Washington Appeals Court Decision Has Malignant Potential

01 Aug, 2018 Bob Wilson


The timing probably couldn’t have been better. I had just concluded my fifth time moderating a session called “Things That Make Bob Go, Hmmmmm” at the 70thAnnual Conference of the Southern Association of Workers’ Compensation Administrators (SAWCA), when an interesting court case out of Washington landed on my cluttered desk. At the SAWCA presentation we had discussed the ever-growing benefits available to first responders around the nation. And while those lavish presumptions definitely make me go “hmmmm,” this appeals court decision was one that made me think “What the hell?”

It appears to me to be a presumption assumption with a ton of gumption.

The decision, issued by the Washington Court of Appeals, Division 1 in the case of Weaver v. City of Everett represents yet another broadening of benefits for first responders; yet the manner in which the decision is arrived upon appears to ignore a most simple fact underlying the case. In fact, I think the justices may need to file their own injury claim, because (in my own humble, layman’s opinion) they clearly strained something while reaching the conclusion they did.

The long story short version: The case involves a fireman who noticed a mole below his shoulder in 2011. A biopsy of the mole revealed malignant melanoma, and he underwent a procedure to remove the cancerous cells. He missed 5 weeks of work and applied for temporary total disability benefits. His claim was initially accepted but then denied by Washington L&I. An ALJ upheld the denial in a subsequent appeal, finding the cancer unrelated to his job. The firefighter filed a pro se petition for review with the Superior Court, but the case was ultimately dismissed.  

In 2014 the firefighter developed memory issues and problems forming some words. Tests revealed what turned out to be a metastasized brain tumor. Despite surgery and treatment, it appears that this condition will ultimately cost the firefighter his life. He filed a claim for permanent total disability. According to the appeals court written decision; ‘The application alleged that he suffered from a malignant melanoma located on his "upper back/scapula area, w/ cancer spreading to brain." He alleged that the condition arose from "sun exposure during outdoor firefighting and training from 1996 forward."’

Personally, I was not aware that firefighters spent so much time fighting fires while shirtless.

His claim was denied based on the fact that the claim had already been adjudicated and found not to be compensable. 

The Court of Appeals reversed that decision, focusing on what they viewed as a lack of effective defense in the initial temporary disability claim. In their view, had the initial claim had more potential monetary value, it would have justified more expensive expert witnesses who could explain the causation of the firefighter’s malignant melanoma found in his shoulder. Ergo, since the initial decision denying compensability may have been flawed, in their view the subsequent denial would have been a violation of due process. 

However, while working diligently to tie the two cases as one, the justices also make Herculean efforts to separate them. According to their decision:

As applied to the matter herein, [his] applications did not allege identical facts. His application for temporary total disability benefits alleged that he had missed five weeks of work arising from the treatment of the malignant melanoma on his shoulder. In contrast, his application for permanent total disability benefits alleged that he was permanently unable to continue on in his employment after the malignant melanoma on his shoulder metastasized and manifested itself as a brain tumor. Indeed, the medical evidence that he would need to present in order to support each application would clearly not be the same. Thus, the factual basis for [his] applications are not identical.

Accordingly, the Department and the City did not establish that his applications involved identical facts.

This is just my layman’s interpretation of the decision as written. You can read it for yourself here, although don’t be surprised if you start hearing circus music somewhere in the middle. The justices appear to go through tremendous effort to explain their decision. As I said previously, I’m surprised someone did not strain something in the process. 

What this really seems to represent is simply the continuing trend to automatic presumptions for first responders regarding any health issue they may face. Never mind that the malignant melanoma initially formed in an area that would certainly be covered by protective equipment; or the fact that it is one type of skin cancer that can form without exposure to the sun. That does not seem to matter in this decision. The fact that the claimant himself tied the two events together in his applications also does not seem to matter. What does seem to matter is that a first responder was denied benefits the court obviously believes they are due.

And that, along with the rampant trend of automatic presumption legislation sweeping the land, is going to be a huge problem for municipalities and other government organizations down the road. Heck, it’s already a huge problem for Los Angeles County, as evidenced in a recent investigative article there.  

This is a tough subject. Everyone wants to support first responders. I want to support them too, but I still believe that there should be some objective science applied to their injury benefits. I don’t believe in blank checks, and I certainly do not believe in creating a two-tiered injury system, where some workers are awarded anything based on their job title, while others are left with no recourse whatsoever. 

But that is what we are now creating in many states across this land. This convoluted decision is simply, to quote Pink Floyd, “another brick in the wall” of automatic presumptions for first responders.

It remains to be seen if the City of Everett is going to appeal this decision. Until that is determined, this case remains as a potential cancer for governments and taxpayers everywhere.

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