713 (2020). Therefore, we decline to consider the City’s substantive due process argument.
E. ATTORNEY FEES ON APPEAL
Bradley argues that he is entitled to attorney fees on appeal under RCW 51.52.130 and
RCW 51.32.185(9)(b). We agree.
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RCW 51.52.130(2) provides that “[i]n an appeal to the superior or appellate court
involving the presumption established under RCW 51.32.185, the attorney’s fee shall be payable
as set forth under RCW 51.32.185.” RCW 51.32.185(9)(b) provides that attorney fees are
permitted in an appeal to any court involving the presumption under RCW 51.32.185(1) and
when “the final decision allows the claim for benefits.”
Here, we affirm the superior court’s order granting summary judgment in favor of
Bradley and remand to DLI to approve his workers’ compensation claim. Accordingly, we grant
Bradley’s request for attorney fees under RCW 51.52.130 and RCW 51.32.185(9)(b).
CONCLUSION
We affirm the trial court’s order granting summary judgment in favor of Bradley and
remand to DLI to approve Bradley’s workers’ compensation claim.
MAXA, J.
We concur:
LEE, C.J.
VELJACIC, J.
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