### NOTICE: SLIP OPINION (not the court’s final written decision) The opinion that begins on the next page is a slip opinion. Slip opinions are the written opinions that are originally filed by the court. A slip opinion is not necessarily the court’s final written decision. Slip opinions can be changed by subsequent court orders. For example, a court may issue an order making substantive changes to a slip opinion or publishing for precedential purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits (for style, grammar, citation, format, punctuation, etc.) are made before the opinions that have precedential value are published in the official reports of court decisions: the Washington Reports 2d and the Washington Appellate Reports. An opinion in the official reports replaces the slip opinion as the official opinion of the court. The slip opinion that begins on the next page is for a published opinion, and it has since been revised for publication in the printed official reports. The official text of the court’s opinion is found in the advance sheets and the bound volumes of the official reports. Also, an electronic version (intended to mirror the language found in the official reports) of the revised opinion can be found, free of charge, at this website: https://www.lexisnexis.com/clients/wareports
. For more information about precedential (published) opinions, nonprecedential (unpublished) opinions, slip opinions, and the official reports, see https://www.courts.wa.gov/opinions and the information that is linked there.

### --F-1-~E 

# ,/ 

# '
' ltl CLERKS OFFICE " IUPREME COURT,**GT~lf** WASHiNli9ft DATE 

## 09 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 LABORAND INDUSTRIES, ) ) Respondents. ) 

# __________________________) ) WILFRED A. LARSON, ) ) Respondent, ) ) 

### v. ) ) CITY OF BELLEVUE, ) ) Petitioner, ) ) and ) ) DEPARTMENT OF LABORAND ) INDUSTRIES, ) ) Defendant. ) 

# ____________________________) No. 91680-2 (consolidated with No. 92197-1)
EnBane
Filed 

### FEB 09 2017Spivey v. City of Bellevue/Larson v. City of Bellevue No. 91680-2
OWENS, J.- These consolidated cases involve two city ofBellevue (City) firefighters who were diagnosed with malignant melanoma and filed claims for workers' compensationbenefits. In both cases, the Board ofIndustrial Insurance Appeals (Board) denied the firefighters' claims. Both firefighters then appealedthe Board's decision to King County Superior Court. Under the Industrial Insurance Act (IIA), Title 51 RCW, a worker injured in the course ofemployment who suffers from an "occupational disease" is entitled to workers' compensationbenefits. While generally the burden ofprooffalls to the worker, there is a statutory presumptionthat malignant melanoma in firefighters is occupational. RCW 51.32.185(1) (the "firefighterpresumption"). The parties disagree about various aspects ofhow-andwhether-the presumption in RCW 51.32.185 should operate when a board decision is appealedto superior court. We note that RCW 51.32.185 reflects a strong social policy in favor ofthe worker and conclude that (1) whetherthe City rebutted the firefighter presumption is a factual determination that was properly given to thejury in 

### Larson, but improperly decided as a matter oflaw in 

### Spivey, (2) RCW 51.32.185 shifts both the burden ofproduction and burden ofpersuasion to the employer, (3) in 

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

2Spivey v. City of Bellevue/Larson v. City of Bellevue No. 91680-2

fees at the Board level. We thus affirm the Court ofAppeals' decision in Larson and reverse the trial court's decision in Spivey. FACTS A. Larson

WilfredLarson 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 withthe Department ofLabor and Industries (the Department), seeking coverage for his melanoma as an occupational disease. The Department allowedthe 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, Larsonpresented testimony from a family practice physician/medical legal consultant who opined that Larson's work as a firefighter was likely a cause ofhis melanoma. Larsontestified that he had been exposed to smoke, fumes, soot, and toxic substances during his firefighting career. However, he admitted on cross-examination thathe sometimes used a tanning bedto get a "base coat" to prevent sunburns on summer trips. Verbatim Report ofProceedings (VRP) (Aug. 8, 2013) at 290. He also

3Spivey v. City of Bellevue/Larson v. City of Bellevue No. 91680-2 acknowledgedthat he had sometimes engaged in outdoor activities without wearing a shirt. The City presented testimony from medical professionalsandresearchers who indicatedthat Larson may have developed melanoma even ifhe 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 dermatologisttestified that he believed Larson's melanoma was the result of "predisposing genetic factors and ultraviolet light exposure" and thatLarson likely would have contracted melanoma even ifhe 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 ofmelanoma. The Board reversed the benefits award, finding that Larson's melanoma did not arise from distinctive conditions ofhis 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 summaryjudgment, and the case proceeded to ajury trial on the hearing record. Atthe end oftestimony, the City orally moved the

4Spivey v. City of Bellevue/Larson v. City of Bellevue No. 91680-2



### court to rule as a matter oflaw that (1) the City had established by a preponderance ofthe 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 thejury to decide: Did Larsonprove (now without the benefit ofthe firefighter presumption) that his melanoma was an occupational disease? The court denied the City's motion and allowed thejuryto decide whether the City had rebutted the firefighter presumption. The court submitted 14 instructions to thejury. Jury instruction 9 explained the burdens ofproofapplicable 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 ofproofat the prior board proceeding. 6A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL 

### 155.03 (6th ed. 2012) (WPI). The court also gave thejury a special verdict form that read
as follows: QUESTION 1: 

### Was the Board ofIndustrial Insurance Appeals correct in deciding that the employer rebutted, by a preponderance of the evidence, the presumption thatPlaintiffs malignant melanoma was an occupational disease? ANSWER:
_ 

### (Write "yes" or "no")

5Spivey v. City of Bellevue/Larson v. City of Bellevue No. 91680-2
(INSTRUCTION: 

## If you answered "no" to 

### Question 1, do not answer anyfurther questions. 

## If you answered iiyes" to 

### Question 1, answer Question 2.) QUESTION 2: Was the Board ofIndustrial Insurance Appeals correct in deciding that the Plaintiffdid 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. Thejury 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 ajudgmentin Larson's favor and also awarded Larson attorney fees and costs incurred before the Board and the court. The City appealed, and the Court ofAppeals 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.

6Spivey v. City of Bellevue/Larson v. City of Bellevue No. 91680-2

1. Spivey: Appeal to theBoard Spivey appealed to the Board. At theboard hearing, Spiveynoted that none ofthe City's experts could definitively exclude firefighting as a cause ofmelanoma and presented similartestimony to that inLarson. 1 However, Spivey admitted to having a number ofrisk factors for melanoma, including a predominatelyEnglish heritage, freckles, and a history ofsunburns as a child. He also admitted that he used a tanning bed "once ortwice" in his early 20's. Admin. Record (AR) at 370 (trial transcript at 163, Apr. 12, 2014). The Citypresented evidence from the dermatologist who had diagnosed Spivey's melanoma. She was not aware ofany evidence that would suggest a causal linkbetween soot, ash, smoke, or toxic substances and his condition. She also testified that Spiveyhad certain risk factors for melanoma, such as freckling
onhis upperback (where the melanoma was located). Another doctorperformed a medical exam ofSpivey and testified thathis melanoma was likelythe result of UV exposure and not workrelated. The City also presentedtestimony from some ofthe same experts who wereused inLarson. The Board determined that the Cityrebutted the firefighter presumptionby proving by a preponderance ofthe evidence that Spivey's melanomawas caused

1 Spiveywas representedbythe same attorney as Larson.
7Spivey 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 oflaw to be decided by thejudge." CP (Spivey) at 18, 175. Unlike in Larson, 

### thejudge granted the City's motion (after making a few changes to its wording)2 

### and went on to decide thatthe City had met its burdento 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 ofthe firefighter presumption, that his melanoma is "occupational." In light ofthe 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 ofproduction to rebut the presumption ofoccupational disease within the meaning ofRCW 51.32.185 is a question oflaw to be decided by thejudge." CP (Spivey) at 175. The language in the order revised and signed by thejudge stated that "the City has met its burden to rebut the presumption ofoccupational disease within the meaning ofRCW 51.32.185." !d. The record is inconclusive as to why thejudge made these changes before signing. 8Spivey v. City of Bellevue/Larson v. City of Bellevue No. 91680-2

111. PetitionforReview (Larson)/Motionfor DiscretionaryReview (Spivey) 

### In Spivey, 

### the firefighter moved for discretionary review ofthe superior court's decision that as a matter oflaw, the City had rebutted the presumption that melanoma in firefighters is an occupational disease. InLarson, 

### the City petitioned for review ofthe Court ofAppeals' 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 ofattorney 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, consolidatedwith 

### No. 92197-1 (Wash. Feb. 10, 2016). The matters are consolidated under Supreme Court cause no. 91680-2. 184 Wn.2d 1033. The remainder ofSpivey's trial is pending. ISSUES 1. Is the question ofwhether the City rebutted the firefighter presumption one oflaw or fact? 2. In Larson, 

### didjury instruction 9 properly inform thejury ofthe applicable burden ofproof? 3. Was Larson entitled to attorney fees and costs for expenses he incurred at the board level, where he did not prevail?
9Spivey v. City of Bellevue/Larson v. City of Bellevue No. 91680-2
ANALYSIS Here, we are asked to interpret sections ofthe IIA. Statutory interpretation is a question oflaw thatthis 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 ofthe worker." Dennis v. Dep 't of Labor & Indus., 109 Wn.2d 467, 470, 745 P.2d 1295 (1987). A. RCW51.32.185: OccupationalDisease Presumptionfor Firefighters In general, the burden ofproving 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'tof Labor & Indus., 34 Wn.2d 498, 505,208 P.2d 1181 (1949), overruled inpart 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 ofemployment. RCW 51.08.140. Thus, to receive benefits, a worker must show that his orher injury
arose from employment. However, there is a statutory prima facie presumption that melanoma in firefighters is an occupational disease for workers' compensationpurposes. RCW

10Spivey 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 ofproof. 

### Gorre, 184 Wn.2d at 33. Another IIA provision, RCW 51.52.115, addresses the applicable burden of proofwhen a board decision is appealed to superior court. The Board's decision is "prima facie correct[,] and the burden ofproofshall be uponthe party attacking the same." 

### !d. The superior court may reach a different result only after finding by a preponderance ofthe 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 offirst impression: Washington cases involving the firefighter presumption have not directly addressedhow it operates in superior court. 3 We hold that whether the City rebutted the firefighter presumption by a "preponderance ofthe

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, inpartbecause valley fever is not specifically enumerated in the statute. Id. at 34. Buthere, "malignantmelanoma" is specifically enumerated in RCW 51.32.185(3). The Court ofAppeals 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 ofaction and briefly noting that "[i]fthe City rebuts the presumption, [the firefighter] must come forward with competent evidence supporting his occupational disease claim." 11Spivey v. City of Bellevue/Larson v. City of Bellevue No. 91680-2

evidence" is a question offact that may be submittedto thejury. We also apply the Morgantheory ofpresumptions to RCW 51.32.185 and hold thatthe presumption shifts both the burden ofproduction and persuasionto the employer. EdmundM. Morgan, Instructing the Jury Upon Presumptions andBurden of Proof, 4 7 HARV. L. 

### REv. 59 (1933). Relatedly, thejury instruction in Larson was proper and trackedthe applicable statutes, and the presumptions in RCW 51.32.185 andRCW 51.52.115 do not conflict. Finally, Larson was entitledto attorney fees for litigatingthe appeal at the board level. Thus, as explained further below, the outcome inLarson was proper, butthejudge in Spivey committedreversible error. 1. Whether the City Rebuttedthe FirefighterPresumptionIs a Factual Determination That was Properly Given to the Jury in Larson The City first argues thatthe question whether an employerrebuttedthe presumption in RCW 51.32.185 should be left to thejudgeto decide as a matter of law in every instance. We disagree. As outlined below, the question whetherthe employer has rebutted the presumption is a factual issue thatmay beproperly submitted to thejury, as it was in Larson. RCW 51.32.185(1) states thatthe firefighter presumption may be rebutted "by a preponderance ofthe evidence." While the statute does not define "preponderance ofthe evidence," WPI 155.03 does, stating thatthejury "mustbe persuaded
... thatthe proposition on which that party has the burden ofproofis
12Spivey v. City of Bellevue/Larson v. City of Bellevue No. 91680-2

more probably true than not true." Also, Black's LawDictionary defines "preponderance ofthe evidence" as "the burden ofproofin most civil trials, in which thejury is instructed to find for the party that, onthe whole, has the stronger evidence, however slight the edge may be." BLACK's LAWDICTIONARY 1373 (lOth ed. 2014). These definitions make it clear: the question ofwhether the presumption is overcome is one offact 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 oflaw and removed from thejury's consideration. RCW 51.52.115 lays outthe deferential standard that must be afforded the Board on appeal to superior court, stating that "the findings and decision ofthe board shall be prima facie correct and the burden ofproofshall 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 oflaw that must be removed from thejury. InLuna de Ia Puente v. Seattle Times, 186 Wash. 618, 626-27, 59 P.2d 753 (1936), we held that a court may allow ajuryto decide whether a presumption has been rebutted. The court in Larson didjustthat. Thus, in Larson, the trial court did not apply the wrong standard ofreview when it allowed thejuryto decide whether the city successfully rebutted the presumption. However, in Spivey, the trial courtjudge committed error when he

13Spivey v. City of Bellevue/Larson v. City of Bellevue No. 91680-2 granted the City's motion and decided as a matter oflaw that the firefighter presumption had been rebutted. Because neitherparty has briefed the issue, we decline to address whether it would everbe permissible for ajudgeto decide the issue as a matter oflaw. 2. In Larson, Jury Instruction 9 Properly Informed the Jury regarding the ApplicableBurden of Proof InLarson, the court gave thejury an instruction,jury instruction 9, which explained the applicable burdens ofproofat boththe prior board proceeding and at the trial court level. The instructiontracked WPI 155.03 but added athird paragraph addressing the burden ofproofat the board level (italicized for ease of reference): The findings and decision ofthe Board ofIndustrial 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 ofthe evidence that the decision is incorrect. Atthe hearingbefore the Boardof IndustrialInsuranceAppeals, the burden of proofis on the employer to rebut thepresumption that 1) claimant's malignantmelanomaarose naturallyoutof his conditions of employment as afirefighter and, 2) his employment is aproximate cause of his malignant melanoma. When it is said that a party has the burden of proof on any proposition, orthat any propositionmustbeprovedby apreponderance ofthe evidence, or the expression "ifyou find" is used, it means that you mustbepersuaded, considering all the evidence inthe case bearing 14Spivey v. City of Bellevue/Larson v. City of Bellevue No. 91680-2

onthe question, thatthe proposition on whichthatparty has the burden ofproofis more probably true than nottrue. CP (Larson) at 1768. The City argues that this instruction was improper for several reasons. Itfirst argues that according to the Thayer theory of presumptions, RCW 51.32.185 merely shifts the burden ofproductionto the employer and that the presumption disappears after production ofsome contrary evidence. JAMES BRADLEY THAYER, A PRELIMINARY TREATISE ON EVIDENCE AT THE COMMON LAW (1898). Next, the City argues thatthe presumption in RCW 51.52.115 should take precedence over RCW 51.32.185. Finally, the City argues that even ifit was correct to informthe juryregarding the burden ofproofat the board level, the instruction was misleading. We disagree withthe City's arguments. B. RCW51.32.185 Shifts the Burden of Both Production andPersuasion to the Employer Because the Statute Reflects a Strong SocialPolicy, We Apply the Morgan Theory to the Presumption in RCW51.32.185 First, the City and the Department argue that 

### itwas wrong for thejuryto be informed about the firefighter presumption because, according to the Thayertheory ofpresumptions, the presumption disappeared after the City produced contrary evidence. We disagree. RCW 51.32.185 reflects a strong social policy, andthus
we must accord it the strength intended by our legislature. The presumption does
15Spivey v. City of Bellevue/Larson v. City of Bellevue No. 91680-2

not vanish onthe production ofcontrary evidence; it shifts boththe burden of production and persuasion to the employer. To explain, we must delve a bit into abstraction. We beginbynoting that there are two general theories ofpresumptions: the Thayer, or "bursting bubble," theory and the Morgan theory. The Thayer theory minimizes the importance ofthe 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-andthe most widely followed today-was articulated by James Bradley Thayer in the late 19th century. THAYER, supra. According to Thayer, the only effect ofa presumption is to shiftthe burden ofproducing 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). Ifsuch evidence is producedby thatparty, "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 permitthe partyrelying on it to survive a motion for directed verdict, but it has no other value in trial. 

### Id. The presumption is never mentioned to thejury ifcontrary evidence has been introduced. Thus, under the Thayer theory, the City would merely have to present

16Spivey v. City of Bellevue/Larson v. City of Bellevue No. 91680-2
rebuttal evidence "sufficientto support a finding contrary to the presumed fact" in order to destroy the presumption entirely and the burden ofproofwould remain with the firefighter at all times. 

### !d. at 693. A second theory ofpresumptions, sometimes calledthe Morgan theory, recognizes that special policies behind a presumption may require that ajury be informed ofits existence, even ifsome rebuttal evidence has been produced. 

### !d. at 695. Technically speaking, under the Morgan theory, a presumption shifts both the burden ofproducing evidence andthe burden ofpersuasion to the opponent ofthe presumption. Cunningham, 129 N.H. at 236. The presumption does not disappear
on the production ofcontrary evidence. Rather, a "Morgantheory 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 ofpresumptions continues to be defined by statutes and case law. TEGLAND, supra, 

### § § 301.1, 301.13. Depending
on the underlying statute and type ofcase, Washington has applied the Morgan theory, the Thayer theory, or in many instances neither theory to statutory presumptions. 

### Id. § 301.13. Dueto the unsettled nature ofour case law, itis understandable why the parties reach contrary positions as to whichtheory should

17Spivey v. City of Bellevue/Larson v. City of Bellevue No. 91680-2 apply. Here, we conclude thatthe plain language ofthe statute, the legislative intent behind it, and case law from otherjurisdictions supports applying the Morgan theory to RCW 51.32.185. We holdthatthe statute thus shifts the burden ofproduction 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." Itexplicitly states that the presumption may be rebutted with a

### preponderance ofthe evidence. This term indicates thatthe burden ofproofshifts to the party contesting the benefits award to show, more likely than not, that the firefighter's disease is not occupationally related. Drafters ofthe WPI seem to agree withthis interpretation: the WPI generally treat presumptions that state a quantum ofproofas shifting to the opponent the burden ofproofas 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 onproduction ofcontrary evidence. To clear up any confusion, we turn to the statute's legislative history and to case law from otherjurisdictions to further clarify which type ofpresumption the

18Spivey v. City of Bellevue/Larson v. City of Bellevue No. 91680-2 legislature intended. A broader consideration ofthe policy behind RCW 51.32.185 shows that the legislature did not intendthe presumption to simply vanish on production ofsome rebuttal evidence. While we have not addressed how presumptions in statutes such as RCW 51.32.185 should be treated, otherjurisdictions 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 235 (quoting former N.H. Rev. Stat. Ann. § 281:2 (1988). The courtreviewedthe 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 ofthe plaintiff's heart disease. Id. at 236. It went on to note that applying the Thayertheory would not be consistent with the policy objective ofthe 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 otherjurisdictions have followed suit when interpreting similar statutes. See, e.g. Montgomery County Fire Bd. v.

19Spivey 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 ofAppeals, NewHampshire and other courts have also noted that analogous presumptions serve the purpose ofrelieving firefighters ofthe "nearly impossible burden ofproving firefighting actually caused their disease." 

### Wanstrom v. N.D. Workers Camp. Bureau, 2001 ND 21, 621 N.W.2d 864, 867 (2001). The NewHampshire Supreme Courtnoted that "[e]ven a slender amount ofrebuttal 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 ofactually

### provingthe specific cause ofan 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 ofqualifying 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

20Spivey 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 broadbecause itcovers conditions for which no correlation to fire fighting exposure is known"). Thus, the apparent purpose ofadding melanomato the list ofcovered diseases was to compensate firefighters even in circumstances whenthere may notbe 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 thathe or she suffers from a qualifying disease, RCW 51.32.185(1) imposes
on the employer the burden ofestablishing otherwise by a preponderance ofthe evidence. To be clear, this is a burden both toproduce contrary evidence and to persuade the finder offact otherwise. Thejury may be instructed regarding the presumption in RCW 51.32.185. The plain language ofthe statute, case law from

4 The legislature included a finding that a review offirefighter 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 ofthis bill have not been clearly validated by science and medicine"). 21Spivey v. City of Bellevue/Larson v. City of Bellevue No. 91680-2

otherjurisdictions, and the statute's broader social purpose indicate that RCW 51.32.185 is "stronger" than a Thayer presumption. We stress, however, thatthis standard does not impose onthe employer a burden ofproving the specific cause ofthe firefighter's melanoma. Rather, it requires that the employer provide evidence from which a reasonabletrier offact could conclude thatthe firefighter's disease was, more probably thannot, caused by nonoccupational factors. See RCW 51.32.185(1). Finally, we emphasize the
narrowness ofthis holding: While we apply the Morgantheory here, we decline to adopt a general rule. Rather, we limit our holding's applicability to this statute. C. RCW51.52.115 Does Not Flip the Burdens That Were Applicable at the DepartmentandBoardLevel The City and the Department next claimthatbecause RCW 51.52.115 sets forth the burden ofprooffor all appeals to superior court, it governs overthe provisions in RCW 51.32.185. The City goes onto argue thatthe trial court disregarded RCW 51.52.115 when it informed thejury aboutthe employer's burden ofproofat the board level. We disagree. We clarify thatRCW 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.

22Spivey 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 ofprooforpresumption 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 meetthe burden imposed under RCW 51.52.115justby showing thatthe 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 meetthe 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 ofthe 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 ofproofapplicable at department orboard proceedings. Rather, it imposes on the party challenging a board decision the burden to show that the Board's decision was incorrect by

23Spivey 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 thejuryto be informed ofthe 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 

### LaVera The City next argues that instructing thejury about the burden ofproofat the prior Boardproceeding 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 thejury's task by "conflating which party had the burden ofproofat each stage ofthe proceeding." Suppl. Br. of Pet'r City ofBellevue at 9; Suppl. Br. ofPet'rL&I at 20. We agree that thejury instruction added complexity to thejury's determination. Butthe instruction also presented thejury with an accurate statement ofthe law. InLa Vera, 

### another workers' compensation case, we stated that the question ofthe burden ofproofat the board level is immaterial in an appeal to superior court from a board's order. Id. 

### at 414-15. ButLa Vera 

### does not apply here. That
case was decided approximately 33 years prior to RCW 51.32.185's enactment, and thejury was deciding a different issue: whether the Department correctly reclassified the claimant from total to permanent partial disability. Id. 

### at 414.

24Spivey v. City of Bellevue/Larson v. City of Bellevue No. 91680-2

In the context ofRCW 51.32.185, the question ofthe burden ofproofatthe board level is material on appeal to superior court. Thejury cannot know whether the City rebutted the firefighter presumption ifthey are not informed ofits existence. We presume thatjurors 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. Italso explained that Larson bore the burden ofproving by a preponderance ofthe evidence thatthe decision was incorrect. The challenged paragraph does not ask thejuryto directly apply the firefighter presumption. Rather, it made thejury aware ofthe burden ofproofat 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 thejury may be informed ofthe presumption's existence. Accordingly,jury instruction 9 neither improperly informed thejury about the applicable burden ofproofat the trial court level nor unduly added "complexity and confusion" to thejury'stask. While thejury does not applythe firefighter presumption, thejurymay be informed that the presumption once existed.

25Spivey v. City of Bellevue/Larson v. City of Bellevue No. 91680-2

E. The Jury Instruction, When Readas a Whole, Was NotMisleading Finally, though it was properto inform thejury ofthe burden ofproofat the board level, the City argues thatjury instruction 9 was nevertheless misleading because, due to its syntax, it "saddled [the] City withthe double burden of disproving both elements ofan occupational disease claim." City ofBellevue Pet. for Review at 17. We disagree. As the Court ofAppeals noted, the instruction directly tracks the statutory definition. When read in context with the rest ofthe instruction, it paints an accurate picture ofthe applicable law. Jury instructions are proper when, read as a whole, they permitparties to argue their theories ofthe case, do notmislead thejury, and properly informthe jury ofthe applicable law. State v. Hutchinson, 135 Wn.2d 863, 885, 959 P.2d

1061 (1998). Even ifan instruction is misleading, it will notbe reversed unless it prejudices a party. Keller v. City of Spokane, 146 Wn.2d 237, 249, 44 P.3d 845 (2002). We presume thatjuries follow lawful instructions. Hizey, 119 Wn.2d at 270. The City argues thatthe paragraph quoted below was misleading because it erroneously led thejuryto believe that the City was required to rebutboth the "arising naturally" element andthe "proximate cause" elements in RCW 51.08.140: At the hearing before the Board ofIndustrial Insurance Appeals, the burden ofproofis onthe employer to rebut the presumption that 1)
26Spivey v. City of Bellevue/Larson v. City of Bellevue No. 91680-2
claimant's malignantmelanoma arose naturally out ofhis conditions of employment as a firefighter and, 2) his employment is a proximate cause ofhis malignant melanoma. CP (Larson) at 1768 (emphasis added). Specifically, the City argues thatthe use of the conjunction "and" between the two clauses required thejuryto analyze whetherthe City had rebutted both (notjust one) ofthe elements. The City has a point that a hypertechnical reading ofthe above paragraph could lead a reasonable mind to believe that the City had a "double burden" here. However, as the Court ofAppeals notes, it is also true thatthejury instruction directly tracks the applicable statutory definition. The IIA defines an occupational disease as one that "arises naturally and proximately out ofemployment." RCW 51.08.140. Thisjury 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 ofthe instruction clarifies thatthe findings and decision ofthe Board are presumed correct. CP (Larson) at 1768. It also states that the burden ofproofis on the firefighter to establish by a preponderance ofthe evidence that the decision is incorrect. Id. The instruction, when read as a whole, is accurate.

27Spivey v. City of Bellevue/Larson v. City of Bellevue No. 91680-2

F. RCW51.32.185(7) Allows a Firefighter To RecoverAttorneyFees Incurredat the BoardLevel 

## if He orShe 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 nothave been included in that award. Because the plain language ofthe statute authorizes attorney fees for "all reasonable costs ofthe appeal," we disagree. Whether a statute authorizes an award ofattorney fees is a question oflaw 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 orderthat all reasonable costs ofthe appeal, including attorney fees and witness fees, be paidto the firefighter
... by the opposing party." Next, RCW 51.32.185(7)(b) states that "[w]hen a

28Spivey 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 andthe final decision allows the claim for benefits, the court shall**o~der** that all reasonable costs ofthe 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 ofthe statute, only the Board, not the superior court, has the authority to award fees incurred before the Board. They assert that because Larson did notprevail before the Board, he was not entitled to recover attorney fees and costs at thatproceeding. 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 thathe 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 ofprotecting workers as opposedto 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."

29Spivey 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 ofthe appeal, including attorney fees and witness fees." Fees incurred before the Board are reasonable "costs ofappeal." 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 ofthe "costs ofappeal" are likely those that are incurred before the Board, notthe trial court. This result is also consistent with our obligation to construe the IIA liberally in favor ofthe 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 withoutthe incurring oflegal 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 BoeingAircraft Co. v. Dep'tof

30Spivey 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 Larsonprevailed at the Court ofAppeals 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 grantLarson'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 ofproving that firefighting caused his orher disease. Accordingly, we apply the firefighter presumption with a force that gives life to the legislature's words. We hold thatthe question whether the City rebutted the presumption in RCW 51.52.185 is one offact that may be submittedto thejury. In 

### Spivey, the trial court erred when it decided the issue as a matter oflaw. We also clarify that RCW 51.32.185 shifts both the burden ofproduction andthe burden of persuasion to the employer. Thus, in

### Larson,jury instruction 9 accurately stated the applicable law. Finally, we find that Larson is entitledto attorney fees for litigating his claim before the Board and before this court. We thus affirm the Court ofAppeals in

### Larson, butreverse the trial court's ruling in 

### Spivey and remand for proceedings in accordance with this decision.

31Spivey v. City of Bellevue/Larson v. City of Bellevue No. 91680-2

WE CONCUR:

32