Board’s 2020 Significant Decisions Include Two of Interest to First Responder Employers
The Washington Board of Industrial Insurance Appeals recently published its list of Significant Decisions for 2020. Per WAC 263-12-194, these are decisions which the Board deems to contain “analysis or decision of substantial importance.” Two of the 2020 Significant Decisions may be of particular interest to Washington employers of first responders.
The first case is In re David Apodaca, BIIA Dec., 19 11160 (2020). This case addresses the “firefighter presumption” that certain cancers are related to employment as a firefighter.
Under RCW 51.32.185, full-time firefighters are entitled to a prima facie presumption that certain conditions, including malignant melanoma, are occupationally related. In the David Apodaca case, the Board addressed the evidence required to overcome this presumption.
The decision discusses the impact of a recent Washington Court of Appeals case, Spivey v. City of Bellevue, 187 Wn.2d 716 (2017). In Spivey, the Court held that effect of the presumption is that it shifts both the burden of production and persuasion to the Department or self-insured employer. This means that even if the evidence is produced to rebut the presumption that the cancer is occupationally related, the presumption does not go away. The Board described it this way:
“Simply stated, the effect of the presumption is to relieve the claimant of the burden of proving that the medical condition is occupationally related, and it imposes on the Department or the employer the burden of proving that it is not. This is in contrast to the usual rule in a workers’ compensation case that the claimant will lose if the evidence is evenly split. If the evidence is evenly split in a firefighter presumption case, the claimant will win.”
Even with this strong presumption in claimant’s, the Board ultimately denied the appeal by Mr. Apodaca, who was a longtime firefighter for the city of Yakima. The Board found that the city presented a preponderance of evidence to rebut the statutory presumption. Mr. Apodaca’s only testifying expert was a lawyer and former family practice and emergency room physician, who had also never met him. The Board noted that Mr. Apodaca’s expert seemed to have “only a general medical knowledge of cancer.” In contrast, the city of Yakima presented medical testimony from two Board-certified oncologists.
While the David Apodaca decision shows that the firefighter presumption can be overcome, it also illustrates the level of evidence that the Department or self-insured employer should be prepared to present to prevail in denying a claim. Had the claimant’s expert not been so dramatically outmatched in expertise by the employer’s experts, it is quite possible the outcome would have been different. Indeed, even with this evidence, Board member Cole dissented.
The second case is In re Gary Yetter BIIA Dec., 19 11900 (2020). This case came before the Board on appeal by Mr. Yetter, who presented evidence that he retired in 2017 due to post-traumatic stress disorder related to his work as a paramedic firefighter.
Under Washington law, mental conditions caused by stress in general are not allowable as an occupational disease. RCW 51.08.142. However, in 2018, the Washington legislature created an exception to this rule. For firefighters and law enforcement officers with at least 10 years of service, there is now a prima facie presumption that a diagnosis of post-traumatic stress disorder qualifies as an occupational disease. RCW 51.08.142; RCW 51.32.185. The change to the law took effect on June 7, 2018.
Mr. Yetter argued that the statutory presumption should apply retroactively to allow his claim, even though he was diagnosed with PTSD and retired before the law took effect. The Board concluded that the statute does not apply retroactively. The Board noted that under Washington law, statutes operate prospectively, unless there is explicit language otherwise. The statutes at issue did not contain any language explicitly state they applied retroactively. Thus, the Board concluded that Mr. Yetter’s claim was not covered.
The Gary Yetter case is an important decision for employers in preventing the mental condition presumption statute from being expanded to allow claims retroactively. Further, it suggests the Board is not inclined to interpret other statutes to apply retroactively without explicit statutory language.
A complete list of the Board’s Significant Decisions for 2020 is at: http://biia.wa.gov/NewSD.html Have a question or need help navigating the ever-changing legal landscape of Washington workers’ compensation? Please contact me at or 503-595-6113.