Washington Court of Appeals Issues Decision Restricting Type of Evidence to Rebut Firefighters’ Presumption
In a recently published decision, Bradley v. City of Olympia, the Washington Court of Appeals clarified the type of evidence an employer or the Department should present to rebut the presumption a firefighter’s cancer is work-related.
RCW 51.32.185 establishes a rebuttable presumption for firefighters that cancer is an occupational disease. The Washington Supreme Court has previously held the presumption is rebutted by presenting evidence through which a reasonable trier of fact could conclude a firefighter’s cancers was, more probably than not, cause by nonoccupational factors. See Spivey v. City of Bellevue, 187 Wn.2d 716 (2017). RCW 51.32.185 also provides a nonexhaustive list of what type of evidence can be used to rebut the presumption, e.g., tobacco use, physical fitness, hereditary factors, etc.
In Bradley, the claimant, a retired firefighter, was diagnosed with bladder cancer two years after his retirement. The Department denied the claim and claimant appealed to the Board. On appeal, the claimant’s employer presented evidence from three medical experts doubting a causal connection between firefighting and bladder cancer in general. The Board affirmed the Department’s decision and claimant appealed to Superior Court.
Before the Superior Court, claimant filed a motion for summary judgement arguing the Department and his employer had failed to rebut the presumption that his bladder cancer was causally related to his work as a firefighter. The Superior Court granted summary judgment in claimant’s favor. His employer appealed.
Affirming the Superior Court, the Court of Appeals held that rebutting the presumption requires, in part, the production of evidence that an individual firefighters cancer was not caused by their work. In doing so, it noted the presumption itself was designed to foreclose the argument that firefighting in general was not known to cause cancer. It also observed the evidence listed in the statute were all factors personal to an individual. Therefore, rebutting the presumption requires employers to produce evidence relating to the individual worker.
In in its decision the Court of Appeals also explained rebutting the presumption requires the employer to produce evidence and persuade the trier of fact a firefighter’s cancer is not related to their work. Its decision in Bradley was limited to the type of evidence it must produce to rebut the presumption. The Court did not elaborate on what evidence would ultimately persuade the trier of fact. This means we can likely expect more decisions on how to successfully rebut the presumption in the future.
Have a question regarding the firefighter presumption in Washington? Please feel free to contact me at or (503) 595-6110.
Posted by David White.
