iQiS JUL 13 A;i IQ; So

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

WILFRED A. LARSON,

Respondent,

v.

CITY OF BELLEVUE,

Appellant,

DEPARTMENT OF LABOR

AND INDUSTRIES,

Defendant.

No. 71101-6-1

DIVISION ONE

PUBLISHED OPINION

FILED: July 13, 2015

Leach, J. — The city of Bellevue (City) appeals the superior court's

judgment reversing the Board of Industrial Insurance Appeals (Board). The

Board reversed a Department of Labor and Industries (Department) award of

benefits to firefighter Wilfred Larson under RCW 51.32.185 for his malignant

melanoma, a form of skin cancer. The City challenges the trial court's jury

instructions, its rulings about expert testimony, and the sufficiency of the

evidence to support the jury's verdict. It also claims that the trial court should not

have awarded Larson attorney fees.

Because the trial court's instructions correctly allocated the burdens of

production and persuasion as required by RCW 52.32.185(1)'s rebuttable
NO. 71101-6-1/2

presumption and otherwise correctly stated the law, did not mislead the jury, and

allowed each party to argue its case, we reject the City's instructional error

claims. Because the City fails to demonstrate any abuse of discretion in the trial

court's challenged evidentiary rulings, we affirm those rulings. And because

RCW 51.32.185(7)(b) provides for a prevailing claimant's recovery of "all

reasonable costs of the appeal" to "any court," the court properly awarded Larson

attorney fees incurred at both the trial and Board levels.

FACTS

In 2009, Wilfred Larson was diagnosed with malignant melanoma on his

low back. Larson worked as a firefighter and emergency medical technician for

the City since 1979. The Department allowed his claim for benefits, finding his

melanoma to be an occupational disease under RCW 51.32.185(1). The City

appealed to the Board, and an industrial appeals judge dismissed Larson's claim

on the City's summary judgment motion. Larson sought review of this decision

by the Board, which reversed the judge and remanded for a hearing. After a

hearing, the judge issued a proposed decision and order finding that "Wilfred

Larson's condition, diagnosed as melanoma, did not arise naturally and

proximately out of the distinctive conditions of his employment with the City of

Bellevue Fire Department." The Board denied Larson's petition for review, and

the judge's decision became a final decision and order.
NO. 71101-6-1/3

Larson appealed to superior court. The testimony in the Board record not

stricken by the trial court was read to a jury. Larson presented the testimony of

his witnesses first.

Larson testified about exposure at work to smoke, fumes, and toxic

substances until 2010, when he was transferred to the training division. On

cross-examination, he acknowledged that he engaged in outdoor activities in the

summer and sometimes would not wear a shirt. He testified that he occasionally

tanned in a tanning bed to prepare for summer trips in order to avoid sunburn.

The City elicited testimony from Larson's wife that the Larson family took yearly

trips to Lake Chelan in the summers, that her husband would get a little pink in

the sun, and that he had freckles, green eyes, and light brown hair.

Over objection, the jury heard testimony from Larson's expertwitness, Dr.

Kenneth Coleman, who is board-certified in family practice. He testified that

Larson's firefighter work probably was one cause of his malignant melanoma.

The jury then was read Board proceeding testimony from the City's

witnesses. Dr. Andy Chien, a dermatologist and melanoma expert, testified that

ultraviolet (UV) light exposure and genetic factors cause melanoma and that

those with fair skin and red- or blonde-colored hair and light eyes have the

highest risk for developing melanoma. He testified that UV light from sun and

tanning bedsis a known carcinogen for the skin. Dr. Chien testified that for male

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patients melanoma most often occurs on the low back. He testified that sun

exposure on cloudy days, intermittent high-intensity sun exposure, or sun

exposure without a blistering sunburn can lead to melanoma. He also testified

that Larson probably developed melanoma from recreational UV exposure and

genetic risk factors. He testified that he has not seen data showing an increased

occupational risk of melanoma for firefighters.

Dr. Noel Weiss, an epidemiologist, testified about his familiarity with

relevant medical literature addressing any connection between firefighters'

occupational exposure and melanoma. He testified that while these studies

showed higher incidences ofskin cancer in firefighters, the results are unreliable

to show that firefighters experience higher incidence of melanoma than the

general population.

Dr. Sarah Dick, a dermatologist, treated Larson's melanoma. She testified

that it was her "highest suspicion" that UV exposure caused Larson's melanoma.

She testified that as a fair-skinned redhead, Larson belonged to a population

having a higher risk of melanoma. She opined that if he had not worked as a

firefighter, he could have developed melanoma. She also testified that she never

advised him to stop working as a firefighter.

The Board and the trial court both excluded, as cumulative, testimony from

Dr. John Hackett, a dermatologist who had examined Larson for the City.

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The City, at the end of the testimony, asked the trial court to rule, as a

matter of law, that the City had established by a preponderance ofthe evidence

that Larson's work as a firefighter was not a cause of his melanoma. According

to the City, this would leave one issue for the jury to decide: did Larson prove

that his melanoma was an occupational disease? The trial court denied the

City's motion.

Over the objection of the City, the trial court submitted to the jury this

special verdict form:

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 Plaintiff's

malignant melanoma was an occupational disease?

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

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

answer any further questions. If you answered "yes" 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")

The jury answered "No" to the first question and did not proceed further.

The trial court entered a judgment in Larson's favor that also awarded Larson

attorney fees and costs incurred before the Board and the court. The City
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appeals. The Department has filed a respondent's brief supporting the City's

position on the operation of RCW 51.32.185(1).

STANDARD OF REVIEW

In appeals under RCW 51.52.110, this court reviews the trial court's

factual findings for substantial evidence and if the court's conclusions of law flow

from those findings.1 At the superior court, the Board's decision is prima facie

correct. To prevail in the superior court, the appellant must establish otherwise

by a preponderance of the evidence.2 This court reviews the adequacy of jury

instructions de novo.3 Courts liberally construe the Industrial Insurance Act, Title

51 RCW, resolving doubts in favor of the worker.4

ANALYSIS

This case presents six issues for this court to resolve:

1. What are the parties' burdens of production and persuasion when the

rebuttable presumption of RCW 51.32.185(1) applies?

2. Did the trial court correctly instruct the jury about RCW 51.32.185(1)?

3. Does substantial evidence support the jury's finding that the Board

incorrectly decided that the City had rebutted by a preponderance of

1 Ruse v. Dep't of Labor & Indus., 138 Wn.2d 1, 5-6, 977 P.2d 570 (1999).

2 Ruse, 138Wn.2dat5-6.

3 City of Bellevue v. Raum, 171 Wn. App. 124, 142, 286 P.3d 695 (2012),

review denied, 176 Wn.2d 1024 (2013).

4 Dennis v. Deo't of Labor & Indus.. 109 Wn.2d 467, 470, 745 P.2d 1295

(1987).

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NO. 71101-6-1/7

the evidence the presumption that Larson's melanoma was an

occupational disease?

4. Did the trial court abuse its discretion when admitting and excluding

expert opinion testimony?

5. Did the trial court err by refusing to instruct the jury that it should give

the testimony of Larson's treating physician, Sarah Dick, MD, special

consideration?

6. Does RCW 51.32.185(7)(b) authorize an award of attorney fees and

costs incurred before the Board to a claimant who loses before the

Board but prevails in superior court?

We address these issues in the order listed.

RCW 51.32.185(1) Presumption

We must decide how the presumption created by RCW 51.32.185(1)

affects the burden of proof in this case. The burden of proof has two parts: a

burden of production and a burden of persuasion.5 A party with the burden of

production on a particular fact in issue must produce sufficient evidence to

warrant submitting that issue to the trier offact.6 Whether a party has produced a

5 Fed. Signal Corp. v. Safety Factors. Inc., 125 Wn.2d 413, 433, 886 P.2d

172(1994).

6 State v. Paul, 64 Wn. App. 801, 806, 828 P.2d 594 (1992).

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NO. 71101-6-1/8

sufficient quantity of evidence to submit the factual issue to the trier of fact

presents a legal question to be decided by the court.7

A party with the burden of persuasion must convince the trier of fact that

the contested fact is true to a certain degree, using one of these three levels of

persuasion: (1) beyond a reasonable doubt; (2) clear, cogent, and convincing; or

(3) preponderance of the evidence.8 It comes into play when each party has met

its burden of production and all ofthe evidence has been introduced.9 It requires

that the trier of fact weigh the credibility of witnesses and the persuasiveness of

the evidence.

RCW 51.32.185(1) contains a presumption that applies when a firefighter

alleges certain occupational diseases:

In the case of firefighters . . . , there shall exist a prima facie

presumption that: (a) Respiratory disease; (b) any heart problems,

experienced within seventy-two hours of exposure to smoke,

fumes, or toxic substances, or experienced within twenty-four hours

of strenuous physical exertion due to firefighting activities; (c)

cancer; and (d) infectious diseases are occupational diseases

under RCW 51.08.140.

This statute also provides a way to rebut this presumption: "This

presumption of occupational disease may be rebutted by a preponderance ofthe

evidence. Such evidence may include, but is not limited to, use of tobacco

7 Paul, 64 Wn. App. at 806.

8 Paul, 64 Wn. App. at 807.

9 Fed. Signal Corp., 125 Wn.2d at 433.

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NO. 71101-6-1/9

products, physical fitness and weight, lifestyle, hereditary factors, and exposure

from other employment or nonemployment activities."

The parties disagree about how this presumption works. Although they do

not identify them by name, each advocates a version of the two principal

competing theories of presumptions, the Thayer theory and the Morgan theory.

"Under the Thayer theory, a presumption places the burden of production of

evidence on the party against whom it operates but disappears if that party

produces contrary evidence."10 Under the Morgan theory, a presumption shifts

the burden of proof as to the presumed fact.11 Under the Morgan theory, a

presumption does not disappear upon the production of contrary evidence but

continues throughout the trial, and the court instructs the jury that the party

against whom the presumption operates has the burden of proving that the

presumed fact is not true or does not exist.12

The City claims that RCW 51.32.185(1) creates a Thayer-like

presumption. The City contends that if a firefighter shows that he has a

qualifying disease, in this case melanoma, the presumption relieves him from

presenting competent medical evidence relating that melanoma to his work

10 In re Estate of Langeland, 177 Wn. App. 315, 321 n.7, 312 P.3d 657

(2013), review denied, 180 Wn.2d 1009 (2014).

11 Langeland. 177 Wn. App. at 321 n.8.

12 5 Karl B. Tegland, Washington Practice: Evidence Law and

Practice § 301.15, at 241-42 (5th ed. 2007).

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NO. 71101-6-1/10

duties to establish that it is an occupational disease. Instead, the condition is

presumed to be an occupational disease, and at this point in the production of

evidence, the firefighter has proved a prima facie case for relief.

According to the City, RCW 51.32.185(1) then shifts the burden of

production to the employer to show by a preponderance of the evidence that the

melanoma is not an occupational disease. The City contends that whether the

employer has met this burden presents a question of law. If the Board decides

that the employer has met this burden of production, the presumption

disappears. The firefighter continues to have a burden of persuasion that

requires him to establish by a preponderance of the evidence that his condition is

an occupational disease, now without the benefit of the statutory presumption.

Under the City's interpretation of RCW 51.32.185(1), because the Board

found that Larson's melanoma "did not arise naturally and proximately out of the

distinctive conditions of his employment," the City claims that the Board must first

have decided as a matter of law that the City rebutted the occupational disease

presumption by a preponderance of the evidence. Otherwise, the Board would

never have made the quoted factual finding. Therefore, the City contends that

when Larson appealed to the superior court, the court should have reviewed the

Board's legal conclusion that the City had rebutted the presumption as a question

of law to be decided by the court and should not have submitted it to the jury to

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NO. 71101-6-1/11

decide as a question offact. Instead, the trial court should have submitted to the

jury as a question offact whether Larson had established by a preponderance of

the evidence that his melanoma was an occupational disease.

Larson asserts that the Morgan theory applies. Larson claims that the

RCW 51.32.185(1) presumption shifts to the employer both the burden of

production and the burden of persuasion. Once a firefighter shows that he

suffers from a qualifying disease, RCW 51.32.185(1) establishes a presumption

that the condition is an occupational disease and imposes upon the employer the

burden of producing evidence sufficient to establish otherwise by a

preponderance of the evidence. Larson contends that whether the employer has

produced this preponderance of evidence presents a question of fact. Therefore,

Larson asserts that the Board weighed the conflicting evidence and answered a

question of fact when it decided that the City had rebutted the presumption.

When Larson appealed to the superior court, he was entitled to have a jury

decide this question of fact.

Unlike many states, Washington has not adopted an analogue to Fed. R.

Evid. 301, addressing the use of presumptions.13 "Washington cases apply the

Thayer theory to some, but not all, presumptions and provide no general rule

about when it applies."14 Other Washington cases identify presumptions that

13 5 Tegland, §301.8, at 220.

14 Langeland, 177 Wn. App. at 322.

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NO. 71101-6-1/12

shift the burden of proof.15 The Washington Pattern Jury Instructions recognize

Washington cases treat different presumptions differently.16 Washington case

law, the text of RCW 51.32.185(1), the public policy motivating the legislature to

adopt this statute, and decisions of other jurisdictions convince us that the trial

court properly allowed the jury to decide if the City had rebutted the statutory

presumption.

The Washington Supreme Court has approved allowing a jury to decide if

the record includes sufficient evidence to overcome a presumption.17 In Luna de

la Peunte v. Seattle Times,18 the court considered an appeal from a trial court's

submission to a jury whether the defendant in a libel action had rebutted a

presumption that the reputation and character of the plaintiff was good. It

rejected this challenge, reasoning as follows:

The difficulty, however, lies not so much with the statement

of law as with its application. When and by whom is it to be said

that the evidence is sufficient to rebut a presumption? In some

cases, doubtless, it may be said by the court, as a matter of law. In

other cases, it may very properly be left to the jury to say. Simply

because some witness takes the stand and swears to facts which, if

true, would rebut the presumption, does not require the court to

hold, as a matter of law, that the presumption has been rebutted.

15 Langeland, 177 Wn. App. at 322.

16 6 Washington Practice: Washington Pattern Jury Instructions:

Civil 24.03, cmt. at 268-69 (6th ed. 2012) (WPI).

17 Luna de la Peunte v. Seattle Times. 186 Wash. 618, 626-28, 59 P.2d

753 (1936); Karp v. Herder, 181 Wash. 583, 590, 44 P.2d 808 (1935); Steele v.

N. Pac. Rv.. 21 Wash. 287,302-03, 57 P. 820 (1899).

18 186 Wash. 618, 626-28, 59 P.2d 753 (1936).

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NO. 71101-6-1/13

The sum and substance of all that has been written on the

force and effect of presumptions is that, in the first instance, it is for

the court to say whether or not the evidence is sufficient, as a

matter of law, to overcome a presumption. If not, the question may

be left to the jury, under properinstruction.[19]

Thus, unless the trial court could rule as a matter of law that the City had proved

by a preponderance of the evidence that Larson's melanoma was not an

occupational disease, it properly submitted this question to the jury. To make

this ruling, CR 50(a)(1)20 requires that "there is no legally sufficient evidentiary

basis for a reasonable jury to find or to have found" for Larson on the issue.

Because, as we discuss below, sufficient evidence supports the jury's verdict in

favor of Larson, the record does not meet the CR 50(a)(1) standard. As a result,

we do not address whether a court could ever decide as a matter of law that the

evidence produced rebutted the presumption.

19 Luna de la Peunte. 186 Wash, at 627-28.

20 Nature and Effect of Motion. If, during a trial by jury, a party has

been fully heard with respect to an issue and there is no legally

sufficient evidentiary basis for a reasonable jury to find or have

found for that party with respect to that issue, the court may grant

a motion for judgment as a matter of law against the party on any

claim, counterclaim, cross claim, or third party claim that cannot

under the controlling law be maintained without a favorable finding

on that issue. Such a motion shall specify the judgment sought

and the law and the facts on which the moving party is entitled to

the judgment. A motion for judgment as a matter of law which is

notgranted is not a waiver oftrial by jury even though all parties to

the action have moved for judgment as a matter of law.

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NO. 71101-6-1/14

The text of RCW 51.32.185(1) supports the conclusion that this statute

shifts both the burden of persuasion and production. RCW 51.32.185(1) states

that the "presumption of occupational disease may be rebutted by a

preponderance of the evidence." Although the statute does not define

"preponderance of the evidence," WPI 21.01 does:

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 on the question], that the proposition

on which that party has the burden of proof is more probably true

than not true.

Neither party suggests a different definition, nor are we aware of any

reason to use a different one. Thus, the statute requires a quality of proof to

rebut the presumption and a weighing of all the evidence to determine if the

evidence produced achieves the necessary level of persuasiveness. This

presents a question of fact requiring an evaluation of the credibility of witnesses

and the persuasiveness of evidence. Logically, this presumption shifts to the City

the burden of proof as to the presumed fact of occupational disease.21

Division Two of this court appears to have reached this conclusion in

Gorre v. City of Tacoma:22 "[T]he burden shifts to the employer to rebut the

21 5 Tegland, §301.15, at 246.

22 180 Wn. App. 729, 758, 324 P.3d 716 (2014), review granted, 181

Wn.2d 1033 (2015).

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NO. 71101-6-1/15

presumption by a preponderance of the evidence by showing that the origin or

aggravator of the fire fighter's disease did not arise naturally and proximately out

of his employment."23 The City must present evidence to "show that his diseases

did not arise from his fire fighter employment."24

A leading commentator on Washington evidence law suggests that a

presumption written in terms of the level of proof required to overcome it follows

the Morgan theory and that the WPI adopts this view.25 A note for use of one

pattern instruction supports his view. WPI 24.05 provides, "[If you find] [Because]

(insert the basic facts), the law presumes (insert the presumed fact), and you are bound

by that presumption unless you find [by a preponderance of the evidence] [by

clear, cogent, and convincing evidence] that (insert the contrary of presumption)." This

pattern instruction parallels the presumption and rebuttal provision of RCW

51.32.185(1). The note on use for this instruction states,

This instruction is proper only for rebuttable mandatory

presumptions that affect the burden of proof, when the presumed

fact has been challenged and constitutes a jury question. It should

therefore not be given ifthe court can rule on the presumed fact or

23 The Department argues that the trial court impermissibly allowed Larson

to present his evidence prior to the City and that this prejudiced the City in the

jury's determination. But at trial Larson had the burden to prove either the Board

incorrectly decided the City met its burden or, if not, that Larson could show his

melanoma was an occupational disease. Because Larson was entitled to the

"full opportunity to be heard" under RCW 51.52.115, the court properly allowed

him to proceed first.

24 Gorre. 180 Wn. App. at 758 n.37.

25 5 Tegland, § 301.15, at 242-43.

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NO. 71101-6-1/16

facts as a matter of law. The bracketed phrase "if you find" should

be used if the basic facts are also a jury question. The bracketed

word "because" should be used if the basic facts are admitted or

can otherwise be determined to exist as a matter of law. In

applying this instruction, the user should pick out the appropriate

burden of proof necessary to rebut the presumption and then give a

definition of that burden.

This note on use suggests that the Washington Supreme Court Committee on

Jury Instructions would consider the presumption of RCW 51.32.185(1) as a

rebuttable presumption that affected the burden of proof.

The Morgan theory of presumptions provides that when a presumption

reflects a strong social policy, the presumption should shift the burden of

persuasion.26 For this reason, a number ofjurisdictions have applied the Morgan

theory to statutessubstantively similar to RCW 51.32.185(1 ).27 For example, the

New Hampshire Supreme Court decided the apparent purpose of an analogous

New Hampshire statute was to implement a social policy of providing

compensation to firefighters suffering identified diseases where the medical

evidence fails to establish the cause of the disease.28 To give full effect to the

legislative intent, the court applied the statutory presumption "with a force

26 Edmund M. Morgan, Some Observations Concerning Presumptions, 44

Harv. L. Rev. 906, 930 (1931).

27 Cunningham v. City of Manchester Fire Dep't. 129 N.H. 232, 525 A.2d

714 (1987); Montgomery County Fire Bd. v. Fisher. 298 Md. 245, 468 A.2d 625,

631 (1983); Bvous v. Mo. Local Gov't Emps. Ret. Svs. Bd. of Trs., 157 S.W.3d

740, 746 (Mo. Ct. App. 2005); City of Littleton v. Indus. Claim Appeals Office of

State. No. 10CA1494, 2012 WL 5360912 (Colo. App. Nov. 1, 2012), cert

granted. Oct. 15,2013.

28 Cunningham. 129 N.H. at 236-37.

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NO. 71101-6-1/17

consistent with the legislative concerns underlying the presumption."29 The court

decided that the Thayer theory would be inconsistent with the policy objective of

the presumption and applied the Morgan theory.30 The North Dakota Supreme

Court has described the purpose of North Dakota's analogous statute as

relieving firefighters of the nearly impossible burden of proving firefighting

actually caused their disease.31

The Washington Legislature first adopted RCW 51.32.185 for similar

reasons:

The legislature finds that the employment of fire fighters exposes

them to smoke, fumes, and toxic or chemical substances. The

legislature recognizes that fire fighters as a class have a higher rate

of respiratory disease than the general public. The legislature

therefore finds that respiratory disease should be presumed to be

occupational^ related for industrial insurance purposes for fire

fighters.!32'

When the legislature amended RCW 51.32.185 in 2002 to add a presumption for

melanoma, it made a finding that "[a] 1990 review of fire fighter epidemiology

calculated a statistically significant risk for melanoma among fire fighters."33 Our

governor vetoed the bill section containing this finding.34 But this legislative

29 Cunningham, 129 N.H. at 237.

30 Cunningham. 129 N.H. at 237.

31 Wanstrom v. N.D. Workers Comp. Bureau, 2001 ND 21, 1f7, 621

N.W.2d 864, 867.

32Washington Laws, 1987, ch. 515, § 1.

33 Washington Laws, 2002, ch. 337, § 1(e).

34 Washington Laws, 2002, ch. 337, note: governor's explanation of

partial veto.

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NO. 71101-6-1/18

history makes clear the social purpose of the presumption. We agree with the

New Hampshire Supreme Court's conclusion that the Morgan theory should be

applied to the presumption to give itthe force intended by the legislature.

The City and Department cite employment discrimination cases to argue

that once Larson established his prima facie case, the City only had a burden of

production at this stage, an issue of law not reviewable by a jury. We do not find

this analogy of employment discrimination procedure to the operation of a

statutory presumption persuasive. It ignores Washington case law cited above

and the text of RCW 51.32.185(1).

In summary, once a firefighter proves that he suffers from a qualifying

disease described in RCW 51.32.185(1), this statute's presumption shifts the

burdens of production and persuasion to the entity contesting an award of

industrial insurance benefits. The trial court did not err in allowing the jury to

decide if the City had rebutted this presumption. Our conclusion comports with a

liberal construction of the Industrial Insurance Act in favor of the worker.35

Jury Instructions about RCW 51.32.185(1)

The City contends that jury instruction 9 misstated the proof required to

rebut RCW 51.32.185(1 )'s presumption. It claims that the third paragraph of this

instruction told the jury that the City had to rebut "two elements" of the definition

35 Dennis. 109 Wn.2d at 470.

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NO. 71101-6-1/19

of occupational disease to rebut the statutory presumption when it only had to

rebut one "element." The City argues that the special verdict form exacerbated

this erroneous statement of the law because it required the jury to reference the

flawed instruction and contained the word "presumptions," indicating to the jury

that more than one existed. It argues this prejudiced the City's ability to argue its

case theory. Larson argues that the City improperly objected to the claim

precluding this court's review and, regardless, that the instruction correctly stated

the law.

Instruction 9 states,

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 on the question, that the proposition

on which that party has the burden of proof is more probably true

than not true.

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Sufficient instructions permit parties to argue their case theories, do not

mislead the jury, and, when read as a whole, accurately inform the jury of

applicable law.36

RCW 51.08.140 defines "occupational disease": "'Occupational disease'

means such disease or infection as arises naturally and proximately out of

employment under the mandatory or elective adoption provisions of this title."

Instruction 9 breaks this definition into two parts—that malignant melanoma

arose naturally out of conditions of employment and that employment was a

proximate cause of the melanoma. It directly tracks the statutory definition. We

agree that the City needed to disprove only one of the two parts to rebut RCW

51.32.185(1)'s presumption. Nothing in instruction 9 contradicts this. And,

contrary to the City's assertion, the special verdict form did not contain the word

"presumptions" or place an improper additional burden of proof on the City.

Thus, we conclude that instruction 9 and the special verdict form correctly stated

the law, did not mislead the jury, and allowed the City to argue its theory of the

case.

Sufficiency of the Evidence

The City argues that substantial evidence did not support the jury's finding

that the Board incorrectly decided that the City rebutted the presumption that

36 Brown v. Spokane County Fire Prot. Dist. No. 1. 100 Wn.2d 188, 194,

668P.2d571 (1983).

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Larson's melanoma was an occupational disease. A court will not overturn a jury

verdict if substantial evidence exists to support it.37 "Under the substantial

evidence standard, there must be a sufficient quantum of evidence in the record

to persuade a reasonable person that the declared premise istrue."38

We must decide if Larson presented substantial evidence that rebuts the

presumption that the Board correctly decided the case.39 The Board heard

testimony from three of the City's medical expert witnesses. Through these

witnesses, the City elicited expert and lay testimony showing that UV rays from

the sun and tanning beds as well as genetic factors can cause melanoma. This

testimony suggested that Larson had a higher risk for melanoma for reasons not

related to his occupation. Dr. Chien, in particular, identified recreational UV

exposure and genetic risk factors as the cause of melanoma diagnosed in a

firefighter with Larson's history. Epidemiologist Dr. Weiss, testifying for the City,

opined that in his professional opinion the studies showing firefighters experience

higher incidence of melanoma produced unreliable results. And Dr. Dick,

Larson's treating dermatologist, testified that it was her "highest suspicion" that

37 Roellich v. Dep't of Labor & Indus., 20 Wn.2d 674, 680, 148 P.2d 957

(1944).

38 Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wn.2d 169, 176, 4

P.3d 123(2000).

39 See Wenatchee Sportsmen Ass'n. 141 Wn.2d at 176.

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NO. 71101-6-1/22

UV exposure caused his melanoma. She testified that Larson could have

developed melanoma even if he had not been a firefighter.

But Larson points to evidence in the record demonstrating that a

reasonable juror could find flaws in the City's case. Dr. Chien testified, for

example, that it is unknown what quantity or dose of UV exposure one requires to

develop melanoma and that the exact cause of melanoma can never be

determined. He testified on cross-examination that "if you look at whether or not

asking about someone's chronic sun exposure can predict their risk for

melanoma, the studies so far have said that it cannot." Larson elicited testimony

to show the jury that Dr. Chien does not know the time or circumstance when a

person becomes positive for melanoma and that he had not examined Larson.

Dr. Chien acknowledged that he was not familiar enough with what a firefighter

does to know if he or she is exposed to ionizing radiation, a form of UV exposure

which he testified can be a cause of melanoma.

Larson asked Dr. Weiss, the City's witness epidemiologist, about a 2007

"Registry Based Case Control Study of Cancer in California Firefighters." Dr.

Weiss testified, "In this study, they did find a suggestion of [a] 50 percent

increase in risk, of melanoma among firefighters." He identified a potential

design flaw, testifying that the study's "results are helpful" because the study

added to all of the studies but that it is one small piece of evidence. When asked

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NO. 71101-6-1/23

about a bias for UV exposure in this study, Weiss testified that he believes that

bias "would not be terribly large." He testified, "[L]et's say all of the studies

collectively found a 50 percent increase. I wouldn't think that the potential

difference in sun exposure would be responsible for all of that difference."

Dr. Dick testified that to her knowledge there is no way to look at a biopsy

or the melanoma and determine what caused it and that there can be more than

one cause to one's malignant melanoma. When the City asked her medical

opinion about whether Larson would have developed skin cancer if he didn't work

as a firefighter, she answered, "At this point I don't know if I can give a medical

opinion because I don't know enough details of what he does at work." When

pressed, she continued, "[N]ot knowing his exposure to UV during his work,

assuming he's covered at work, then do I think—do I think he would have gotten

skin cancer if he wasn't a firefighter? Yeah, he could have."

While the City elicited expert testimony to highlight Larson's

nonoccupational risks for developing melanoma, a jury could reasonably

conclude from the testimony of these witnesses that the City had not disproved

firefighting as a more probable than not cause for Larson's melanoma. Thus,

substantial evidence existed to support a finding that the Board incorrectly

concluded the City rebutted its presumption.

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NO. 71101-6-1/24

Expert Testimony Decisions

This court reviews a trial court's admission or rejection of expert testimony

for an abuse of discretion, looking to see if the court made a manifestly

unreasonable decision or based it on untenable grounds.40

The City challenges the trial court's admission of expert testimony from

Larson's expert, Dr. Coleman, and the court's rejection of testimony by its own

expert, Dr. Hackett. The City claims Dr. Coleman's testimony did not qualify him

as an expert under ER 702 and provided untrustworthy and unreliable evidence

that allowed the jury to speculate about medical causation. Alternatively, it

argues that the trial court should have stricken portions of his testimony because

it responded to Larson's leading questions and constituted an improper use of

learned treatises.

ER 702 governs testimony by experts: "If scientific, technical, or other

specialized knowledge will assist the trier of fact to understand the evidence or to

determine a fact in issue, a witness qualified as an expert by knowledge, skill,

experience, training, or education, may testify thereto in the form of an opinion or

otherwise." This rule provides a two-step inquiry: does a witness qualify as an

expert and will the expert testimony be helpful to the trier of fact?41 Expert

40 Esparza v. Skvreach Eguip.. Inc.. 103 Wn. App. 916, 924, 15 P.3d 188

(2000): T.S. v. Bov Scouts of Am., 157 Wn.2d 416, 423, 138 P.3d 1053 (2006).

41 Reese v. Stroh, 128 Wn.2d 300, 306, 907 P.2d 282 (1995).

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NO. 71101-6-1/25

testimony must be "sufficiently trustworthy and reliable to remove the danger of

speculation and conjecture" from the jury.42 Courts usually admit expert

testimony "under ER 702 if it will be helpful to the jury in understanding matters

outside the competence of ordinary lay persons."43

Larson's expert witness, Dr. Coleman, testified about the content of 12

peer-reviewed scientific articles based on his "extensive review" of them for trial.

He is a licensed medical doctor, is board-certified in family practice medicine,

and has run several hospital emergency departments. He diagnoses skin

diseases, does biopsies, recognizes changes in skin lesions, and testified to his

familiarity with the causes of melanoma as part of his practice and through expert

witness work on a different case. Based on his reading of the articles, he

testified about the relationship between chemicals and cancer, firefighters'

occupational exposure to chemicals, increased incidence of melanoma in

firefighters, and literature that identifies risk factors for malignant melanoma

aside from sunlight. Coleman formed an opinion, based on those articles and his

training and experience, that Larson's "occupational exposure as a firefighter

must be considered here on a more-probable-than-not-basis as one of the

causes for his development of malignant melanoma."

42 State v. Maule. 35 Wn. App. 287, 294, 667 P.2d 96 (1983).

43 Anderson v. Akzo Nobel Coatings. Inc., 172 Wn.2d 593, 600, 260 P.3d

857(2011).

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NO. 71101-6-1/26

The City cites Harris v. Robert C. Groth. MP. Inc..44 to show that

Coleman's testimony about the cause of malignant melanoma "is outside his

expertise as a family practice physician." In that case, the court held that

nonphysicians may give expert testimony but affirmed the trial court's exclusion

of expert witness testimony as within the court's discretion.45 The court stated

that "[t]rial courts retain broad discretion in determining whether an expert is

qualified."46

In this case, the trial court denied the City's motion to strike Dr. Coleman's

testimony because "the witness clearly qualifies as an expert with information

that would assist the trier of fact, and that's based not only on the recitation of the

qualifications, but also my review of the portions of the record that were

contained in the briefing." Because Dr. Coleman is a licensed physician who has

experience diagnosing skin diseases, including melanoma, we conclude that he

had sufficient knowledge and experience to provide useful information to the jury.

The City further challenges portions of Dr. Coleman's testimony involving

the articles as inadmissible hearsay. ER 802 bars hearsay, except as permitted

by the Rules of Evidence, other court rules, or statute. ER 803(a)(18) provides

that statements contained in published treatises, periodicals, or pamphlets on a

44 99 Wn.2d 438, 663 P.2d 113 (1983).

45 Harris, 99 Wn.2d at 450.

46 Harris, 99 Wn.2d at 450.

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NO. 71101-6-1/27

subject of medicine are not hearsay "to the extent. . . relied upon by the expert

witness in direct examination." These statements may be read into evidence if

the expert testifies to their reliable authority.47 And ER 703 allows experts to use

facts or data reasonably relied upon in the expert's field to form an opinion or

make inferences.

The City claims that on direct examination an expert may only "rely upon"

treatises, and here, Larson improperly "called to [Dr. Coleman's] attention" the

articles' contents. The City, citing no supporting authority, argues that when Dr.

Coleman responded by commenting on the articles' correctness, instead of

reading the passages to the jury himself, his testimony fell outside of the hearsay

exception in ER 803(a)(18).

But ER 803(a)(18) states that "[i]f admitted, the statements may be read

into evidence." The rule does not limit who may read them. Dr. Coleman

identified the articles as authoritative on the subject of malignant melanoma, that

medical experts reasonably rely on these peer-reviewed articles, and that he

relied on these in his testimony regarding causation of malignant melanoma.

Larson points to multiple examples where Dr. Coleman relied on the articles to

form his own conclusions. Thus, the trial court did not abuse its discretion by

allowing Dr. Coleman's testimony.

47 State v. Rangitsch. 40 Wn. App. 771, 780, 700 P.2d 382 (1985).

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NO. 71101-6-1/28

The City next asserts that the trial court erred by excluding Dr. Hackett's

testimony as cumulative. The City argues that unlike its other expert witnesses,

Dr. Hackett examined Larson with the purpose of reviewing risk factors that may

have led to Larson's melanoma and would have opined about the role of those

risks in Larson's case. For example, the City argues, the jury would have heard

testimony from Dr. Hackett about Larson's use of tanning beds, when Dr. Dick

failed to ask Larson about this. But Larson testified that he used a tanning bed,

and the City established through Dr. Dick's testimony that this could cause his

melanoma. Dr. Dick's testimony also reviewed her examination of Larson and

addressed risk factors for malignant melanoma. Because the trial court may limit

the number of expert witnesses at trial and has discretion to admit cumulative

evidence, expert or not,48 the court did not abuse its discretion in excluding Dr.

Hackett's testimony as cumulative.

Attending Physician Instruction

The City contends that the trial court erred when it refused to give WPI

155.13.01, relating to special consideration of an attending physician's testimony.

Courts often instruct juries to give special consideration to a claimant's attending

physician.49 Here, however, the trial court expressed concern that the instruction

48 Christensen v. Munsen. 123 Wn.2d 234, 241, 867 P.2d 626 (1994).

49 Hamilton v. Dep't of Labor & Indus.. 111 Wn.2d 569, 571, 761 P.2d 618

(1988).

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NO. 71101-6-1/29

would be misleading. It reasoned that "it seems odd to me to direct the jury to

especially consider the treating physician in a case where the testimony is, Isure

wish I had my chart, . . . and where some of the other testimony has been, you

know, more elaborate and covering."

In Boeing Co. v. Harker-Lott.50 this court held that an instruction on special

consideration of attending physicians is not mandatory and that a more general

instruction still allowed a party to argue its theory of the case. Similarly, the court

here instructed the jury that it may determine witness credibility by taking into

consideration factors including the "opportunity of the witness to observe or know

the things they testify about" and "any personal interest that the witness might

have in the outcome or the issues." This instruction allowed the City to argue

that Dr. Dick's testimony was especially helpful because she was Larson's only

attending physician who testified, was neutral, and did not advise Larson to forgo

firefighting or take precautions at work to limit potential recurrence. Because the

trial court here included instructions that properly informed the jury and allowed

the City to argue its case, the court did not abuse its discretion by declining to

give an instruction on special consideration of attending physician's testimony.

50 93 Wn. App. 181, 186-87, 968 P.2d 14(1998).

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NO. 71101-6-1/30

Attorney Fees

The trial court awarded Larson $67,470.00 in attorney fees and

$12,132.42 in costs under RCW 51.32.185(7) and RCW 51.52.130. The City

argues that the trial court should not have included in the award fees and costs

Larson incurred for his unsuccessful Board appeal. Because the language of

RCW 51.52.130 unambiguously provides for recovery "for services before the

court only," this statute does not authorize an award of attorney fees for

unsuccessful Board appeals ultimately reversed on further appeal to superior

court.51 The City argues that RCW 51.32.185(7) has the same limitation because

its text divides recovery into two sections—one for successful board appeals and

another for successful appeals to the courts. It argues that this precludes

Larson's recovery for his unsuccessful appeal to the Board, regardless of his

success at trial.

Larson argues that RCW 51.32.185(7)(b)'s unambiguous language

permits recovery. We agree with Larson. When a firefighter claimant

successfully appeals at trial court, RCW 51.32.185(7)(b) provides that "the court

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." Unlike RCW 51.52.130, it does not limit recovery to "services before the

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

228(1957).

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NO. 71101-6-1/31

court only." We conclude that the plain language of "all reasonable costs of the

appeal" includes all, and not only some, of the costs required to succeed on a

claims benefit under the Industrial Insurance Act. This construction furthers the

purpose of awarding attorney fees in industrial insurance cases: "'to guarantee

the injured workman adequate legal representation in presenting his claim on

appeal without the incurring of legal expense'" if the claimant prevailed.52 It is

also consistent with our obligation to construe the Industrial Insurance Act

liberally in favor of the worker. The court properly included in its fee and cost

award the fees and costs Larson incurred before the Board.

CONCLUSION

The trial court's instructions correctly allocated the burdens of production

and persuasion as required by RCW 52.32.185(1 )'s rebuttable presumption and

otherwise correctly stated the law, did not mislead the jury, and allowed each

party to argue its case. Because the City fails to demonstrate any abuse of

discretion in the trial court's challenged evidentiary rulings, we affirm those

rulings. And because RCW 51.32.185(7) provides for a prevailing claimant's

recovery of "all reasonable costs of the appeal" to "any court," the court properly

52 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 Labor & Indus.. 26

Wn.2d 51, 57, 173 P.2d 164 (1946)).

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NO. 71101-6-1/32

awarded Larson attorney fees incurred at both the trial and Board levels. We

affirm the trial court.

WE CONCUR:

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-32-