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Edward O. Gorre, App/cr V City Of Tacoma, Res/cr
Citation: Not availableDocket: 43621-3
Court: Court of Appeals of Washington; April 23, 2014; Washington; State Appellate Court
Original Court Document: View Document
The Court of Appeals of Washington, Division II, issued an order amending its earlier decision regarding Edward O. Gorre's occupational disease claim against the City of Tacoma and the Department of Labor and Industries. The court made specific amendments to the Order Granting Reconsideration, correcting a date and changing 'unpublished' to 'published' regarding the opinion filed on April 23, 2014. The Department’s motion for reconsideration was partially granted, resulting in the modification of a sentence in footnote 3 to clarify that certain evidence appears insufficient to rebut the presumption that Gorre's Valley Fever is an occupational disease under RCW 51.32.185. Additionally, footnote 50, which discussed the admissibility of hearsay evidence in administrative hearings, was deleted, and the subsequent footnote was renumbered. The court otherwise denied the Department's motion for reconsideration. In the published opinion, Gorre appealed the superior court's affirmation of the Board of Industrial Insurance Appeals' denial of his claim, asserting that he had separate diagnoses justifying the evidentiary presumption of occupational disease. He argued that the Board and the Department improperly shifted the burden of proof onto him and that the evidence did not sufficiently rebut the presumption of his disease stemming from employment. The City of Tacoma cross appeals on three grounds: 1) the superior court incorrectly found that Gorre was not a smoker, affecting the application of the statutory evidentiary presumption; 2) the superior court improperly considered evidence from Gorre that was outside the Board's record; and 3) the Board failed to cover the City's deposition costs incurred prior to the Board's proceedings. The superior court's findings and conclusions are reversed, specifically regarding: 1) Gorre's lack of an occupational disease under RCW 51.08.140, due to an erroneous conclusion about his inability to prove a specific injury during employment; 2) a failure to recognize that Gorre contracted respiratory conditions resulting from his employment conditions; and 3) the correctness of the Board's decision. The court affirms that the superior court did not abuse its discretion in admitting Gorre's evidence and maintains that he is not a smoker. However, it finds that both the Board and the superior court erred by not applying the evidentiary presumption of occupational disease under RCW 51.32.185 to Gorre’s claim. Consequently, the Board's denial of Gorre's claim and the superior court's affirmation of that denial are reversed, with a remand to the Board for adherence to RCW 51.32.185, shifting the burden to the City to rebut the presumption of occupational disease. In terms of background, Edward Omar Gorre worked as a firefighter and paramedic for the City of Tacoma from 1997 to 2007, where he was exposed to hazardous conditions without respiratory protection. Following symptoms of fatigue and respiratory issues, he underwent a lung biopsy, which revealed inhalation injury and upper lobe pulmonary lesions, leading to a diagnosis of hypersensitivity pneumonitis by his treating physician. In April, Gorre visited a dermatologist for a nodular skin lesion, which was biopsied and found to be coccidioidomycosis (Valley Fever). Dr. Paul Bollyky from the University of Washington confirmed the diagnosis and started treatment. Gorre subsequently filed for workers' compensation benefits due to an occupational injury, reporting an inhalation exposure found by Dr. Sandstrom but did not submit supporting medical documentation. His application lacked a specific injury location and included an evaluation from Dr. Peter K. Marsh regarding work-related Hepatitis C exposure. The City requested medical records but received no response, leading to the denial of Gorre's lung disease claim. In February 2008, the Department also denied the claim, stating it was not an occupational disease per RCW 51.08.140. Gorre sought reconsideration, claiming eosinophilic pneumonia/hypersensitive pneumonitis as presumptive occupational diseases under RCW 51.32.185(1)(a). On March 26, 2008, the Department found the City liable for Gorre's Hepatitis C and interstitial lung disease, classifying both as occupational diseases. In September 2008, the City consulted Dr. Garrison Ayars for an evaluation concerning occupational disease presumption for firefighters. After initial correspondence, Dr. Goss disagreed with Dr. Ayars' assessment in March 2009. The Department later indicated it would issue a new order, ultimately denying Gorre's claim based on lack of proof of specific injury and non-qualification as an occupational disease under RCW 51.08.140. Gorre appealed to the Board of Industrial Insurance Appeals, seeking summary judgment based on the occupational disease presumption in RCW 51.32.185. The City countered with declarations from multiple doctors. The Industrial Appeals Judge ruled that Gorre needed to provide medical evidence or an affidavit to support his claims for the presumption to apply and denied his motion for summary judgment due to lack of such evidence. Gorre filed a second motion for summary judgment, submitting 39 exhibits including a medical report and declaration from Dr. Goss, a mold inspection report, Dr. Johnson's deposition, and correspondence with the City. The Industrial Appeals Judge (IAJ) determined that: 1) the interpretation of RCW 51.32.185 was novel; 2) whether Valley Fever is classified as a respiratory or infectious disease is a factual question; and 3) the Department had appropriately applied the presumption since Valley Fever is not listed in the statute. Consequently, the IAJ opted to treat Gorre's claim as a standard occupational disease case under RCW 51.08.140, placing the burden on Gorre to prove that his Valley Fever resulted from occupational exposure during his employment. Hearings were held in June and July 2010. Dr. Christopher H. Goss, who treated Gorre beginning in May 2007, indicated that Gorre's symptoms suggested hypersensitivity pneumonitis, which he classified as a respiratory disease. Dr. Goss believed Gorre likely suffered from eosinophilic lung disease due to exposure to firefighting dust and hypothesized that Gorre developed Valley Fever, initially dormant, exacerbated by steroid treatment for his lung condition, but not contracted in Washington. Dr. Royce H. Johnson, an expert on Valley Fever, asserted that the disease is transmitted via inhalation of fungal spores from soil, with symptoms appearing two to six weeks post-exposure. He noted that Valley Fever primarily occurs in the southwestern United States and does not typically occur in Washington state. Dr. Johnson disagreed with Dr. Goss's theory regarding Gorre's pneumonia, stating that the cocci organism caused the pneumonia, rather than the ingestion of steroids during eosinophilia treatment. He opined that Gorre likely acquired Valley Fever due to his work with the City of Tacoma Fire Department, especially during firefighting activities. Gorre testified about his extensive exposure to hazardous environments throughout his career, including responding to approximately 3,000 residential fires, 600 industrial fires, and numerous vehicle-related incidents. He frequently did not wear a self-contained breathing apparatus (SCBA), resulting in direct exposure to toxic smoke, fumes, and chemicals. Specific exposures included entering homes with feces, working in nursing homes, inspecting chicken and wood manufacturing plants, and responding to wildfires. Gorre also encountered various molds at his fire station and during emergency responses. He emphasized that he was not a smoker, having only tried a cigarette once and occasionally smoked cigars in high school. Darrin S. Rivers, his EMT partner, corroborated the exposure risks firefighters face, detailing encounters with particulates and toxic substances from both residential and commercial fires. Rivers noted that it was common for firefighters to operate without SCBA during certain calls, which further increased their exposure to harmful materials. Glen Zatterberg, a firefighter, testified about mold exposure at Station No. 9, citing issues with condensation around aluminum windows and uncleaned air conditioning unit filters, which contributed to mold growth. Firefighters also inhaled diesel exhaust and smoke from fires and did not use self-contained breathing apparatus (SCBA) during certain operations prior to 2007. Matthew Simmons from Rural Metro Ambulance noted poor conditions during calls with Gorre and shared similar respiratory symptoms, though his testimony regarding his health issues was disallowed by the Board. Dr. Paul Laszlo Bollyky, an infectious disease physician, discussed Gorre's Valley Fever diagnosis, stating that while most cases are mild and self-limiting, the source of infection is often unclear. He indicated that Gorre likely contracted the disease in California or other endemic areas due to his travel history, and it was improbable for steroid injections to have spread the infection. Dr. Garrison H. Ayars, an allergy and immunology specialist, confirmed that Valley Fever is endemic to certain southwestern states and characterized its symptoms. He had treated Gorre and reviewed his medical history, concluding that Gorre had no significant lung injury or acute inhalation exposure and disagreed that steroid treatment caused the disease to worsen. Ayars maintained that Gorre's Valley Fever was contracted outside of Washington, specifically suggesting exposure in Las Vegas in December 2005, with symptom onset in February 2006. Dr. Emil J. Bardana, Jr., a physician and allergist, reviewed Gorre's medical reports in September 2009 and issued a report in October. He testified that "eosinophilic lung disease" is a vague term and asserted it is not a significant issue for firefighters. Dr. Bardana hypothesized that Gorre developed pulmonary eosinophilic syndrome due to Valley Fever contracted during a golf trip to Las Vegas in October 2005, with symptoms starting in December 2005. He opined that Gorre did not have any separate respiratory diseases aside from those related to Valley Fever. Dr. Payam Fallah Moghadam, a mycologist, supported this by stating the Valley Fever organism exists in sterile soil in specific regions, including the southwest U.S., and does not survive in western Washington's fertile soil or withstand high temperatures. Dr. Marcia J. Goldoft, an epidemiologist with the Washington State Department of Health, testified that Valley Fever is not classified as a notifiable condition in Washington and is rare, with only 15 reported cases from 1997 to 2009, none confirmed to originate in the state. Additional testimonies from Drs. Buckley, Allan Eckert, and Stuart Mark Weinstein included evaluations of Gorre's health, noting symptoms such as night sweats and finger numbness. Gorre was identified as a former smoker who quit in 1990. The Industrial Appeals Judge (IAJ) ruled to affirm the Department's denial of Gorre's claim, concluding that Gorre's Valley Fever did not arise from his occupation as a firefighter and he did not develop respiratory diseases related to his job. The IAJ's findings included that Gorre's symptoms were due to Valley Fever, diagnosed in February 2006, and did not constitute a respiratory condition attributable to his employment. Gorre petitioned the Board to review several rulings by the Industrial Appeals Judge (IAJ), including the determination that he did not suffer from a respiratory disease under RCW 51.32.185, and that he bore the burden of proving an occupational link between his respiratory diseases—eosinophilia and coccidioidomycosis (Valley Fever)—and his job. The City cross-petitioned regarding the IAJ's failure to explicitly conclude that Valley Fever was not subject to the statutory presumption and argued that it had rebutted this presumption. Upon reviewing the IAJ's record, the Board found no prejudicial errors and affirmed the IAJ's decisions, supplementing findings and conclusions to clarify that Gorre's medical conditions could not be presumed as occupational diseases under RCW 51.32.185. Key findings included that Gorre was exposed to the Valley Fever organism during a November 2005 golfing trip, developed symptoms in December 2005, and did not contract any respiratory condition causally linked to his employment as a firefighter. The Board concluded that Gorre did not develop any disabling condition that mandated a presumption of occupational disease under RCW 51.32.185, nor did he incur any disease arising from his employment conditions. Consequently, the Board affirmed the Department's March 24, 2009 order denying Gorre's claim. Subsequently, Gorre appealed the Board's decision to the superior court, seeking a reversal of the Board's rulings. He contended that the Board failed to apply the statutory presumptions for firefighter respiratory disease and infectious disease to his claims and did not require the City to provide sufficient evidence disproving the occupational origin of his conditions. The City, in its cross-motion for summary judgment, maintained that Gorre did not establish a compensable claim under the statute, argued that Valley Fever was not a presumptive occupational disease, noted Gorre's smoking history as a factor, and asserted that even if the presumption applied, it had rebutted it, with Gorre's conditions not arising from his employment. Gorre submitted several exhibits related to his occupational disease claim, including a mold evaluation report and declarations from experts. The City moved to strike these exhibits and challenged Gorre's reference to Simmons' testimony, contending that new evidence should be barred under RCW 51.52.115. Gorre countered that the Rose Environmental report and Dr. Goss' declaration were previously submitted, and Dr. Bollyky had already testified about his letter. The superior court upheld the Board's decision, indicating difficulty in establishing that Gorre contracted Valley Fever in Washington and determining that his symptoms were linked to coccidioidomycosis without separate diseases of eosinophilia or interstitial lung disease. The court found Gorre's smoking history irrelevant and denied the City's request for deposition costs, stating these costs were incurred for the Board action. Gorre voluntarily withdrew Dr. Bollyky's letter amidst the City's motion to strike, and the court did not ultimately rule on that motion. The superior court affirmed the Board's findings, concluding Gorre's claim was unsupported and ordered him to pay statutory attorney fees to both the City and the Department while denying the City's deposition cost request. Gorre is appealing the superior court's rulings, questioning the recognition of occupational respiratory conditions, the exclusion of certain evidence, and the denial of attorney fees and costs. The City is also cross-appealing regarding the superior court's decisions. Gorre contends that the superior court and the Board made errors by not applying the presumption under RCW 51.32.185, which considers firefighters' respiratory and infectious diseases as prima facie occupational diseases, thus failing to shift the burden of proof to the City. The City argues that Gorre only had Valley Fever and no other qualifying disease, justifying the superior court's conclusion. On cross-appeal, the City claims errors in the superior court’s findings regarding Gorre's smoking status, the failure to strike Gorre's evidence, and the denial of deposition costs. Gorre counters that the court correctly ruled he was not a smoker, upheld the evidence presented, and justifiably denied the City’s request for costs. Judicial review of workers' compensation cases follows a de novo standard, with the burden on the party challenging the Board's decision. The Board's findings and decisions are considered prima facie correct, and the superior court may only substitute its findings if it finds the Board's decision incorrect based on credible evidence. The appellate review examines whether substantial evidence supports the trial court's findings and whether the conclusions of law logically follow from those findings. The Board's decisions are subject to de novo review, similar to that of the superior court, relying exclusively on the evidence presented to the Board. Under RCW 51.52.115, the Court of Appeals' role differs from typical administrative appeals; it functions akin to reviewing a superior court trial judgment. The review process is confined to assessing whether substantial evidence supports the superior court's findings and whether the conclusions of law follow logically from those findings. The appellate court must not reweigh evidence or alter the burden of persuasion, as this would infringe upon the right to a jury trial. The Industrial Insurance Act specifies that appeals from superior court judgments occur as in other civil cases (RCW 51.52.140). Hence, the trial court's factual determinations are not reviewed de novo. In the specific case of Gorre, it was determined that contracting Valley Fever constitutes a respiratory disease qualifying for the statutory presumption of an occupational disease under RCW 51.32.185. The Department, the Industrial Appeals Judge (IAJ), the Board, and the superior court failed to apply this presumption appropriately, erroneously placing the burden on Gorre to prove his claim rather than on the City to rebut the presumption. While workers typically bear the initial burden to demonstrate the existence of an occupational disease, RCW 51.32.185 establishes a rebuttable presumption for firefighters regarding certain diseases, thereby altering the burden of proof in these specific cases. RCW 51.32.185(1) establishes a rebuttable presumption that certain diseases, specifically respiratory and infectious diseases, are occupational diseases for firefighters under workers' compensation law, but it does not create a new cause of action. The presumption is based on legislative findings that firefighters are exposed to harmful substances and have a higher incidence of respiratory diseases compared to the general population. The employer bears the burden of disproving this presumption once the firefighter demonstrates he suffers from one of the qualifying diseases listed in the statute. This rebuttal can be achieved through a preponderance of evidence, which may include factors like tobacco use, physical fitness, and other lifestyle considerations. Additionally, any firefighter with a heart or lung condition who is a regular tobacco user is excluded from this presumption as of July 1, 2003. The focus of the current appeal is specifically on the respiratory and infectious diseases claimed by a firefighter, with the burden shifting to the employer to show that these conditions did not arise out of the firefighter's employment. If an employer cannot demonstrate the association between a firefighter's disease and their employment by a preponderance of the evidence, such as when the disease's cause is unidentified, the statutory presumption in the Industrial Insurance Act aims to minimize suffering and economic loss due to work-related injuries or deaths. In cases where a firefighter suffers from a disease not covered by the presumption, the firefighter bears the burden of proving the condition qualifies as an occupational disease under RCW 51.08.140, necessitating evidence that it arose from employment. The case centers on whether Gorre suffers from one or multiple medical conditions, particularly focusing on Valley Fever. The court applies a substantial evidence standard, deferring to the agency's findings unless the evidence clearly contradicts them. Gorre challenges the Board’s conclusion that he has only Valley Fever, asserting he has additional diseases like eosinophilia or interstitial lung disease, and claims these should qualify for the occupational disease presumption. The court disagrees with Gorre's assertion of multiple diagnoses, agreeing with the City that he only established Valley Fever. However, it acknowledges that Valley Fever fits the definition of an occupational disease under the statutory presumption, which shifts the burden of proof to the City to demonstrate that the disease did not arise from Gorre's firefighting duties. The Board's failure to apply this presumption when determining the origin of Gorre's disease is deemed erroneous. The only support for the existence of an additional condition came from Dr. Goss, who suggested that Gorre's Valley Fever stemmed from a previously existing eosinophilic lung condition treated with steroids. Dr. Johnson and other experts disputed Dr. Goss's assertion that Gorre's use of steroids for eosinophilic lung disease activated a dormant cocci organism, leading to Valley Fever. Instead, they concluded that the dormant Valley Fever cocci was responsible for Gorre's respiratory symptoms, including pneumonia. Dr. Bardana testified that eosinophilic lung disease is unlikely to develop in firefighters and suggested that Gorre had a single condition, pulmonary eosinophilic syndrome, stemming from his preexisting dormant Valley Fever. The Board and superior court affirmed that Gorre exhibited only symptoms of Valley Fever, not separate eosinophilia or interstitial lung disease. The findings also addressed whether Gorre's Valley Fever constituted an occupational disease under RCW 51.08.140. The court determined Gorre did not demonstrate a specific injury during employment or respiratory conditions arising from his job. However, it agreed with Gorre that the Board and superior court mistakenly did not apply the statutory presumption of occupational disease under RCW 51.32.185, which creates a prima facie presumption for respiratory and infectious diseases. The statute's plain meaning should guide interpretation, and if ambiguous, statutory construction can clarify legislative intent. The Board's failure to apply this presumption improperly shifted the burden to Gorre to prove his respiratory symptoms were work-related, leading to the denial of benefits. Valley Fever is not endemic to Washington; therefore, Gorre's exposure during his trip to Las Vegas and time in California is deemed non-employment-related, leading to the conclusion that his Valley Fever did not arise naturally from his work. Washington's statutory interpretation emphasizes understanding a statute's plain meaning, considering context and intent, particularly for the Industrial Insurance Act, which is designed to provide broad worker compensation. The Act presumes respiratory diseases for firefighters as occupationally related due to their higher risk of respiratory illnesses. Gorre's Valley Fever qualifies as a respiratory disease under RCW 51.32.185, which lacks a specific definition in law but is defined in common terms as conditions affecting breathing. Medical testimony confirms that Valley Fever affects the respiratory system, transmitted through inhalation of airborne spores, leading to various pulmonary issues. Experts noted that while Valley Fever is infectious, it presents primarily with pulmonary symptoms and can result in serious lung complications. Gorre's medical assessments revealed significant respiratory impairment consistent with Valley Fever. Valley Fever is identified as an airborne disease contracted by humans through inhalation, primarily affecting the lungs and causing respiratory and pulmonary symptoms. It meets the definition of “respiratory disease” under RCW 51.32.185, which describes such diseases as conditions impairing the respiratory system's normal function. The Board and superior court incorrectly failed to classify Gorre's Valley Fever as a respiratory disease. Furthermore, Gorre's Valley Fever is classified as an “infectious disease” under the same statute, which presumes infectious diseases to be occupational diseases for firefighters. While Washington law does not explicitly define “infectious disease,” it lists four specific diseases that qualify, with the language suggesting this list is not exclusive. The City argued that Gorre's disease was unrelated to his employment, asserting that the legislature intended to limit the scope of qualifying diseases to the listed ones. However, it is argued that the term "extended" in the statute indicates legislative intent to include a broader range of infectious diseases, not just the four specified. This interpretation aligns with the legislative goal of providing comprehensive benefits to firefighters exposed to various occupational hazards. The statute should be construed liberally to avoid absurd outcomes, such as excluding other serious infectious diseases from coverage. Thus, the intent is to encompass a wider array of infectious diseases under the presumption of occupational disease status for firefighters. Valley Fever is classified as an infectious disease under RCW 51.32.185, as supported by expert opinions. The legislature did not include limiting language in RCW 51.32.185(4), unlike in the preceding subsection, indicating an intent to broadly cover infectious diseases. The presumption established in subsection 1(c) applies specifically to firefighters with cancer that develops after ten years of service, contingent upon an initial cancer-free medical examination. However, this presumption does not extend to Valley Fever, which is recognized as both a respiratory and infectious disease, thereby qualifying for the evidentiary presumption of occupational disease under the Industrial Insurance Act. The Board and superior court incorrectly treated Gorre's claim as a standard occupational disease claim, failing to apply the statutory presumption and improperly placing the burden of proof on Gorre. The decision is reversed and remanded for the Board to apply the presumption, shifting the burden to the City to disprove that Gorre's Valley Fever qualifies as an occupational disease. In the City's cross-appeal, the arguments regarding Gorre's smoking history and evidence admissibility are rejected as the court reverses and remands the case. The issue of the City’s failure to obtain deposition costs is not addressed due to the reversal. Gorre is deemed not a smoker under RCW 51.32.185(5), which impacts the application of the occupational disease presumption. Gorre presented medical records and evidence demonstrating he was not a smoker, supporting the Board’s and superior court’s findings under RCW 51.32.185, with no contrary evidence in the record. Consequently, it is premature to address the City and Department’s cross-appeal regarding whether the City rebutted the statutory presumption of occupational disease, as the Board has yet to consider Gorre's application with this presumption in mind. RCW 51.32.185 specifies that the evidentiary presumption does not apply to firefighters who are regular tobacco users or have a tobacco history; however, the City incorrectly argued that Gorre fell into this category. The extent of tobacco use qualifying for exclusion under RCW 51.32.185(5) has not been defined by the legislature or common law, but WAC 296-14-315 defines a "current smoker" and "former smoker." The record does not categorize Gorre as either, thus supporting the conclusion that he is not a smoker under the statute. Regarding the City’s motion to strike evidence presented in superior court, which included the Rose Environmental report and various medical testimonies, Gorre contended that the superior court correctly admitted this evidence since it reviews Board decisions de novo, relying on the certified Board record. The court agrees with Gorre on this procedural point. A superior court is restricted from receiving additional evidence beyond what was presented to the Board unless there are procedural irregularities. The City contends that testimonies from Dr. Bardana, Dr. Eckert, and Dr. Weinstein demonstrate Gorre was a former smoker; however, evidence indicates Gorre only experimented with smoking and had minimal tobacco exposure. Dr. Eckert confirmed Gorre quit smoking in 1990, while Dr. Weinstein noted Gorre's intake form indicated he stopped smoking at age 30 in 1998. Dr. Bardana reported Gorre had a history of chewing tobacco, ceased in 1997, but characterized this exposure as negligible. Gorre himself testified that he was not a regular smoker and had indicated on intake forms for two doctors that he did not smoke. The court has discretion to rule on motions to strike evidence. The Rose Environmental report was deemed part of the Board record and not hearsay, thus admissible. The IAJ's admission of Dr. Goss's declaration was also valid, despite the City's hearsay claims. Gorre's withdrawal of Dr. Bollyky's letter means it is not included in the current appeal. The City mischaracterized Gorre's use of Simmons' testimony, which was not a part of his summary judgment arguments. The IAJ did not rule on the exclusion of the Rose report, allowing it to remain in the record. Administrative hearings allow for more relaxed evidentiary standards, permitting relevant hearsay evidence. Ultimately, the superior court did not err or abuse its discretion as claimed by the City. The superior court's determination that Gorre was not a smoker and its decision to admit Gorre's evidence are upheld. However, the appellate court reverses key findings and conclusions of the superior court, including the conclusion that Gorre did not have an occupational disease under RCW 51.08.140, did not develop respiratory conditions related to his City employment, and that the Board's decision was correct. Additionally, the court reverses the Board's findings that the superior court had affirmed, specifically Finding of Fact 1.2 and Conclusions of Law 2.2, 2.3, and 2.4. The appellate court also overturns the superior court's affirmation of the Board's denial of Gorre's worker's compensation claim under RCW 51.32.185 for firefighter-occupational disease. The case is remanded to the Board for reconsideration of Gorre's claim, instructing the Board to apply the evidentiary presumption of occupational disease under RCW 51.32.185 and to place the burden on the City to disprove that the disease arose from Gorre's employment by a preponderance of the evidence.