IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

CALVIN JOHNSON, No. 53761-3-II

Respondent,

v.

PUBLISHED OPINION

DEPARTMENT OF LABOR AND 

INDUSTRIES,

Appellant.

SUTTON,J. — Firefighter Calvin Johnson appealed the Department of Labor and Industries’ 

(Department) denial of his claim to reopen his benefits under RCW 51.32.185.

1

Initially the 

Department denied his claim to reopen under RCW 51.32.185, the presumptive occupational 

disease statute. Johnson appealed to the Board of Industrial Insurance Appeals (Board). The 

Board reversed the denial and remanded to the Department to grant Johnson’s application to 

reopen his claim. On appeal of the Board’s decision, the superior court affirmed and this order 

was not appealed. 

On remand after the superior court’s order, Johnson requested reasonable attorney fees 

under RCW 51.32.185(9)(a), which the Board denied. The superior court then reversed the 

Board’s denial, and ordered the Department to pay Johnson’s reasonable attorney fees and costs

incurred before the Board. The Department appeals. 

 

1 The legislature amended this statute in 2019. LAWS OF 2019, ch. 133 § 1. Because these 

amendments are not relevant here, we cite to the current version of this statute.

Filed

Washington State

Court of Appeals

Division Two

February 9, 2021
No. 53761-3-II

2

We hold that under the facts presented and the plain language of RCW 51.32.185(9)(a),

Johnson’s claim to reopen was a claim for benefits entitling him to an award of attorney fees and 

costs incurred before the Board. Because Johnson is entitled to a fee award, we affirm the superior 

court’s order requiring the Department to pay Johnson reasonable attorney fees and costs incurred 

before the Board. We also award Johnson reasonable appellate fees and costs as the prevailing 

party in this appeal.

FACTS

I. BACKGROUND

On April 15, 2015, Johnson had a myocardial infarction, commonly referred to as a heart 

attack. He had experienced physical exertion and exposure to diesel fumes before the heart attack. 

After Johnson filed an accident report to open a claim, the Department applied to Johnson’s claim 

the presumption that heart problems arising 72 hours from exposure to fumes or 24 hours from 

exertion are occupational diseases. It then allowed Johnson’s claim under RCW 51.32.185. The 

Department provided treatment and other benefits to Johnson. The Department then closed 

Johnson’s claim on January 21, 2016, with no permanent or partial disability. 

After his claim closed, Johnson had persistent pain symptoms. At first, his doctors thought 

it was gall bladder pain, and Johnson underwent gall bladder surgery on January 29. AR at 485-

87. Johnson continued to have pain after the surgery so he went to the emergency room on 

February 3. The doctor at the emergency room determined that Johnson had findings consistent 

with a new myocardial event. 

According to Johnson’s doctor, the new event did not occur within 24 hours of exertion at 

work or within 72 hours of exposure to fumes. Johnson’s doctor believed the 2016 problem was 
No. 53761-3-II

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one that carried forth from his event in 2015, which the doctor did not think had ever resolved. In 

other words, the doctor believed that the 2016 problem arose from the 2015 event. 

II. JOHNSON’S CLAIM TO REOPEN

On December 13, 2016, Johnson applied to reopen his claim for benefits, arguing that his 

heart condition had worsened. The Department determined that Johnson’s worsening condition 

was not a proximate result of his occupational disease and denied the application to reopen. 

Johnson appealed the denial to the Board. 

The industrial administrative appeals judge (ALJ) considered whether the heart condition 

was an aggravation of the occupational disease for which Johnson’s original claim had been filed 

or a new event unrelated to the occupational disease. The ALJ issued a proposed decision and 

order finding that Johnson’s condition after claim closure in January 21, 2016, was an aggravation 

of the April 2015 event, noting that the “preponderance of the evidence was persuasive that Mr. 

Johnson’s occupational disease worsened and became aggravated after January 21, 2016.” 

Administrative Record (AR) at 212. 

The ALJ found that “[t]he objective evidence of worsening of a heart problem, allowed as 

an occupational disease, was aggravated, as shown by medical evidence, between the terminal 

dates.” AR at 213. The ALJ also found that Johnson had a “second set of stents and objective 

findings proximately caused by the occupational disease.” AR at 213. The ALJ further found that 

“Mr. Johnson’s heart problem, proximately caused by the occupational disease, objectively 

worsened between January 21, 2016 and May 26, 2017.” AR at 213. 
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The Board adopted the ALJ’s proposed decision and order, reversed the Department’s 

order denying Johnson’s application to reopen his claim, and remanded to the Department to grant 

his application to reopen the claim. 

III. JOHNSON’S MOTION FOR AN AWARD OF FEES AND THE BOARD’S ORDER

After the Board issued its decision and final order, Johnson filed a motion requesting an 

award of attorney fees and costs under RCW 51.32.185(9)(a). Johnson argued that this fee 

provision applied to the appeal denying his application to reopen his claim because his claim is a 

“claim for benefits” within the meaning of the statute. The Board denied Johnson’s motion, ruling 

that the fee provision only applies to the original claim for benefits, not to a reopened claim. 

IV. THE SUPERIOR COURT’S ORDER

Johnson appealed to the superior court. Johnson filed a motion for summary judgment to 

reverse the Board’s order and award him reasonable attorney fees and costs incurred before the 

Board. The superior court granted Johnson’s motion and ordered the Department to pay Johnson’s 

reasonable attorney fees and costs incurred before the Board. The Department appeals. 

ANALYSIS

I. STANDARD OF REVIEW

We are asked to interpret sections of the Industrial Insurance Act (IIA).2 Statutory 

interpretation is a question of law that we review de novo. Spivey v. City of Bellevue, 187 Wn.2d 

716, 726, 389 P.3d 504 (2017). “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 

 

2 Title 51 RCW.
No. 53761-3-II

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injured in their employment, with doubts resolved in favor of the worker.’” Spivey, 187 Wn.2d at 

726 (alteration in original) (quoting Dennis v. Dep’t of Labor & Indus., 109 Wn.2d 467, 470, 745 

P.2d 1295 (1987)). In an IIA appeal, we review the superior court’s decision, not the Board’s 

decision. RCW 51.52.140; Dep’t of Labor & Indus. v. Rowley, 185 Wn.2d 186, 200, 210, 378 

P.3d 139 (2016). 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).

We review a superior court’s order on summary judgment order de novo. Afoa v. Port of 

Seattle, 176 Wn.2d 460, 466, 296 P.3d 800 (2013). Summary judgment is appropriate when no 

genuine issue exists as to any material fact and the moving party is entitled to judgment as a matter 

of law. CR 56(c); Afoa, 176 Wn.2d at 466. Here, the parties disagree about the application of 

RCW 51.32.185(9)(a) to the undisputed facts; thus, our review is de novo. Bennerstrom v. Dep’t 

of Labor & Indus., 120 Wn. App. 853, 858, 86 P.3d 826 (2004). 

II. RCW 51.32.185(9)(a): FEE PROVISION

RCW 51.32.185(9)(a) provides: 

When a determination involving the presumption established in this section is 

appealed to the board of industrial insurance appeals and the final decision allows 

the claim for benefits, the board of industrial insurance appeals shall order that all 

reasonable costs of the appeal, including attorney fees and witness fees, be paid to 

the firefighter . . . or his or her beneficiary by the opposing party.

(Emphasis added.) 

The fundamental purpose in interpreting a statute is to give effect to the Legislature’s 

intent. Kovacs v. Dep’t of Labor & Indus., 186 Wn.2d 95, 98, 375 P.3d 669 (2016). If the statute’s 

meaning is plain, then we must give effect to that plain meaning as an expression of the 
No. 53761-3-II

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Legislature’s intent. Kovacs, 186 Wn.2d at 98. We discern plain meaning from the ordinary 

meaning of the language, the context of the statute in which that provision is found, related 

provisions, and the statutory scheme. Kovacs, 186 Wn.2d at 98. The meaning of a statute is 

determined by its words and by “‘all the terms and provisions of the act in relation to the subject 

of the legislation, the nature of the act, the general object to be accomplished and consequences 

that would result from construing the particular statute in one way or another.’” Burns v. City of 

Seattle, 161 Wn.2d 129, 146, 164 P.3d 475 (2007) (internal quotation marks omitted) (quoting 

State v. Krall, 125 Wn.2d 146, 148, 881 P.2d 1040 (1994)).

Under a narrow exception for firefighters, a firefighter is entitled to an award of attorney

fees and costs when (1) a “determination involving the presumption” has been appealed and (2) 

the Board has issued a “final decision [that] allows the claim for benefits.” RCW 51.32.185(9)(a).

The resolution of this case turns on the interpretation of these two phrases.

The Department argues that the phrase a “determination involving the presumption” means 

the original claim for benefits involving the presumption because it is at this stage that the 

Department makes a determination involving the presumption of an occupational disease for a 

firefighter. The Department then argues that the phrase “the final decision allows the claim for 

benefits” relates only to the original claim for benefits, not a claim to reopen. We disagree with 

the Department’s strained interpretation of the plain language of the statute.
No. 53761-3-II

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A. THE APPLICATION TO REOPEN THE CLAIM INVOLVED THE PRESUMPTION IN RCW 51.32.185

1. Claims “Involving the Presumption”

The Department argues that RCW 51.32.185(9)(a) applies only when the Department is 

determining whether a presumption applies in an original claim for benefits. We disagree as their 

interpretation is contrary to the plain language of the statute. 

At oral argument, the Department agreed that RCW 51.32.185(9)(a) is clear and not 

ambiguous, so we do a plain language analysis. But the Department’s argument that RCW 

51.32.185(9)(a) applies only when the Department is determining whether a presumption applies 

in an original claim for benefits is contrary to the plain language of the statute. 

RCW 51.32.185(9)(a) does not use the term “original claim,” “initial claim,” or “claim for 

occupational disease” or any other term limiting its application only to the original claim. Rather, 

RCW 51.32.185(9)(a) uses the term “the claim for benefits.” It is well-established that an 

application to reopen is a claim for benefits. See Singletary v. Manor Healthcare Corp., 166 Wn. 

App. 774, 783, 271 P.3d 356 (2012) (“The Department enjoys broad subject matter jurisdiction to 

adjudicate all claims for workers’ compensation benefits. The Department’s broad subject matter 

jurisdiction to adjudicate all workers’ compensation claims includes applications to reopen a 

closed claim.” (citation omitted)).

Nowhere in RCW 51.32.185(9)(a) did the legislature restrict its application to only an 

original claim alleging an occupational disease. To state otherwise is to inject language into the 

statute. It is not the role of the judiciary to do so. Northwest Animal Rights Network v. State, 158 

Wn. App. 237, 245, 242 P.3d 891 (2010).
No. 53761-3-II

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Also, the legislature did not use the phrase “determination of the presumption,” which 

would be necessary for the Department’s interpretation. Rather, the legislature used the broad 

language of a “determination involving the presumption.” Thus, contrary to interpreting the plain 

language of the statute, the Department’s argument attempts to change the language of the statute.

Here, the Department is required to make a determination of whether Johnson’s claim to 

reopen should be allowed. That determination requires an inquiry into whether Johnson’s current 

heart condition is or is not an aggravation of his occupational disease to which the presumption 

applied. Clearly, the Department’s determination on Johnson’s reopening claim is a 

“determination involving the presumption.”

2. The Final Decision Allowing the Claim for Benefits

The Department argues that RCW 51.32.185(9)(a) applies only to the final decision on the 

original claim for benefits. But the plain language of RCW 51.32.185(9)(a) only requires that “the 

final decision allows the claim for benefits.” The statute says “the claim for benefits,” not “the 

original claim for benefits,” nor “the initial claim for benefits.” The Department’s interpretation

again reads words into the statute.

Here, we have a final Board decision and that decision allows Johnson’s claim for benefits 

based on his application to reopen his claim. Under the plain language of the statute, the Board’s 

decision on Johnson’s application to reopen his claim is the “final decision [that] allows the claim 

for benefits” under RCW 51.32.185(9)(a).

B. ATTORNEY FEE AWARD

In Spivey, our Supreme Court noted that the fee subsections of RCW 51.32.185 specifically 

address attorney fees and costs in “cases involving” the firefighter presumption. 187 Wn.2d at 
No. 53761-3-II

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740. This holding is consistent with legislature’s intended purpose of RCW 51.32.185, which is 

to relieve a firefighter of having to prove firefighting caused his or her occupational disease. 

Spivey, 187 Wn.2d at 741-42. Attorney fees and costs are awarded in such cases to guarantee the 

injured worker adequate legal representation in presenting his or her claim on appeal without a 

diminution of any award. Spivey, 187 Wn.2d at 741. The presumptive disease statute reflects a 

strong social policy that all doubts resolve in the injured worker’s favor. Spivey, 187 Wn.2d at 

741.

The Department’s strained interpretation is not based on the plain language of the statute 

nor is it consistent with the legislative intent. To refuse to grant Johnson his reasonable attorney 

fees and costs would result in an inadequate recovery for him. See Spivey, 187 Wn.2d at 741. 

Because the reopened claim “involves the presumption” and there is a “final decision” allowing 

“the claim for benefits,” we hold that Johnson is entitled to an award of reasonable attorney fees

and costs under RCW 51.32.185(9)(a). 

Accordingly, we hold that under the facts presented and the plain language of RCW 

51.32.185(9)(a), Johnson is entitled to an award of reasonable attorney fees and costs incurred,

and we affirm the superior court’s order requiring the Department to pay Johnson’s reasonable 

attorney fees and costs.

C. ATTORNEY FEES AND COSTS ON APPEAL

Johnson requests an award of reasonable attorney fees and costs on appeal under RAP 18.1, 

RCW 51.52.130, and RCW 51.32.185(9)(b). Under RAP 18.1, the prevailing party is entitled to 

appellate attorney fees and costs when applicable law authorizes the award. McGuire v. Bates, 
No. 53761-3-II

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169 Wn.2d 185, 191, 234 P.3d 205 (2010). Because Johnson prevails on appeal, we grant his 

request and award him reasonable appellate attorney fees and costs.

CONCLUSION

We hold that under the facts presented and the plain language of RCW 51.32.185(9)(a), 

Johnson’s claim to reopen was a claim for benefits entitling him to an award of attorney fees and 

costs incurred before the Board. Because Johnson is entitled to a fee award, we affirm the superior 

court’s order requiring the Department to pay Johnson reasonable attorney fees and costs incurred 

before the Board. We also award Johnson reasonable appellate fees and costs as the prevailing 

party in this appeal.

SUTTON, J.

We concur:

LEE, C.J.

CRUSER, J.