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--F-1-~E 

' ,/ ltl CLERKS OFFICE ' " 

IUPREME COURT, GT~lf WASHiNli9ft 

DATE 0 9 ZU17 

'-jr~r&Z 

This opinion was filed for record 

at g: ~ Nf\!': on-~ ~ 2JH] 

~WIN THE SUPREME COURT OF THE STATE OF WASHINGTON 

DELMIS SPIVEY, ) 

) 

Petitioner, ) 

v. ) 

) 

CITY OF BELLEVUE and DEPARTMENT ) 

OF LABOR AND INDUSTRIES, ) 

) 

Respondents. ) __________________________) 

) 

WILFRED A. LARSON, ) 

) 

Respondent, ) 

) 

v. ) 

) 

CITY OF BELLEVUE, ) 

) 

Petitioner, ) 

) 

and ) 

) 

DEPARTMENT OF LABOR AND ) 

INDUSTRIES, ) 

) 

Defendant. ) ____________________________) 

No. 91680-2 (consolidated with 

No. 92197-1) 

En Bane 

Filed FEB 0 9 2017 

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Spivey v. City of Bellevue/Larson v. City of Bellevue 

No. 91680-2 

OWENS, J.- These consolidated cases involve two city of Bellevue (City) 

firefighters who were diagnosed with malignant melanoma and filed claims for 

workers' compensation benefits. In both cases, the Board of Industrial Insurance 

Appeals (Board) denied the firefighters' claims. Both firefighters then appealed the 

Board's decision to King County Superior Court. 

Under the Industrial Insurance Act (IIA), Title 51 RCW, a worker injured in 

the course of employment who suffers from an "occupational disease" is entitled to 

workers' compensation benefits. While generally the burden of proof falls to the 

worker, there is a statutory presumption that malignant melanoma in firefighters is 

occupational. RCW 51.32.185(1) (the "firefighter presumption"). 

The parties disagree about various aspects of how-and whether-the 

presumption in RCW 51.32.185 should operate when a board decision is appealed to 

superior court. We note that RCW 51.32.185 reflects a strong social policy in favor 

of the worker and conclude that (1) whether the City rebutted the firefighter 

presumption is a factual determination that was properly given to the jury in 

Larson, but improperly decided as a matter of law in Spivey, (2) RCW 51.32.185 

shifts both the burden of production and burden of persuasion to the employer, 

(3) in Larson, jury instruction 9 was proper, and ( 4) Larson is entitled to attorney 

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Spivey v. City of Bellevue/Larson v. City of Bellevue 

No. 91680-2 

fees at the Board level. We thus affirm the Court of Appeals' decision in Larson 

and reverse the trial court's decision in Spivey. 

FACTS 

A. Larson 

Wilfred Larson was diagnosed with malignant melanoma (melanoma) in his 

lower back in 2009. He had worked as a firefighter and emergency medical 

technician for the City since 1979. He filed a claim with the Department of Labor 

and Industries (the Department), seeking coverage for his melanoma as an 

occupational disease. The Department allowed the claim, applying the presumption 

in RCW 51.32.185(1). 

1. Larson: Appeal to the Board 

The City appealed to the Board. At a hearing, Larson presented testimony 

from a family practice physician/medical legal consultant who opined that 

Larson's work as a firefighter was likely a cause of his melanoma. Larson testified 

that he had been exposed to smoke, fumes, soot, and toxic substances during his 

firefighting career. However, he admitted on cross-examination that he sometimes 

used a tanning bed to get a "base coat" to prevent sunburns on summer trips. 

Verbatim Report ofProceedings (VRP) (Aug. 8, 2013) at 290. He also 

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Spivey v. City of Bellevue/Larson v. City of Bellevue 

No. 91680-2 

acknowledged that he had sometimes engaged in outdoor activities without 

wearing a shirt. 

The City presented testimony from medical professionals and researchers 

who indicated that Larson may have developed melanoma even if he had never 

worked as a firefighter. The dermatologist who diagnosed Larson testified that she 

suspected "the most contributing factor" to Larson's melanoma was UV 

(ultraviolet light) exposure. VRP (Aug. 13, 2013) at 730-32. Another 

dermatologist testified that he believed Larson's melanoma was the result of 

"predisposing genetic factors and ultraviolet light exposure" and that Larson likely 

would have contracted melanoma even if he had never worked as a firefighter. 

VRP (Aug. 12, 2013) at 608-09. Another witness, an epidemiologist, analyzed 

various studies and noted that it would be inappropriate to conclude that 

firefighters are at any increased risk of melanoma. 

The Board reversed the benefits award, finding that Larson's melanoma did 

not arise from distinctive conditions of his employment as a firefighter. 

11. Larson: Appeal to Superior Court 

Larson appealed the Board's decision to the superior court. The court 

denied the City's motion for summary judgment, and the case proceeded to a jury 

trial on the hearing record. At the end of testimony, the City orally moved the 

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Spivey v. City of Bellevue/Larson v. City of Bellevue 

No. 91680-2 

court to rule as a matter of law that ( 1) the City had established by a preponderance 

of the evidence that Larson's melanoma came from factors unrelated to his work as 

a firefighter and (2) the City had thus rebutted the firefighter presumption. 

According to the City, this would leave one issue only for the jury to decide: Did 

Larson prove (now without the benefit of the firefighter presumption) that his 

melanoma was an occupational disease? The court denied the City's motion and 

allowed the jury to decide whether the City had rebutted the firefighter 

presumption. 

The court submitted 14 instructions to the jury. Jury instruction 9 explained 

the burdens of proof applicable at the board level and at the trial court level. It 

tracked applicable Washington Pattern Jury Instructions (WPI), but added a third 

paragraph addressing the City's burden of proof at the prior board proceeding. 6A 

WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL 155.03 

(6th ed. 2012) (WPI). The court also gave the jury a special verdict form that read 

as follows: 

QUESTION 1: Was the Board of Industrial Insurance Appeals 

correct in deciding that the employer rebutted, by a preponderance of 

the evidence, the presumption that Plaintiffs malignant melanoma was 

an occupational disease? 

ANSWER: _ (Write "yes" or "no") 

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Spivey v. City of Bellevue/Larson v. City of Bellevue 

No. 91680-2 

(INSTRUCTION: If you answered "no" to Question 1, do not 

answer any further questions. If you answered iiyes" to Question 1, 

answer Question 2.) 

QUESTION 2: Was the Board of Industrial Insurance Appeals 

correct in deciding that the Plaintiff did not prove by a preponderance 

of the evidence that his malignant melanoma was an occupational 

disease? 

ANSWER: __ (Write "yes" or "no"). 

Clerk's Papers (CP) (Larson) at 1775-76. The jury answered "no" to the first 

question, indicating that the City had not rebutted the presumption that Larson's 

melanoma was an occupational disease. The trial court entered a judgment in 

Larson's favor and also awarded Larson attorney fees and costs incurred before the 

Board and the court. The City appealed, and the Court of Appeals affirmed the 

trial court. Larson v. City of Bellevue, 188 Wn. App. 857,885,355 P.3d 331 

(2015), review granted, 184 Wn.2d 1033, 379 P.3d 948 (2016). 

B. Spivey 

Delmis Spivey is another Bellevue firefighter who was diagnosed with 

melanoma. Like Larson, Spivey filed a claim with the Department, seeking 

coverage for his melanoma as an occupational disease. However, the Department 

ultimately denied the claim in 2013. 

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Spivey v. City of Bellevue/Larson v. City of Bellevue 

No. 91680-2 

1. Spivey: Appeal to the Board 

Spivey appealed to the Board. At the board hearing, Spivey noted that none 

of the City's experts could definitively exclude firefighting as a cause of melanoma 

and presented similar testimony to that in Larson. 1 However, Spivey admitted to 

having a number of risk factors for melanoma, including a predominately English 

heritage, freckles, and a history of sunburns as a child. He also admitted that he 

used a tanning bed "once or twice" in his early 20's. Admin. Record (AR) at 370 

(trial transcript at 163, Apr. 12, 2014). 

The City presented evidence from the dermatologist who had diagnosed 

Spivey's melanoma. She was not aware of any evidence that would suggest a 

causal link between soot, ash, smoke, or toxic substances and his condition. She 

also testified that Spivey had certain risk factors for melanoma, such as freckling 

on his upper back (where the melanoma was located). Another doctor performed a 

medical exam of Spivey and testified that his melanoma was likely the result of 

UV exposure and not work related. The City also presented testimony from some 

of the same experts who were used in Larson. 

The Board determined that the City rebutted the firefighter presumption by 

proving by a preponderance of the evidence that Spivey's melanoma was caused 

1 Spivey was represented by the same attorney as Larson. 

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Spivey v. City ofBellevue/Larson v. City of Bellevue 

No. 91680-2 

by "sun exposure, not his work activities and exposures." AR at 3. The Board 

affirmed the Department's order rejecting Spivey's claim. 

n. Spivey: Appeal to Superior Court 

Spivey appealed the Board's decision to superior court. At the conclusion of 

its briefing, the City moved for a determination that whether the City met its 

burden to rebut the firefighter presumption "is a question of law to be decided by 

the judge." CP (Spivey) at 18, 175. 

Unlike in Larson, the judge granted the City's motion (after making a few 

changes to its wording)2 and went on to decide that the City had met its burden to 

rebut the presumption of"occupational disease" within the meaning ofRCW 

51.32.185. !d. at 175. Thus, the only remaining issue for trial is whether Spivey 

proved, without the benefit of the firefighter presumption, that his melanoma is 

"occupational." In light of the court's order, the City filed motions in limine to 

preclude comments, arguments, or references to RCW 51.32.185. 

2 The original language in the City's proposed order read, "[W]hether the City met its burden 

of production to rebut the presumption of occupational disease within the meaning ofRCW 

51.32.185 is a question of law to be decided by the judge." CP (Spivey) at 175. The 

language in the order revised and signed by the judge stated that "the City has met its burden 

to rebut the presumption of occupational disease within the meaning ofRCW 51.32.185." 

!d. The record is inconclusive as to why the judge made these changes before signing. 

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Spivey v. City of Bellevue/Larson v. City of Bellevue 

No. 91680-2 

111. Petition for Review (Larson)/Motion for Discretionary Review 

(Spivey) 

In Spivey, the firefighter moved for discretionary review of the superior 

court's decision that as a matter of law, the City had rebutted the presumption that 

melanoma in firefighters is an occupational disease. In Larson, the City petitioned 

for review of the Court of Appeals' decision to allow the rebuttal question go to the 

jury. It also challenged various aspects of jury instruction 9 and the trial court's 

award of attorney fees to Larson for litigating his claim at the board level. 

We granted the petition and the motion and consolidated the two cases. 

Order Granting Review and Consolidation, Spivey v. City of Bellevue, No. 91680-

2, consolidated with No. 92197-1 (Wash. Feb. 10, 2016). The matters are 

consolidated under Supreme Court cause no. 91680-2. 184 Wn.2d 1033. The 

remainder of Spivey's trial is pending. 

ISSUES 

1. Is the question of whether the City rebutted the firefighter 

presumption one of law or fact? 

2. In Larson, did jury instruction 9 properly inform the jury of the 

applicable burden of proof? 

3. Was Larson entitled to attorney fees and costs for expenses he 

incurred at the board level, where he did not prevail? 

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Spivey v. City of Bellevue/Larson v. City of Bellevue 

No. 91680-2 

ANALYSIS 

Here, we are asked to interpret sections of the IIA. Statutory interpretation 

is a question of law that this court reviews de novo. Cockle v. Dep 't of Labor & 

Indus., 142 Wn.2d 801, 807, 16 P.3d 583 (2001). 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." Dennis v. Dep 't of Labor & Indus., 

109 Wn.2d 467, 470, 745 P.2d 1295 (1987). 

A. RCW 51.32.185: Occupational Disease Presumption for Firefighters 

In general, the burden of proving an occupational disease under the IIA falls 

to the worker. Gorre v. City ofTacoma, 184 Wn.2d 30, 36, 357 P.3d 625 (2015); 

Olympia Brewing Co. v. Dep't of Labor & Indus., 34 Wn.2d 498, 505,208 P.2d 

1181 (1949), overruled in part by Windust v. Dep 't of Labor & Indus., 52 Wn.2d 

33, 323 P.2d 241 (1958). An "occupational disease" is defined as a disease or 

infection that arises "naturally and proximately" out of employment. RCW 

51.08.140. Thus, to receive benefits, a worker must show that his or her injury 

arose from employment. 

However, there is a statutory prima facie presumption that melanoma in 

firefighters is an occupational disease for workers' compensation purposes. RCW 

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Spivey v. City of Bellevue/Larson v. City of Bellevue 

No. 91680-2 

51.32.185(1)(c), (3). This presumption can be rebutted by a preponderance ofthe 

evidence, which may include lifestyle, hereditary factors, and exposure from other 

employment or nonemployment activities. RCW 51 .32. 185(1 ). A firefighter who 

does not qualify for the occupational disease presumption may still receive 

benefits, but he or she retains the burden of proof. Gorre, 184 Wn.2d at 33. 

Another IIA provision, RCW 51.52.115, addresses the applicable burden of 

proof when a board decision is appealed to superior court. The Board's decision is 

"prima facie correct[,] and the burden of proof shall be upon the party attacking the 

same." !d. The superior court may reach a different result only after finding by a 

preponderance of the evidence that the Board's findings and decision are 

erroneous. Gorre, 184 Wn.2d at 36. 

Here, we must decide how RCW 51 .32.185 operates at the trial court level. 

This is an issue of first impression: Washington cases involving the firefighter 

presumption have not directly addressed how it operates in superior court.3 We hold 

that whether the City rebutted the firefighter presumption by a "preponderance of the 

3 We recently addressed another aspect ofRCW 51.32.185 in Gorre, 184 Wn.2d 30. There, we 

held that the presumption did not apply to valley fever, in part because valley fever is not 

specifically enumerated in the statute. Id. at 34. But here, "malignant melanoma" is specifically 

enumerated in RCW 51.32.185(3). The Court of Appeals briefly touched on other aspects ofthe 

presumption in City of Bellevue v. Raum, 171 Wn. App. 124, 147, 286 P.3d 695 (2012), holding 

that RCW 51.32.185 does not establish an entirely separate cause of action and briefly noting 

that "[i]fthe City rebuts the presumption, [the firefighter] must come forward with competent 

evidence supporting his occupational disease claim." 

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Spivey v. City of Bellevue/Larson v. City of Bellevue 

No. 91680-2 

evidence" is a question of fact that may be submitted to the jury. We also apply the 

Morgan theory of presumptions to RCW 51.32.185 and hold that the presumption 

shifts both the burden of production and persuasion to the employer. Edmund M. 

Morgan, Instructing the Jury Upon Presumptions and Burden of Proof, 4 7 HARV. L. 

REv. 59 (1933). Relatedly, the jury instruction in Larson was proper and tracked the 

applicable statutes, and the presumptions in RCW 51.32.185 and RCW 51.52.115 do 

not conflict. Finally, Larson was entitled to attorney fees for litigating the appeal at 

the board level. Thus, as explained further below, the outcome in Larson was proper, 

but the judge in Spivey committed reversible error. 

1. Whether the City Rebutted the Firefighter Presumption Is a Factual 

Determination That was Properly Given to the Jury in Larson 

The City first argues that the question whether an employer rebutted the 

presumption in RCW 51.32.185 should be left to the judge to decide as a matter of 

law in every instance. We disagree. As outlined below, the question whether the 

employer has rebutted the presumption is a factual issue that may be properly 

submitted to the jury, as it was in Larson. 

RCW 51.32.185(1) states that the firefighter presumption may be rebutted 

"by a preponderance of the evidence." While the statute does not define 

"preponderance of the evidence," WPI 155.03 does, stating that the jury "must be 

persuaded ... that the proposition on which that party has the burden of proof is 

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Spivey v. City of Bellevue/Larson v. City of Bellevue 

No. 91680-2 

more probably true than not true." Also, Black's Law Dictionary defines 

"preponderance of the evidence" as "the burden of proof in most civil trials, in 

which the jury is instructed to find for the party that, on the whole, has the stronger 

evidence, however slight the edge may be." BLACK's LAW DICTIONARY 1373 (lOth 

ed. 2014 ). These definitions make it clear: the question of whether the 

presumption is overcome is one of fact that requires weighing all the evidence. 

The City relies on another provision, RCW 51.52.115, to support its claim 

that the rebuttal issue should instead, in all cases, be decided as a matter of law and 

removed from the jury's consideration. RCW 51.52.115 lays out the deferential 

standard that must be afforded the Board on appeal to superior court, stating that 

"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." However, the fact that a 

board decision is presumed correct does not magically turn it into a question of law 

that must be removed from the jury. In Luna de Ia Puente v. Seattle Times, 186 

Wash. 618, 626-27, 59 P.2d 753 (1936), we held that a court may allow a jury to 

decide whether a presumption has been rebutted. The court in Larson did just that. 

Thus, in Larson, the trial court did not apply the wrong standard of review 

when it allowed the jury to decide whether the city successfully rebutted the 

presumption. However, in Spivey, the trial court judge committed error when he 

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Spivey v. City of Bellevue/Larson v. City of Bellevue 

No. 91680-2 

granted the City's motion and decided as a matter of law that the firefighter 

presumption had been rebutted. Because neither party has briefed the issue, we 

decline to address whether it would ever be permissible for a judge to decide the 

issue as a matter of law. 

2. In Larson, Jury Instruction 9 Properly Informed the Jury regarding the 

Applicable Burden of Proof 

In Larson, the court gave the jury an instruction, jury instruction 9, which 

explained the applicable burdens of proof at both the prior board proceeding and at 

the trial court level. The instruction tracked WPI 155.03 but added a third 

paragraph addressing the burden of proof at the board level (italicized for ease of 

reference): 

The findings and decision of the Board of Industrial Insurance 

Appeals are presumed correct. This presumption is rebuttable, and it is 

for you to determine whether it is rebutted by the evidence. 

The burden of proof is on the firefighter to establish by a 

preponderance of the evidence that the decision is incorrect. 

At the hearing before the Board of Industrial Insurance Appeals, 

the burden of proof is on the employer to rebut the presumption that 

1) claimant's malignant melanoma arose naturally out of his conditions 

of employment as a firefighter and, 2) his employment is a proximate 

cause of his malignant melanoma. 

When it is said that a party has the burden of proof on any 

proposition, or that any proposition must be proved by a preponderance 

of the evidence, or the expression "if you find" is used, it means that 

you must be persuaded, considering all the evidence in the case bearing 

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Spivey v. City of Bellevue/Larson v. City of Bellevue 

No. 91680-2 

on the question, that the proposition on which that party has the burden 

of proof is more probably true than not true. 

CP (Larson) at 1768. The City argues that this instruction was improper for 

several reasons. It first argues that according to the Thayer theory of 

presumptions, RCW 51.32.185 merely shifts the burden ofproduction to the 

employer and that the presumption disappears after production of some 

contrary evidence. JAMES BRADLEY THAYER, A PRELIMINARY TREATISE ON 

EVIDENCE AT THE COMMON LAW ( 1898). Next, the City argues that the 

presumption in RCW 51.52.115 should take precedence over RCW 

51.32.185. Finally, the City argues that even if it was correct to inform the 

jury regarding the burden of proof at the board level, the instruction was 

misleading. We disagree with the City's arguments. 

B. RCW 51.32.185 Shifts the Burden of Both Production and Persuasion to 

the Employer 

Because the Statute Reflects a Strong Social Policy, We Apply the 

Morgan Theory to the Presumption in RCW 51.32.185 

First, the City and the Department argue that it was wrong for the jury to be 

informed about the firefighter presumption because, according to the Thayer theory 

of presumptions, the presumption disappeared after the City produced contrary 

evidence. We disagree. RCW 51.32.185 reflects a strong social policy, and thus 

we must accord it the strength intended by our legislature. The presumption does 

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Spivey v. City of Bellevue/Larson v. City of Bellevue 

No. 91680-2 

not vanish on the production of contrary evidence; it shifts both the burden of 

production and persuasion to the employer. 

To explain, we must delve a bit into abstraction. We begin by noting that 

there are two general theories of presumptions: the Thayer, or "bursting bubble," 

theory and the Morgan theory. The Thayer theory minimizes the importance of the 

presumption, while the Morgan theory gives the presumption a lasting effect 

throughout the proceedings. See generally 5 KARL B. TEGLAND, WASHINGTON 

PRACTICE: EVIDENCE LAW AND PRACTICE§§ 301.13, 301.14 (6th ed. 2016). 

The first theory-and the most widely followed today-was articulated by 

James Bradley Thayer in the late 19th century. THAYER, supra. According to 

Thayer, the only effect of a presumption is to shift the burden of producing 

evidence to the party against whom the presumption operates. Cunningham v. City 

of Manchester Fire Dep 't, 129 N.H. 232, 235-36, 525 A.2d 714 (1987). If such 

evidence is produced by that party, "the presumption is spent and disappears." 2 

MCCORMICK ON EVIDENCE§ 344, at 692 (Kenneth S. Broun ed., 7th ed. 2013). 

Practically speaking, the theory is available to permit the party relying on it to 

survive a motion for directed verdict, but it has no other value in trial. I d. The 

presumption is never mentioned to the jury if contrary evidence has been 

introduced. Thus, under the Thayer theory, the City would merely have to present 

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Spivey v. City of Bellevue/Larson v. City of Bellevue 

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rebuttal evidence "sufficient to support a finding contrary to the presumed fact" in 

order to destroy the presumption entirely and the burden of proof would remain 

with the firefighter at all times. !d. at 693. 

A second theory of presumptions, sometimes called the Morgan theory, 

recognizes that special policies behind a presumption may require that a jury be 

informed of its existence, even if some rebuttal evidence has been produced. !d. at 

695. Technically speaking, under the Morgan theory, a presumption shifts both the 

burden of producing evidence and the burden of persuasion to the opponent of the 

presumption. Cunningham, 129 N.H. at 236. The presumption does not disappear 

on the production of contrary evidence. Rather, a "Morgan theory presumption ... 

operates with a weight commensurate with the policy considerations that the 

presumption embodies." Id. 

We have not adopted a general rule for how presumptions such as this one 

should operate, and thus in Washington the law of presumptions continues to be 

defined by statutes and case law. TEGLAND, supra, § § 3 01.1, 3 01.13. Depending 

on the underlying statute and type of case, Washington has applied the Morgan 

theory, the Thayer theory, or in many instances neither theory to statutory 

presumptions. Id. § 301.13. Due to the unsettled nature of our case law, it is 

understandable why the parties reach contrary positions as to which theory should 

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Spivey v. City of Bellevue/Larson v. City of Bellevue 

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apply. Here, we conclude that the plain language of the statute, the legislative 

intent behind it, and case law from other jurisdictions supports applying the 

Morgan theory to RCW 51.32.185. We hold that the statute thus shifts the burden 

of production and persuasion to the employer. 

The plain language ofthe statute indicates that RCW 51.32.185 does more 

than merely require the employer to produce some contrary evidence. The statute 

does not use the words "contrary evidence" or "some evidence." It explicitly states 

that the presumption may be rebutted with a preponderance of the evidence. This 

term indicates that the burden of proof shifts to the party contesting the benefits 

award to show, more likely than not, that the firefighter's disease is not 

occupationally related. Drafters of the WPI seem to agree with this interpretation: 

the WPI generally treat presumptions that state a quantum of proof as shifting to 

the opponent the burden of proof as to the presumed fact. TEGLAND, supra, 

§ 301.15; 6 WASHINGTONPRACTICE: WASHINGTONPATTERN JURY INSTRUCTIONS: 

CIVIL 24.01-.05 (6th ed. 2012). 

The City and the Department nevertheless argue that the words "prima 

facie" indicate that the presumption vanishes on production of contrary evidence. 

To clear up any confusion, we turn to the statute's legislative history and to case 

law from other jurisdictions to further clarify which type of presumption the 

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Spivey v. City of Bellevue/Larson v. City of Bellevue 

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legislature intended. A broader consideration of the policy behind RCW 51.32.185 

shows that the legislature did not intend the presumption to simply vanish on 

production of some rebuttal evidence. 

While we have not addressed how presumptions in statutes such as RCW 

51.32.185 should be treated, other jurisdictions have done so and have applied the 

Morgan theory to analogous "firefighter statutes." For example, the New 

Hampshire Supreme Court analyzed an analogous statute, which stated, '" [T]here 

shall exist a prima facie presumption that heart or lung disease in a firefighter ... 

is occupationally related."' Cunningham, 129 N.H. at 23 5 (quoting former N.H. 

Rev. Stat. Ann. § 281:2 (1988). The court reviewed the statute's legislative history 

and determined that its apparent purpose was to implement a social policy of 

providing compensation to firefighters in circumstances where medical evidence 

fails to establish the definitive cause of the plaintiff's heart disease. Id. at 236. It 

went on to note that applying the Thayer theory would not be consistent with the 

policy objective of the statute, and thus it applied the statutory presumption "with a 

force consistent with the legislative concerns underlying the presumption." Id. at 

237. Maryland, Missouri, North Dakota, and other jurisdictions have followed suit 

when interpreting similar statutes. See, e.g. Montgomery County Fire Bd. v. 

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Spivey v. City of Bellevue/Larson v. City of Bellevue 

No. 91680-2 

Fisher, 298 Md. 245, 255-57, 468 A.2d 625 (1983); Byous v. Mo. Local Gov't 

Emps. Ret. Sys. Bd. ofTrs., 157 S.W.3d 740, 746-47 (Mo. Ct. App. 2005). 

As discussed by the Court of Appeals, New Hampshire and other courts 

have also noted that analogous presumptions serve the purpose of relieving 

firefighters of the "nearly impossible burden of proving fire fighting actually 

caused their disease." Wanstrom v. N.D. Workers Camp. Bureau, 2001 ND 21, 

621 N.W.2d 864, 867 (2001). The New Hampshire Supreme Court noted that 

"[e]ven a slender amount of rebuttal evidence can too handily defeat a Thayer 

presumption," and such is the situation here. Cunningham, 129 N.H. at 237. 

Under the City's proposed interpretation, the City would merely have to appeal all 

decisions to the Board in order to defeat most firefighters' claims. Given the 

difficulty of actually proving the specific cause of an individual's melanoma, an 

employer will almost always be able to produce evidence to rebut a Thayer 

presumption. 

The Washington Legislature appeared to take these considerations into 

account when it added melanoma to the list of qualifying diseases in RCW 

51.32.185. The statute was adopted in 1987 and originally provided only 

presumptive coverage for respiratory diseases. LAWS OF 1987, ch. 515, § 1. In 

2002, the legislature amended the statute to add additional diseases, including 

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Spivey v. City of Bellevue/Larson v. City of Bellevue 

No. 91680-2 

"malignant melanoma," to the list.4 LAWS OF 2002, ch. 337, § 1(e). It 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. 

We thus apply the Morgan theory to the presumption: once a firefighter 

shows that he or she suffers from a qualifying disease, RCW 51.32.185(1) imposes 

on the employer the burden of establishing otherwise by a preponderance of the 

evidence. To be clear, this is a burden both to produce contrary evidence and to 

persuade the finder of fact otherwise. The jury may be instructed regarding the 

presumption in RCW 51.32.185. The plain language of the statute, case law from 

4 The legislature included a finding that a review of firefighter epidemiology calculated a 

"statistically significant risk for melanoma among fire fighters." This finding was later vetoed 

by the governor. LAWS OF 2002, ch. 337 (veto message explaining that "the assumptions in 

section 1 of this bill have not been clearly validated by science and medicine"). 

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Spivey v. City of Bellevue/Larson v. City of Bellevue 

No. 91680-2 

other jurisdictions, and the statute's broader social purpose indicate that RCW 

51.32.185 is "stronger" than a Thayer presumption. 

We stress, however, that this standard does not impose on the employer a 

burden of proving the specific cause ofthe firefighter's melanoma. Rather, it 

requires that the employer 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. See RCW 51.32.185(1 ). Finally, we emphasize the 

narrowness of this holding: While we apply the Morgan theory here, we decline to 

adopt a general rule. Rather, we limit our holding's applicability to this statute. 

C. RCW 51.52.115 Does Not Flip the Burdens That Were Applicable at the 

Department and Board Level 

The City and the Department next claim that because RCW 51.52.115 sets 

forth the burden of proof for all appeals to superior court, it governs over the 

provisions in RCW 51.32.185. The City goes on to argue that the trial court 

disregarded RCW 51.52.115 when it informed the jury about the employer's 

burden of proof at the board level. We disagree. We clarify that RCW 51.52.115 

requires the party challenging a board decision to show that the decision was not 

supported by sufficient evidence. However, it does not change the burdens that 

were applicable at the department and board levels. 

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Spivey v. City of Bellevue/Larson v. City of Bellevue 

No. 91680-2 

RCW 51.52.115 states that the Board's decision is presumed correct on 

appeal, but we have recently clarified that it does not fundamentally flip any 

burden of proof or presumption applicable in initial department or board hearings. 

Rather, the party challenging a board decision simply must show that the Board did 

not meet the applicable burden or adhere to the applicable presumption. In 

Department of Labor & Industries v. Rowley, we clarified that "this court has held 

that an appellant can meet the burden imposed under RCW 51.5 2.115 just by 

showing that the Department's order is not supported by sufficient evidence-that 

is, without necessarily presenting any new affirmative evidence that the 

Department's order is incorrect." 185 Wn.2d 186,207-08,378 P.3d 139 (2016) 

(citing Olympia Brewing Co., 34 Wn.2d at 504). In other words, a party appealing 

a board decision can meet the standard in RCW 51.52.115 by demonstrating that 

the employer's evidence at the board level did not, in fact, rebut the firefighter 

presumption by a preponderance of the evidence. Any other rule would make it 

nearly impossible for a firefighter to successfully appeal an adverse "rebuttal" 

decision by the Board. 

RCW 51.52.115 does not fundamentally flip the burden of proof applicable 

at department or board proceedings. Rather, it imposes on the party challenging a 

board decision the burden to show that the Board's decision was incorrect by 

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Spivey v. City of Bellevue/Larson v. City of Bellevue 

No. 91680-2 

demonstrating that the Board's "findings and decision are erroneous." Gorre, 184 

Wn.2d at 36. Accordingly, it was proper for the jury to be informed of the 

employer's burden at the board level, so that it could determine whether the 

firefighter had made this demonstration. 

D. Jury Instruction 9 Does Not Conflict with La Vera 

The City next argues that instructing the jury about the burden of proof at 

the prior Board proceeding was inappropriate because under La Vera v. 

Department of Labor & Industries, 45 Wn.2d 413,415,275 P.2d 426 (1954), the 

jury instruction added "complexity and confusion" to the jury's task by "conflating 

which party had the burden of proof at each stage ofthe proceeding." Suppl. Br. of 

Pet'r City of Bellevue at 9; Suppl. Br. ofPet'r L&I at 20. We agree that the jury 

instruction added complexity to the jury's determination. But the instruction also 

presented the jury with an accurate statement of the law. 

In La Vera, another workers' compensation case, we stated that the question 

of the burden of proof at the board level is immaterial in an appeal to superior 

court from a board's order. Id. at 414-15. But La Vera does not apply here. That 

case was decided approximately 33 years prior to RCW 51.32.185's enactment, 

and the jury was deciding a different issue: whether the Department correctly 

reclassified the claimant from total to permanent partial disability. Id. at 414. 

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Spivey v. City of Bellevue/Larson v. City of Bellevue 

No. 91680-2 

In the context ofRCW 51.32.185, the question ofthe burden ofproofat the 

board level is material on appeal to superior court. The jury cannot know whether 

the City rebutted the firefighter presumption if they are not informed of its 

existence. We presume that jurors follow instructions, and here, there is no 

evidence to the contrary. Hizey v. Carpenter, 119 Wn.2d 251,269-70,830 P.2d 

646 (1992). The instruction explained that the Board's decision was presumed 

correct. It also explained that Larson bore the burden of proving by a 

preponderance of the evidence that the decision was incorrect. The challenged 

paragraph does not ask the jury to directly apply the firefighter presumption. 

Rather, it made the jury aware of the burden of proof at the board level so that they 

could determine whether that burden was met. Further, as discussed previously, 

the special policy behind the presumption in RCW 51.32.185 indicates that the jury 

may be informed of the presumption's existence. 

Accordingly, jury instruction 9 neither improperly informed the jury about 

the applicable burden of proof at the trial court level nor unduly added "complexity 

and confusion" to the jury's task. While the jury does not apply the firefighter 

presumption, the jury may be informed that the presumption once existed. 

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Spivey v. City of Bellevue/Larson v. City of Bellevue 

No. 91680-2 

E. The Jury Instruction, When Read as a Whole, Was Not Misleading 

Finally, though it was proper to inform the jury of the burden of proof at the 

board level, the City argues that jury instruction 9 was nevertheless misleading 

because, due to its syntax, it "saddled [the] City with the double burden of 

disproving both elements of an occupational disease claim." City of Bellevue Pet. 

for Review at 17. We disagree. As the Court of Appeals noted, the instruction 

directly tracks the statutory definition. When read in context with the rest of the 

instruction, it paints an accurate picture of the applicable law. 

Jury instructions are proper when, read as a whole, they permit parties to 

argue their theories of the case, do not mislead the jury, and properly inform the 

jury of the applicable law. State v. Hutchinson, 135 Wn.2d 863, 885, 959 P.2d 

1061 ( 1998). Even if an instruction is misleading, it will not be reversed unless it 

prejudices a party. Keller v. City of Spokane, 146 Wn.2d 237, 249, 44 P.3d 845 

(2002). We presume that juries follow lawful instructions. Hizey, 119 Wn.2d at 

270. The City argues that the paragraph quoted below was misleading because it 

erroneously led the jury to believe that the City was required to rebut both the 

"arising naturally" element and the "proximate cause" elements in RCW 

51.08.140: 

At the hearing before the Board of Industrial Insurance Appeals, 

the burden of proof is on the employer to rebut the presumption that 1) 

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Spivey v. City of Bellevue/Larson v. City of Bellevue 

No. 91680-2 

claimant's malignant melanoma arose naturally out of his conditions of 

employment as a firefighter and, 2) his employment is a proximate 

cause of his malignant melanoma. 

CP (Larson) at 1768 (emphasis added). Specifically, the City argues that the use of 

the conjunction "and" between the two clauses required the jury to analyze 

whether the City had rebutted both (not just one) of the elements. 

The City has a point that a hypertechnical reading of the above paragraph 

could lead a reasonable mind to believe that the City had a "double burden" here. 

However, as the Court of Appeals notes, it is also true that the jury instruction 

directly tracks the applicable statutory definition. The IIA defines an occupational 

disease as one that "arises naturally and proximately out of employment." RCW 

51.08.140. This jury instruction does so as well but merely breaks the definition 

into two parts. 

Further, the instruction is not misleading when read in context with the rest 

of jury instruction 9. As explained in the previous section, the rest of the 

instruction clarifies that the findings and decision of the Board are presumed 

correct. CP (Larson) at 1768. It also states that the burden of proof is on the 

firefighter to establish by a preponderance of the evidence that the decision is 

incorrect. Id. The instruction, when read as a whole, is accurate. 

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Spivey v. City of Bellevue/Larson v. City of Bellevue 

No. 91680-2 

F. RCW 51.32.185(7) Allows a Firefighter To Recover Attorney Fees 

Incurred at the Board Level if He or She Is Ultimately Successful on 

Appeal to Superior Court 

Under RCW 51.32. 185(7) and RCW 51.52. 130, the trial court 

awarded Larson $67,470.00 in attorney fees and $12,132.42 in costs. CP 

(Larson) at 1900-01, 1904. The City argues that fees and costs incurred 

litigating the board appeal, where Larson did not prevail, should not have 

been included in that award. Because the plain language of the statute 

authorizes attorney fees for "all reasonable costs of the appeal," we disagree. 

Whether a statute authorizes an award of attorney fees is a question of law 

reviewed de novo. Torgerson v. One Lincoln Tower, LLC, 166 Wn.2d 510, 

517, 210 P.3d 318 (2009). 

RCW 51 .32.185(7) contains two subsections specifically addressing 

attorney fees in cases involving the firefighter presumption. First, RCW 

51.32.185(7)(a) addresses how attorney fees should be handled at the board 

level. It states that "[w]hen a determination involving [the firefighter 

presumption] is appealed to the [Board] and the final decision allows the 

claim for benefits, the [Board] shall order that all reasonable costs of the 

appeal, including attorney fees and witness fees, be paid to the firefighter ... 

by the opposing party." Next, RCW 51.32.185(7)(b) states that "[w]hen a 

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Spivey v. City of Bellevue/Larson v. City of Bellevue 

No. 91680-2 

determination involving the presumption established in this section is 

appealed to any court and the final decision allows the claim for benefits, the 

court shall o~der that all reasonable costs of the appeal, including attorney 

fees and witness fees, be paid to the firefighter ... by the opposing party." 

(emphasis added). 

The City argues that under the plain language of the statute, only the 

Board, not the superior court, has the authority to award fees incurred before 

the Board. They assert that because Larson did not prevail before the Board, 

he was not entitled to recover attorney fees and costs at that proceeding. 

Larson argues that RCW 51.32.185(7)(b) clearly allows him to recover 

attorney fees for services before the Board when that decision is reversed on 

appeal to the superior court. He notes that he had no reason to appeal the 

Department's order allowing his claim, and that to exclude his costs and fees 

incurred at the Board would "contort[] the fee provisions ofRCW 51.32.185 

and the overriding policy of protecting workers as opposed to employers." 

Larson's Suppl. Br. at 18. 

We agree with Larson: RCW 51.32.185(7) is broader than the general 

provision governing attorney fees in workers' compensation cases. The general 

provision, RCW 51.52.130, limits recovery to "services before the court only." 

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Spivey v. City of Bellevue/Larson v. City of Bellevue 

No. 91680-2 

This court has held that this provision does not include fees for work at the Board. 

See, e.g., Borenstein v. Dep't of Labor & Indus., 49 Wn.2d 674, 676-77,306 P.2d 

228 (1957). However, RCW 51.32.185(7)(b) does not contain such limiting 

language. It speaks more broadly, allowing "all reasonable costs of the appeal, 

including attorney fees and witness fees." 

Fees incurred before the Board are reasonable "costs of appeal." This is 

especially true in workers' compensation cases where generally the trial is 

conducted on the hearing record. All witnesses are called at the board level, and 

the trial court may analyze only the documentation and testimony accumulated at 

that level. RCW 51.52.115 (stating "the court shall not receive evidence or 

testimony other than, or in addition to, that offered before the board"). Thus, a 

great deal of the "costs of appeal" are likely those that are incurred before the 

Board, not the trial court. 

This result is also consistent with our obligation to construe the IIA liberally 

in favor of the worker. We award attorney fees in industrial insurance cases in 

order to "'guarantee the injured [worker] adequate legal representation in 

presenting his claim on appeal without the incurring of legal expense or the 

diminution ofhis award."' Harbor Plywood Corp. v. Dep't of Labor & Indus., 48 

Wn.2d 553, 559,295 P.2d 310 (1956) (quoting Boeing Aircraft Co. v. Dep't of 

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Spivey v. City of Bellevue/Larson v. City of Bellevue 

No. 91680-2 

Labor & Indus., 26 Wn.2d 51, 57, 173 P.2d 164 (1946)). To refuse to grant 

attorney fees here, when Larson prevailed at the Court of Appeals and before this 

court, would result in an inadequate recovery for Larson. We affirm the Court of 

Appeals and uphold the attorney fees award. We also grant Larson's request for 

attorney fees on appeal to this court. 

CONCLUSION 

RCW 51.32.185 reflects the legislature's intent to relieve a firefighter of 

unique problems of proving that fire fighting caused his or her disease. 

Accordingly, we apply the firefighter presumption with a force that gives life to the 

legislature's words. We hold that the question whether the City rebutted the 

presumption in RCW 51.52.185 is one of fact that may be submitted to the jury. In 

Spivey, the trial court erred when it decided the issue as a matter of law. We also 

clarify that RCW 51.32.185 shifts both the burden of production and the burden of 

persuasion to the employer. Thus, in Larson, jury instruction 9 accurately stated 

the applicable law. Finally, we find that Larson is entitled to attorney fees for 

litigating his claim before the Board and before this court. We thus affirm the 

Court of Appeals in Larson, but reverse the trial court's ruling in Spivey and 

remand for proceedings in accordance with this decision. 

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Spivey v. City of Bellevue/Larson v. City of Bellevue 

No. 91680-2 

WE CONCUR: 

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