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                                                             Ronald R. CarpentBr ·
                                                             Supreme Court Clark




     IN THE SUPREME COURT OF THE STATE OF WASHINGTON



DEPARTMENT OF LABOR AND                              NO. 91357-9
INDUSTRIES,

                   Petitioner,
                                                     ENBANC
             v.

BART ROWLEY, SR.,
                                                              MAR ~ 7 2U16
                   Respondent.



      GORDON McCLOUD, J.-Bart Rowley Sr. was injured while driving a truck

for his employer, and he subsequently filed a claim for workers' compensation

benefits. The Department of Labor and Industries (Department) denied Rowley's

claim because it determined that Rowley was injured while committing a felony:

possession of a controlled substance. The Industrial Insurance Act (IIA), Title 51

RCW, bars payment of workers' compensation under that circumstance. RCW

51.32.020. Rowley filed a notice of appeal to the Board of Industrial Insurance

Appeals (Board). After considering testimony from several witnesses, an industrial
Dep 't ofLabor & Indus. v. Rowley (Bart), No. 91357-9




appeals judge (IAJ) found that there was insufficient evidence to sustain the

Department's decision and ordered the Department to approve Rowley's claim.

      The Department has challenged that order four times: in an appeal before a

three-member board panel, at the superior court, at the Court of Appeals, and finally

in this court. Every lower court affirmed the IAJ's decision that Rowley was entitled

to benefits. Although we reverse the Court of Appeals' holding on the applicable

evidentiary standard, we too agree that Rowley is entitled to benefits.

                                       FACTS

       Bart Rowley worked as a truck driver for 33 years. Rowley was severely

injured 1 when his truck-trailer veered off a highway overpass and landed on the

roadway below. The accident occurred midday on a clear and dry day. Suspecting

that drug use might have been a contributing factor, law enforcement sent Officer

Donevan Dexheimer, a trained drug recognition officer, to Harborview hospital,

where Rowley was treated after the accident. At Harborview, an emergency room

(ER) nurse provided Officer Dexheimer with a "baggie" that she said had come from

Rowley's pocket. The baggie contained residue that Officer Dexheimer believed to




       1Rowley's spinal cord was severed in the accident, causing paraplegia, among other
conditions.
                                           2
Dep 't of Labor & Indus. v. Rowley (Bart), No. 91357-9




be methamphetamine.       Officer Dexheimer also had Rowley's blood drawn and

submitted to the Washington State Toxicology Laboratory (Lab) for testing.

      Rowley filed a claim for workers' compensation benefits. The Department

rejected Rowley's claim, finding that it was barred by RCW 51.32.020. The relevant

part of that statute provides:

       If injury or death results to a worker from the deliberate intention of the
      worker himself or herself to produce such injury or death, or while the
      worker is engaged in the attempt to commit, or the commission of, a
      felony, neither the worker nor the widow, widower, child, or dependent
       of the worker shall receive any payment under this title.

(Emphasis added.)

       As will be discussed in more detail below, this statute contains two bars to

payment of a workers' compensation claim: the deliberate self-injury bar (not at

issue in this case) and the felony payment bar (at issue in this case). In its order

denying benefits, the Department appeared to conflate the two payment bars and

thus paraphrased the statute inaccurately:

       CLAIM IS REJECTED BASED [ON] RCW 51.32.020 WHICH
       STATES IF INJURY OR DEATH RESULTS TO A WORKER FROM
       THE DELIBERATE INTENTION OF THE WORKER HIMSELF ...
       WHILE THE WORKER IS ENGAGED IN THE ATTEMPT TO
       COMMIT, OR THE COMMISSION OF, A FELONY .... SHALL
       NOT RECEIVE ANY PAYMENT UNDER THIS TITLE.

Clerk's Papers (CP) at 275 (alterations in original).


                                             3
Dep't of Labor & Indus. v. Rowley (Bart), No. 91357-9




      Rowley filed a request for reconsideration, which the Department denied. He

then filed a notice of appeal with the Board. The Board granted Rowley a hearing

before IAJ Kathleen Stockman.

      Consistent with Washington Administrative Code (WAC) 263-12-115(2)(a),

which provides that "[i]n any appeal under ... the [IIA] ... , the appealing party

shall initially introduce all evidence in his or her case in-chief," 2 Rowley presented

his evidence first. He called only two witnesses: himself and the office manager for

his employer.       Consistent with WAC 263-12-115(2)( c), the Department then

presented its case in chief. It called six witnesses: Officer Dexheimer; Brian Capron,

a forensic specialist from the Lab; Washington State Trooper David Roberts, the first

responder to Rowley's accident; Washington State Trooper Nicholas King; Mary

Comstock, a nurse who treated Rowley in the ER; and Jennifer Compton, another

ER nurse who treated Rowley.

       The office manager for Rowley's employer testified that Rowley was working

when the accident occurred. She thus provided evidence of injury during the course

of employment. Rowley testified that he was in a coma for 40 days after the accident

and could not remember anything about the events leading up to it. But he also


       2The only exception to this rule applies to cases in which the Department alleges
that a worker has received benefits through "fraud or willful misrepresentation." WAC
263-12-115(2)(a).
                                           4
Dep 't of Labor & Indus. v. Rowley (Bart), No. 91357-9




testified that he had taken random drug tests many times over the course of his

employment and was not aware of ever testing positive. He thus presented some

evidence from which an inference could be drawn that he did not possess drugs at

the time of his accident.

       The Department then called Officer Dexheimer; he testified that he was

trained to identify both signs of impairment and types of drugs. He also testified

about his interactions with nurses treating Rowley. He stated that a nurse (either

Nurse Comstock or Nurse Compton) told him that Rowley "had a quote/unquote

'surprise' in his pocket when he arrived." CP at 73 7. Officer Dexheimer explained

that he could not perform a field sobriety test on Rowley because Rowley was

unconscious, but that he measured Rowley's pulse, listened to the conversations

occurring between the treating nurses, and got Nurse Comstock to help him find

Rowley's clothes and a baggie with some suspected methamphetamine residue in it.

Rowley's pulse was normal, but Officer Dexheimer testified that he believed this

was unusual because hospital staff had given Rowley morphine and Valium. Under

those circumstances, Officer Dexheimer considered Rowley's pulse high, possibly

indicating use of a central nervous system stimulant prior to the accident. On one

hand, Officer Dexheimer testified that he could not form an opinion about whether

Rowley was impaired by drug use because he could not perform a proper field


                                            5
Dep'tofLabor & Indus. v. Rowley (Bart), No. 91357-9




sobriety test. On the other hand, he testified that "coming down" from stimulants

could cause a person to fall asleep at the wheel and that this might explain Rowley's

accident. CP at 751. He also stated that he arrested Rowley for driving under the

influence of an intoxicant (DUI) (while Rowley was unconscious in the hospital)

and he opined that the accident "more likely than not" occurred because Rowley was

affected by methamphetamine. CP at 754.

      Officer Dexheimer also testified that he asked Nurse Comstock where the

baggie was and that she told him Rowley's clothes and the baggie were both in the

trash. He related the following exchange with Nurse Comstock:

      So she pointed out -- We looked through the garbage bag that was
      actually still in the room, and it was nearly empty. She says, "No, this
      isn't the right bag." We went outside, we opened up the garbage bag,
      and she started opening the bags that were inside, and she says, "oh,
      here it is," hands it to me, or points it out to me. I can't remember
      whether she actually physically handed it to me or just said, "That's the
                     . " ....
      one. Th at ' s 1t.

CP at 746. When Officer Dexheimer saw the baggie, he determined that the residue

in it looked like methamphetamine. He explained that this was because of its color,

texture, and packaging.

       Finally, Officer Dexheimer testified that he provided Nurse Comstock with

two vials so she could draw Rowley's blood. Officer Dexheimer labeled these vials

with Rowley's name, but could not remember whether he also labeled them with the

                                          6
Dep 't of Labor & Indus. v. Rowley (Bart), No. 91357-9




date or the case number.     After Nurse Comstock took Rowley's blood, Officer

Dexheimer gave the vials to Trooper King.

      On cross-examination, Officer Dexheimer explained that, according to his

police report, hospital staff had washed the contents of the baggie down the sink

before he arrived at Harborview. He stated that although Nurse Comstock found the

baggie in the trash for him, he believed that a different staff member originally

discovered the baggie. He also testified that he might have written the wrong date

in his accident report and the wrong name on the blood vials ("Rawley" instead of

Rowley), CP at 765, that he did not test the baggie or take a sample from the hospital

sink, and that coffee can raise a person's heart rate. CP at 766-67.

       Capron, the forensic specialist from the Lab, testified that the Lab received

two vials of blood marked "R-a-w-1-e-y," along with a "request for analysis" marked

"R-o-w- 1-e-y. "   CP at 784.     He explained that the Lab's analysts noted that

discrepancy and then tested the blood. Capron testified that the blood tested positive

for high levels of methamphetamine. He also testified that he believed it was more

probable than not that Rowley was impaired by methamphetamine when his truck

went off the road.




                                            7
Dep 't of Labor & Indus. v. Rowley (Bart), No. 91357-9




         Compton, one of the ER nurses, testified that she did not specifically

remember Rowley but that her records showed that Officer Dexheimer gave her vials

so she could draw Rowley's blood.

         Comstock, the other ER nurse, testified that she remembered Rowley, but not

well. She explained that when a trauma patient like Rowley comes into the ER, his

or her clothing is cut off either before or upon arrival. She also stated that when ER

staff cut clothing from a patient, they search it for valuables, lock up any valuables

that are found, and dispose of any other items. Comstock said she was sure that

Rowley's clothes were disposed of.
     .
         Comstock also testified that Officer Dexheimer had disrupted protocol in the

ER and that she had provided him with a baggie that she was certain, on that day,

came from Rowley's clothes. She recounted the events as follows:

               I remember there being [a] disruptive scenario in that room, not
         because the patient was sick but because now we had the officer in-
         house. It was a ... significant delay .

                . . . [W]e had done a lot of care and quantified the patient was
         very sick, but then this officer shows up and wants all of these things
         that we've already disposed of and wants to be engaged in the care
         immediately []regardless of the acuity. I do remember that part.



               So I remember him wanting the clothes, being very frustrated
         about them not being readily available and being frustrated that we had
         found something that we suspected to be an illicit drug and that we

                                            8
Dep 't of Labor & Indus. v. Rowley (Bart), No. 91357-9




      didn't have to produce to him, and his expectation was that they would
      have saved all of this stuff, anticipating somebody to be there, but that's
      not our general practice.

             So I do remember him and I -- he and I dialoguing, and I told him
      I could find the clothes if they -- I knew where they would go, because
      they had already been removed from the room, because the
      housekeepers are very diligent about cleaning those spaces.

              So we went down the hall to where they would be and I do
       remember -- I don't remember what trash they were in. I don't
       remember what the color of the bags were. I don't remember what the
       clothes looked like. I just remember us pulling the clothes out, me
       finding the ones that were his and the Baggie that he was in question
       about, because it was distinctive ....



              . . . I know that that day I was certain that they were [Rowley's
       clothes]. I couldn't recall to you at this point what they looked like or
       who they were [from], but they came from that room that was the only
       room that had just-- they had just cleaned that day because I remember
       the housekeepers coming down to be helpful to, you know, help me go
       through the trash. That's not something they like for us to do at all, so
       it took significant negotiating to be able to get into the trash to be able
       to pull it out, because it's just not safe.

CP at 905-07. Comstock also testified that she could not remember whether she or

someone else originally discovered the baggie with the smiley faces on it. She

explained that she had to go "down to the hallway ... to negotiate with the staff of

the housekeepers to get into the room to be able to go through the trash, something

they're instructed to not allow us to do." CP at 925-26.



                                            9
Dep't of Labor & Indus. v. Rowley (Bart), No. 91357-9




      Trooper King testified that he came to Harborview shortly after Rowley's

accident and that Officer Dexheimer provided him with two pieces of evidence there:

the blood vials taken from Rowley' and "a small baggie of crystal substance." CP at

948. He stated that he labeled the blood vials with the name '"Rowley Bart A.,"'

Rowley's date of birth, and "item numbers." CP at 948-49. He later clarified that

he had marked the vials with the name "R-A-W-L-E-Y," per Officer Dexheimer's

original spelling, and testified that he used an incorrect "[p]roperty number" on the

"transfer-disposition report" associated with the vials and put the wrong time "time

obtained" in his evidence report-2:30a.m. instead of2:30 p.m. CP at 953-56, 965.

Trooper King also testified that he tested the residue in the baggie using a "field test

kit" or "NIK [(narcotics identification kit)] test[]" kit and determined it to be

"ecstasy, methamphetamine." CP at 972-75, 948.

       Finally, Trooper Roberts testified that he was the first responder to the scene

of Rowley's accident. He explained that the accident occurred in daylight, in dry

weather, and on a portion of road with no signs or lights. Trooper Roberts stated

that after his investigation, he recommended that the State charge Rowley with

possessing methamphetamine in violation of the Controlled Substances Act, chapter

69.50 RCW. But Trooper Roberts also testified that (1) he charged Rowley with

DUI, and (2) he referred the case to the prosecutor's office as a felony "Violation of


                                           10
Dep 't of Labor & Indus. v. Rowley (Bart), No. 91357-9




the Controlled Substance Act," and (3) he was not sure whether any criminal charges

were ever filed against Rowley. CP at 1005-07. It is undisputed that the State never

charged Rowley with a felony.

       On the basis of that testimony, Judge Stockman reversed the Department's

order. In a "Proposed Decision and Order," she concluded that the Department had

not met its burden-which she determined to be a preponderance of the evidence

standard-to show that RCW 51.32.020-as inaccurately paraphrased in the

Department's original order-barred compensation: "[i]nnuendos and boot

strapping are not sufficient to establish even by a preponderance of the evidence that

the claimant's injury resulted from the deliberate intention of Mr. Rowley himself

while he was engaged in the attempt to commit, or in the commission of, a felony."

CP at 69. Judge Stockman therefore found that "[o]n or about August 14, 2008, the

injuries sustained by Bart A. Rowley, Sr., did not result from the deliberate intention

of Mr. Rowley himself while he was engaged in the attempt to commit, or in the

commission of, a felony." CP at 70.

                                  Procedural History

       A three-member Board panel granted the Department's petition for review.

The Department argued that the IAJ erred by requiring it to prove that Rowley

intended to commit a felony and by concluding that the preponderance of the


                                           11
Dep 't of Labor & Indus. v. Rowley (Bart), No. 91357-9




evidence did not establish that Rowley possessed methamphetamine. The Board

panel affirmed in a split vote, with three separate opinions applying three different

evidentiary burdens. CP at 11-19.

       The controlling opinion (signed by two judges) reached four conclusions

relevant to our analysis. CP at 11-17.

       First, the opinion addressed the confusion in the original and proposed orders

regarding the legal standard at issue. It explained that compensation will be barred

simply because a worker was injured while committing or attempting a felony, and

that the Department does not need to prove any separate '"deliberate intention'" in

order to deny benefits. CP at 15 (emphasis omitted).

       Second, the opinion held that the Department must prove the commission or

attempt of a felony by clear, cogent, and convincing evidence. It acknowledged that

the normal standard in IIA appeals is the preponderance of the evidence standard but

it concluded that felony payment bar appeals were different for two reasons: (1) the

felony payment bar "deprive[s] the worker of benefits to which he or she would

otherwise be entitled but for the allegation of wicked conduct" and (2) an adverse

determination exposes the worker to significant financial and reputational

consequences and possibly even criminal prosecution. CP at 14. In reaching this

conclusion, the controlling opinion also relied on a prior board decision interpreting


                                           12
Dep 't ofLabor & Indus. v. Rowley (Bart), No. 91357-9




another statute, RCW 51.32.240, which governs cases in which the Department

alleges that a claimant obtained benefits through "willful misrepresentation." Id. at

14-15.

         Third, the Board's controlling opinion concluded that the Department had not

met its evidentiary burden. It explained that while the evidence showed that Rowley

likely used methamphetamine, this was not dispositive because driving under the

influence is only a gross misdemeanor. It further explained that while possession is

a felony, the evidence that Rowley actually possessed methamphetamine in the truck

was not clear, cogent, and convincing. It cited Officer Dexheimer's failure to

explain why he believed the residue in the baggie was methamphetamine, the chain

of custody problems involving the baggie, and Officer King's failure to explain why

his field test was reliable or how that test could reveal both ecstasy and

methamphetamine.

         Finally, the controlling opinion held that "the Department cannot reject a

claim under the felony provision of RCW 51.32.020 [because] ... [t]he proper

inquiry [under that statute] is whether Rowley is barred from receiving industrial

insurance payments." CP at 13. In other words, the panel issued a procedural

holding: whenever the Department concludes that a claimant was injured in the




                                           13
Dep 't of Labor & Indus. v. Rowley (Bart), No. 91357-9




course of employment while committing or attempting a felony, it must grant the

claim and then deny payment.

      One member of the panel concurred in the decision, stating that he would have

required the Department to prove the attempt or commission of a felony by proof

beyond a reasonable doubt. CP at 17-18. The third member dissented, concluding

that the preponderance of the evidence standard governs in all workers'

compensation claims and that the Department's evidence met that standard. CP at

18-19.

         The Department appealed to the superior court. CP at 2-4. The superior court

affirmed the Board's decision in all respects. CP at 1182-85. The Department again

appealed. CP at 1186-87.

         Division One of the Court of Appeals affirmed two of the lower court's

holdings: (1) the holding that the Department bears the burden to prove that the

felony payment bar applies and (2) the holding that this proof must be by "clear,

cogent, and convincing" evidence. Dep 't of Labor & Indus. v. Rowley, 185 Wn.

App. 154, 157,340 P.3d 929 (2014), review granted, 183 Wn.2d 1007,352 P.3d 187

(2015). But it reversed the holding that the Department cannot reject claims under

the felony payment bar. !d. at 168-70.




                                           14
Dep 't of Labor & Indus. v. Rowley (Bart), No. 91357-9




      With respect to the burden of proof, the Court of Appeals reasoned that the

felony payment bar is an affirmative defense: a statutory exception that the

Department asserts to escape the general rule that a covered worker is entitled to

benefits whenever he or she is injured on the job. ld. at 162.

       With respect to the standard of proof, the Court of Appeals acknowledged that

the preponderance standard usually applies in industrial insurance appeals. Id. at

163 (citing Olympia Brewing Co. v. Dep 't of Labor & Indus., 34 Wn.2d 498, 504,

208 P.2d 1181 (1949), overruled in part on other grounds by Windust v. Dep 't of

Labor & Indus., 52 Wn.2d 33, 40, 323 P.2d 241 (1958)). But it concluded that the

Board panel had made a sound "policy decision" to apply the clear, cogent, and

convincing evidentiary standard in felony payment bar cases. I d. at 164-65. It

decided that the superior court "appropriately deferred to the expertise of the Board

on this issue," in light of the purposes underlying the IIA. I d. at 165.

                             STANDARD OF REVIEW

       Generally, when we review an agency's decision we sit in the same position

as the superior court and apply the Administrative Procedure Act directly to the

record before the agency. Brown v. Dep't of Commerce, 184 Wn.2d 509, 359 P.3d

771 (2015); ch. 34.05 RCW.           But a modified standard applies to workers'

compensation appeals. Gorre v. City ofTacoma, 184 Wn.2d 30, 33, 357 P.3d 625


                                           15
Dep't ofLabor & Indus. v. Rowley (Bart), No. 91357-9




(2015). Under that standard, which is discussed in detail in the analysis below, the

superior court presumes the correctness of the Board's decision and can reverse it

only upon finding, by a preponderance of the evidence, that the Board's "findings

and decision are erroneous." Id. at 36 (citing Ravsten v. Dep 't of Labor & Indus.,

108 Wn.2d 143, 146, 736 P.2d 265 (1987)).

      In an IIA appeal from the superior court, the court reviews the record '"to see

whether substantial evidence supports the findings made after the superior court's

de novo review, and whether the court's conclusions oflaw flow from the findings."'

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

(1999)). As always, we review questions of statutory interpretation de novo. Cockle

v. Dep 't of Labor & Indus., 142 Wn.2d 801, 807, 16 P .3d 583 (200 1).

                                    ANALYSIS

       Three questions of law are presented in this case.

       The first is which party bears the burden of proof on the felony payment bar,

RCW 51.32.020. On this question of first impression, the IIA is silent. For the

reasons given in the analysis below, we hold that the Department bears this burden.

       The second question presented implicates the burden of production under

RCW 51.52.050(2)(a), which provides:

              Whenever the department has taken any action or made any
       decision relating to any phase of the administration of this title the

                                          16
Dep 't of Labor & Indus. v. Rowley (Bart), No. 91357-9




      worker, beneficiary, employer, or other person aggrieved thereby may
      request reconsideration of the department, or may appeal to the board.
      In an appeal before the board, the appellant shall have the burden of
      proceeding with the evidence to establish a prima facie case for the
      relief sought in such appeal.

       The Department interprets this statute to mean that an aggrieved party must

ma1<e some affirmative showing that an initial department order is incorrect. It

contends this is a prerequisite to "establish[ing] a prima facie case for the relief

sought in such appeal." Id.

       Rowley and Amicus Washington State Association for Justice Foundation

(WSAJF) disagree. They counter that a claimant establishes a "prima facie case"

for relief on appeal just by presenting evidence that he or she was injured in the

course of employment. Br. of Amicus WSAJF at 13; Suppl. Br. ofResp't at 8.

       For the reasons given in the analysis below, we conclude that in order to

establish a "prima facie case" under RCW 51.52.050(2)(a), a party must make a

viable case that a department decision is incorrect. However, we also conclude that

a party can satisfy this requirement by showing (1) injury in the course of

employment and (2) that the Department's order is unsupported by sufficient

evidence.

       The third question presented is what evidentiary standard applies to the felony

payment bar determination. The Court of Appeals upheld the Board's application

                                           17
Dep'tofLabor & Indus. v. Rowley (Bart), No. 91357-9




of the "clear, cogent, and convincing" standard as a valid exercise of agency

authority to '"fill[] in the gaps' to effect a general statutory scheme." Rowley, 185

Wn. App. at 164-65 (alteration in original) (internal quotations marks omitted)

(quotingHamaHama Co. v. Shoreline Hr'gs Bd., 85 Wn.2d 441,448,536 P.2d 157

(1975)). Because we conclude that there is no statutory "gap" to be filled in this

case, we reverse the Court of Appeals on this issue and hold that the Department

must prove commission or attempt of a felony only by a preponderance of the

evidence.

      I.      When the Department Denies Benefits under the Felony Payment Bar,
            · It Bears the Burden of Proving the Commission or Attempt of a Felony

      No IIA provision expressly allocates the burden of proof on the felony

payment bar, and no case law controls this issue. Thus, this case presents us with a

question of first impression.

      As noted above, the Court of Appeals concluded that the Department bears

the burden of proof on the felony payment bar because it characterized that bar as

an affirmative defense to an otherwise meritorious benefits claim. Rowley, 185 Wn.

App. at 162. That court reasoned that "[p]roof that an industrial injury occurred

during the commission of a felony does not negate any element of an industrial

insurance claim." !d.



                                          18
Dep'tofLabor &Indus. v. Rowley (Bart), No. 91357-9




      Rowley argues that this analysis was correct. He contends that there are three

"element[s]" of a prima facie benefits claim-(1) injury (2) in the course of (3)

employment-and that commission of a felony does not negate any of these

elements.    Suppl. Br. of Resp't at 3-4 (emphasis omitted).                The Department

disagrees. It contends that the Court of Appeals created an arbitrary and confusing

distinction between necessary and unnecessary "elements" of a worker's

compensation claim. Suppl. Br. ofPet'r at 14. 3

       We agree with the Department that the affirmative defense analogy is inapt.

As Rowley acknowledges, an affirmative defense generally excuses a violation

without negating an element of the plaintiffs claim. Kastanis v. Educ. Emps. Credit

Union, 122 Wn.2d 483, 493, 859 P.2d 26, 865 P.2d 507 (1993). But Rowley argues

that the "elements" of a claim under RCW 51.52.050(2)(a) are (1) injury (2) in the

course of (3) employment. Suppl. Br. of Resp't at 1. The felony payment bar



       3
         The Department also cites RCW 51.52.050(2)(c), which provides that "[i]n an
appeal from an order of the department that alleges willful misrepresentation, the
department or self-insured employer shall initially introduce all evidence in its case in
chief." It argues that this statute proves, by logical extension, that "the Legislature intended
to hold an appealing worker to the burden of proof in all cases except when the Department
alleges benefits were received through willful misrepresentation." Suppl. Br. ofPet'r at 8.
We reject this argument. RCW 51.52.050(2)(c) addresses only the order of proof, as
opposed to the burden of proof. Accordingly, the rule that implements that provision is
titled "Order ofpresentation of evidence." WAC 263-12-115(2) (boldface omitted).


                                              19
Dep 't ofLabor & Indus. v. Rowley (Bart), No. 913 57-9




arguably negates the second element: injury while committing a felony is not injury

in the course of employment.

      Indeed, in order to show that he or she is entitled to benefits, a worker must

sometimes negate the deliberate self-injury bar codified at RCW 51.32.020. Mercer

v. Dep 't of Labor & Indus., 74 Wn.2d 96, 101, 442 P.2d 1000 (1968). In Mercer,

the widow of a logger filed a claim for benefits, arguing that a hand injury her

husband sustained in the course of his employment caused him to commit suicide

six months later. Id. at 97-98. The Department denied the claim under the deliberate

self-injury bar, and this court affirmed, reasoning that the plaintiff had not "ma[de]

out a prima facie case" (for entitlement to benefits/relief on appeal). Id. at 101.

Specifically, it held that "[i]n cases such as this, in view of the statutory language

precluding recovery if the workman's death results from his own deliberate intention

to take his life, we have allowed recovery only where [the claimant presents]

competent medical evidence establish[ing] that the decedent acted under an

incontrollable impulse or while in a delirium." I d. (emphasis added) (citation

omitted) (citing Karlen v. Dep't of Labor & Indus., 41 Wn.3d 301, 249 P.2d 364

(1952)).

       The Department contends that we apply this nlle because the deliberate self-

injury bar breaks the chain "'between cause and a proximately related result"' and


                                           20
Dep 't ofLabor & Indus. v. Rowley (Bart), No. 91357-9




thus "negates an element of the cause of action" (injury in the course of

employment). Suppl. Br. ofPet'r at 14 (quoting Schwab v. Dep 't ofLabor & Indus.,

76 Wn.2d 784, 791-92, 653 P.2d 1350 (1969)). Our older cases appear to support

this argument. See Arsnow v. Red Top Cab Co., 159 Wash. 137, 159, 292 P. 436

(1930) (in both common law tort and industrial insurance claims, claimant must

prove that a suicide was "moved by an uncontrollable impulse" in order to show that

it did not break the chain of causation between employment and death). We decline

to overrule Mercer and must therefore reject the Court of Appeals' "affirmative

defense" analysis. 4

       Although we reject the Court of Appeals' affirmative defense analysis, we

affirm its holding that the Department bears the burden to prove that the felony

payment bar applies. Common sense and policy concerns may dictate the allocation

of the burden of persuasion in a civil case. 5 KARL B. TEGLAND, WASHINGTON



       4 The Court of Appeals concluded that because the parties in Mercer, 74 Wn.2d at
101, did not dispute the decedent's suicide, the Mercer court properly allocated the burden
of proof to the claimant-the party who "asserted ... an exception to the suicide bar."
Rowley, 185 Wn. App. at 166. The Court of Appeals explained that this was "[c]onsistent
with our analysis," id., according to which "one asserting the benefits of a general
limitation of a statute has the burden of proof," id. at 163 (citing Stafford v. Dep 't ofLabor
& Indus., 33 Wn. App. 231, 236; 653 P.2d 1350 (1982)). This reasoning ignores the plain
language of the RCW 51 .32.020, which does not bar payments in the event of a suicide,
but in the event of"deliberate" self-injury. (Emphasis added.) Thus, by invoking the self-
injury bar, the Department alleges deliberate self-injury (not suicide).

                                              21
Dep 't ofLabor & Indus. v. Rowley (Bart), No. 91357-9




PRACTICE: EVIDENCE LAW AND PRACTICE § 301.2, at 193 (5th ed. 2007) (where

preponderance standard applies, "[t]rial convenience, access to facts, and substantive

policy are all factors for consideration, but for the most part the burden of persuasion

must be determined on a case-by-case basis"). Common sense dictates that a worker

should not be required to prove a negative-noncommission of a felony-in order

to obtain benefits under the IIA. Indeed, in this case the Department's order denying

benefits did not even mention what the alleged felony was. A worker should not be

required to rebut, with positive evidence and before any hearing occurs, the

Department's bare assertion that he or she has committed a felony.                We do not

interpret the IIA to impose such a burden.

       A contrary conclusion would require courts to presume the commission or

attempt of a felony, a presumption that would offend basic principles of judicial

fairness. 5 Consistent with these principles of fairness, and absent any clear statutory


       5
         See City ofBoston v. Lecraw, 58 (17 How.) U.S. 426,435, 15 L. Ed. 2d 118 (1854)
(because "'the law will not presume any man's acts to be illegal,"' courts "will ascribe long
possession which cannot otherwise be accounted for, to a legal title" (quoting 3 THOMAS
STARKIE,APRACTICALTREATISEONTHELAWOFEVIDENCE 1203 (3ded.l830)));Ricard
v. Williams, 20 U.S. (7 Wheat) 59, 106, 5 L. Ed. 398 (1822) ("the law will not presume a
wrong"); Hall v. Anderson, 18 Wn.2d 625, 636, 140 P.2d 266 (1943) ("'[t]he law will not
presume, unless forced to do so, that a person intends to do an illegal act [and] [i]t will not,
therefore, presume that the parties intended to make an illegal contract'" (quoting Richards
v. Ernst Wiener Co., 207 N.Y. 59, 65, 100 N.E. 592 (1912))); Stevenson v. Woodhull Bros.,
19 F. 575, 576 (W.D. Texas 1884) ("[t]he law will not presume that an act that may lawfully
be done was unlawful in the absence of proof').


                                              22
Dep 't of Labor & Indus. v. Rowley (Bart), No. 91357-9




directive, we hold that the legislature intended to burden the Department with

proving that a felony bars payment under RCW 51.32.020.

       II.   To Establish a "Prima Facie Case for the Relief Sought" in an Appeal
             under RCW 51.52.050(2)(a), a Worker Must Show That the
             Department's Order Was Incorrect, but a Worker Can Meet This
             Requirement by Showing (1) Injury in the Course of Employment and
             (2) That the Department's Order Is Not Supported by Sufficient
             Evidence

       The second question presented in this case is also one of first impression for

this court. It requires us to interpret RCW 51.52.050(2)(a), the statute requiring the

appellant in "an appeal before the [B]oard ... [to] proceed[] with the evidence to

establish a prima facie case for the relief sought in such appeal." As noted above,

the Department interprets this statute to mean that an aggrieved party must make

some affirmative showing that an initial Department order is incorrect.

       We agree that in order to establish a "prima facie case" under RCW

51.52.050(2)(a), a party must show that a department decision is incorrect.

However, we also conclude that a party can satisfy this requirement by showing (1)

injury in the course of employment and (2) that the Department's order is

unsupported by sufficient evidence.

       This is the only viable interpretation ofRCW 51 ;52.050(2)(a) for two reasons.




                                           23
Dep'tofLabor &Indus. v. Rowley (Bart), No. 91357-9




      First, a contrary holding would shift the burden of proof on the felony payment

bar, requiring an aggrieved worker to provide evidence of noncommission of a

felony, even before any formal hearing occurred. (Although RCW 51.52.050(2)(a)

permits an "appeal to the board," an "appeal" from a department order is in fact the

first proceeding at which any evidence is taken.) As explained above, this result

would be inconsistent with basic principles of fairness.

      Second, the Department's interpretation of RCW 51.52.050(2)(a) does not

comport with cases interpreting RCW 51.52.115, the statute that governs IIA appeals

from the Board to the superior court. RCW 51.52.115 provides that "[i]n all court

proceedings under or pursuant to this title the findings and decision of the board shall

be prima facie correct and the burden of proof shall be upon the party attacking the

same." The plain terms of this statute place a greater burden on the appellant than

does RCW 51.52.050(2)(a), the statute at issue in this case.          RCW 51.52.115

provides that the Board's decision is presumed correct on appeal; RCW

51.52.050(2)(a) contains no such provision.        And while RCW 51.52.050(2)(a)

provides that the appellant bears only the burden to come forward with a "prima

facie case for the relief sought" on appeal, RCW 51.52.115 places the "burden of

proof" squarely on the appellant. Nevertheless, this court has held that an appellant

can meet the burden imposed under RCW 51.52.115 just by showing that the


                                           24
Dep't ofLabor & Indus. v. Rowley (Bart), No. 91357-9




Department's order is not supported by sufficient evidence-that is, without

necessarily presenting any new affirmative evidence that the Department's order is

incorrect. Olympia Brewing, 34 Wn.2d at 506. 6 Given the difference in language

summarized above, RCW 51.52.050(2)(a) cannot possibly impose a greater

evidentiary burden on an aggrieved party.

      For all of these reasons, we hold that a worker challenging a Department order

that denies benefits under the felony payment bar establishes a "prima facie case for


      6
         In Olympia Brewing, the Department approved a widow-claimant's application for
benefits solely on the ground that her husband was found unconscious at work and died
shortly thereafter. 34 Wn.2d at 499-500. The employer appealed, and a board hearing
occurred at which only the employer presented any evidence. Id. at 500. This evidence
established that the worker had a heart condition, but did not establish any causal
connection between his work and his death. Id. at 502. Nevertheless, the Board affirmed
the grant of benefits. Id. at 500. The employer appealed, and the superior court affinned.
I d.

       On appeal to this court, the Olympia Brewing claimant made an argument very
similar to the Department's argument in this case, i.e., that her failure of evidence was
"immaterial" in light of the Board's final decision:

             The respondents make another contention. i.e., that the fact that no
      causal relationship has been established between the death and the
      employment is immaterial, because the joint board determined that Mrs.
       Smith was entitled to a widow's pension ... and that determination is prima
      facie correct and must prevail unless and until the employer sustains the
      burden of proving that she is not so entitled.
Id. at 504 (underline added). This court rejected that argument and reversed the grant of
benefits, holding that "one sustains the burden of proving that a decision of the joint board
is erroneous when one demonstrates that there is not sufficient evidence to support it." I d.
(citing St. Paul & Tacoma Lumber Co. v. Dep 't of Labor & Indus., 19 Wn.2d 639, 144
p .2d 250 (1943)).
                                             25
Dep 't of Labor & Indus. v. Rowley (Bart), No. 91357-9




the relief sought on appeal" under RCW 51.52.050(2)(a) by showing (1) injury in

the course of employment and (2) that there is insufficient evidence that the felony

payment bar applies.

       III.   The Court of Appeals Erred by Requiring the Department To Prove the
              Commission or Attempt of a Felony by Clear, Cogent, and Convincing
              Evidence; the Correct Standard Is a Preponderance

       With respect to the evidentiary standard, Rowley repeats the analysis in the

Court of Appeals' opinion. He contends that the Board's "policy decision" is owed

'"great weight"' because it filled a "gap" in the statute the Board is charged with

implementing. Suppl. Br. ofResp't at 9 (internal quotation marks omitted) (quoting

Rowley, 185 Wn. App. at 165 & n.25 (citing llama llama, 85 Wn.2d at 448)). While

we recognize that an agency is entitled to some deference when it interprets an

ambiguous statute it is charged with implementing (when it "'fill[s] in the gaps' via

statutory construction"), llama llama, 85 Wn.2d at 448, we find no gaps or

ambiguity justifying the Board's interpretation in this case.

       Indeed, the Court of Appeals did not identify a statutory gap in this case, it

identified what it perceived as a gap in civil case law. The IIA provision governing

rules on appeal provides that "[ e]xcept as otherwise provided in this chapter, the

practice in civil cases shall apply to appeals prescribed in this chapter." RCW

 51.52.140. And as the Department points out, the preponderance of the evidence


                                           26
Dep't of Labor & Indus. v. Rowley (Bart), No. 91357-9




standard generally applies in civil cases.     Suppl. Br. of Pet'r at 15. Instead of

acknowledging that general rule of civil case law, the Court of Appeals determined

that "[n]o general principle or fixed rule exists [in civil case law] for determining

when to require more than a preponderance of the evidence to prove something."

Rowley, 185 Wn. App. at 163-64. Then, citing one treatise, one case addressing

procedural due process claims, and one case addressing parental rights, the Court of

Appeals concluded that "Washington courts have required proof of facts by clear,

cogent, and convincing evidence in over 30 different types of cases," and that "when

these cases do not involve the loss of liberty or deprivation of a property interest,

they reflect a policy decision." Id. at 164 (citing Bang D. Nguyen v. Dep 't ofHealth,

Med. Quality Assurance Comm 'n, 144 Wn.2d 516, 524-25, 29 P.3d 689 (2001)

(quoting Addington v. Texas, 441 U.S. 418, 424, 99 S. Ct. 1804, 60 L. Ed. 2d 323

(1979))); Am. Prods Co. v. Villwock, 7 Wn.2d 246, 268, 109 P.2d 570 (1941); 5

TEGLAND, supra,§ 301.3, at 200-06 & nn.5-41.

       We disagree. No case cited by the Court of Appeals, or collected in the treatise

it cited, applies the "clear, cogent and convincing" standard to proof of a felony in a

civil case. Rowley, 185 Wn. App. at 164. Most of them apply the long-standing

common law rule that clear and convincing evidence is required to alter or invalidate




                                          27
Dep 't ofLabor & Indus. v. Rowley (Bart), No. 91357-9




a written contract. 7 Several more apply a heightened evidentiary standard as a matter

of statutory law. 8 And the rest apply it because it is constitutionally required (an

argument that Rowley did not raise in this court). 9



       7
         E.g., Pickle v. Lincoln County State Bank, 61 Wash. 545, 547, 112 P. 654 (1911)
(to rescind a contract, common law elements of fraud must be proved by clear and
convincing evidence); Zucker v. Mitchell, 62 Wn.2d 819, 384 P.2d 815 (1963) (oral trust
must be established by clear and convincing evidence); In re Estate of Malloy, 57 Wn.2d
565,358 P.2d 801 (1961) (clear and convincing evidence required to prove undue influence
in the making of a will; note that this rule derives from In re Estate of Geissler, 104 Wash.
452, 456, 177 P. 330 (1918), which states that "[w]ills are favored in the law, and it is a
cardinal principle of construction that the testimony to overcome them must be cogent and
convincing"); Golden v. Mount, 32 Wn.2d 653, 670, 203 P.2d 667 (1949) ("[i]t is a well-
settled rule that a court of equity will not specifically enforce a parol contract concerning
real estate, void because of nonconformance with the statute of frauds, unless the existence
of the contract be established by clear and satisfactory proof'); Cummings v. Sherman, 16
Wn.2d 88, 93, 132 P.2d 998 (1943) ('"[b]ecause ... of the great opportunity for fraud, and
because of reluctance on the part of courts to render ineffective a subsequent will of a
testator, the contract to make mutual wills must be established by clear and convincing
evidence"' (quoting Allen v. Dillard, 15 Wn.2d 35, 45, 129 P.2d 813 (1942))).

       8
          In re Disciplinary Proceeding Against Allotta, 109 Wn.2d 787,792, 748 P.2d 628
(1988) ("[i]n attorney discipline proceedings, state bar counsel has the burden of
establishing an act of misconduct by a clear preponderance of the evidence" (citing RLD
4.1l(b))); In re Disciplinary Proceeding Against Deming, 108 Wn.2d 82, 109, 763 P.2d
639 (1987) ("[i]n a judicial disciplinary proceeding, the applicable standard of proof is
'clear, cogent and convincing evidence"' (quoting JQCR 14(d))); In re Estate ofPeters, 43
Wn.2d 846, 858,264 P.2d 1109 (1953) ("[t]he language ofRCW 11.20.070, requiring that
the provisions of a lost or destroyed will be clearly and distinctly proved by at least two
witnesses, is mandatory and cannot be disregarded by the courts"); Premium Distrib. Co.
v. Int'l Bhd. of Teamsters Union Locall74, 35 Wn. App. 36, 39-40, 664 P.2d 1306 (1983)
(RCW 49.32.070 "requires clear proof of union participation in, authorization of, or
ratification of, contemptuous acts ... in order to impose liability on a union"); RCW
7.48A.030 (a "moral nuisance" action is subject to the burden of proof generally applicable
in civil cases, except that "the standard of proof on the issue of obscenity shall be clear,
cogent, and convincing evidence").

                                             28
Dep'tofLabor & Indus. v. Rowley (Bart), No. 91357-9




      Even if these cases could be said to derive from varying "policy" concerns,

Rowley, 185 Wn. App. at 164, 10 these are policy concerns that the courts-not the

Board-are empowered to address. The Board is required to apply a particular

statute, and that statute says that "the practice in civil cases" shall apply to IIA

appeals, RCW 51.52.140. Civil practice in our state has required proof of a felony

by a preponderance-not by clear, cogent, and convincing evidence. See, e.g., In re

Estate of Kissinger, 166 Wn.2d 120, 128,206 P.3d 665 (2009).

      As noted above and in the Court of Appeals' decision, the Board panel applied

the clear, cogent, and convincing evidentiary standard in part because that standard

applies to the Department's allegations of "'willful misrepresentation"' in benefit-

recoupment cases. Rowley, 185 Wn. App. at 164-65 (quoting In re Rowley, No. 09



      9
         In re Det. of McLaughlin, 100 Wn.2d 832, 834, 676 P.2d 444 (1984) (procedural
due process requires clear, cogent, and convincing evidentiary standard in involuntary
commitment proceedings); Taskett v. IGNG Broad. Co., 86 Wn.2d 439, 447, 546 P.2d 81
(1976) (in defamation suit against press, requirement that private citizen plaintiff show
clear and convincing evidence of common law defamation elements, but not '"actual
malice,"' strikes proper balance between protections under the First Amendment to the
federal constitution and state policy favoring victim compensation).
       10
           The treatise on which the Court of Appeals relied does not actually say that "[n]o
general principle or fixed rule exists for deciding when to require more than a
preponderance of the evidence to prove something." Rowley, 185 Wn. App. at 163-64. In
this part of its opinion, the Court of Appeals appears to have confused the standard of proof
in all civil cases with the burden of persuasion in a case where the preponderance standard
governs. See 5 TEGLAND, supra,§ 301.2, at 193 ("[t]here are no general, fixed tests for
allocating the burden of persuasion among the parties").

                                             29
Dep't of Labor & Indus. v. Rowley (Bart), No. 91357-9




12323,2012 WL 1374566, at *4 (Wash. Bd. Indus. Ins. Appeals Jan. 30, 2012)). In

this case, the panel decided that the same standard should apply when the

Department seeks to prove commission of a felony, in light of the severe

consequences that could follow. CP at 4.

      But the Board's application of the heightened standard in willful

misrepresentation cases does not reflect a policy decision to depart from general civil

practice. Instead, it reflects a decision to adhere to long-standing rules of civil

practice, despite recent amendments to the IIA. When the legislature enacted the

"willful misrepresentation" statute, RCW 51.32.240(5), in 2004, it replaced an older

statute that required the Department to prove that benefits were "fraudulently

obtained." In re FrankL. Hejna, No. 04 24184, 2006 WL 3520132, at *7 (Wash.

Bd. Indus. Ins. Appeals Aug. 28, 2006); LAws      OF    2004, ch. 243, § 7. Consistent

with the rule that civil practice governs in IIA appeals, the Board interpreted the old

statute to incorporate the common law rule that "fraud required proof by clear,

cogent, and convincing evidence." !d. at *8. When the Board first interpreted the

amended (willful misrepresentation) statute, it concluded that the legislature did not

intend to alter that long-standing (common-law-derived) burden. !d. Thus, applying




                                           30
Dep 't ofLabor & lfldus. v. Rowley (Bart), No. 91357-9




the common law preponderance standard in felony payment bar cases is actually

consistent with the Board's decisions in willful misrepresentation cases. 11

      IV.       The Evidence in This Case Is Insufficient To Sustain a Finding That
                Rowley Committed a Felony

       For the reasons given above, the Department bears the burden of proving the

applicability of the felony payment bar by a preponderance of the evidence. The

next question is whether it has satisfied that burden.

       The answer is no. As the Department acknowledges, DUI is not a felony. 12

The only felonious conduct alleged in this case is possession of a controlled

substance. In the criminal context, evidence of intoxication may support a finding

ofprior possession, but only when it is combined with other corroborating evidence

of sufficient probative value. See State v. Dalton, 72 Wn. App. 674, 677, 865 P.2d

575 (1994) (evidence of intoxication was sufficient, in combination with defendant's




       11
          The Board's original decision on the willful misrepresentation statute also cites
to Bang D. Nguyen, 144 Wn.2d at 527-28, a procedural due process case, for the principle
that a higher standard is appropriate to "civil cases 'involving allegations of fraud or some
other quasi-criminal wrongdoing by the defendant."' Hejna, 2006 WL 3520132, at *9
(emphasis omitted) (quoting Nguyen, 144 Wn.2d at 527-28). This is certainly a case of an
individual against a government agency. But Rowley raised no procedural due process
claim before this court.

        12
             The exceptions for felony DUI were not charged or alleged in this case.
                                              31
Dep'tofLabor & Indus. v. Rowley (Bart), No. 91357-9




"close proximity to a beer keg and plastic cups of beer," to sustain conviction for

minor in possession of liquor).

      But that is all we have here. As Judge Stockman recognized at the initial

hearing, the nurses who treated Rowley in the ER testified that they could not

remember if he had clothes on when he arrived; that they could not remember what

his clothes looked like; and that ER staff make no effort to keep track ofnonvaluable

items removed from a patient.           Further, a baggie from which alleged

methamphetamine had been dumped in the sink was arguably recovered from a trash

bag in a room down the hall from where Rowley was being treated, by someone

other than whoever supposedly found it in Rowley's pocket, and it was field tested

and determined to contain residue of "ecstasy or methamphetamine." CP at 974

(emphasis added).    We agree that this evidence does not establish, even by a

preponderance, that Rowley possessed methamphetamine when his truck left the

highway.

      Because we hold that the evidence of possession was insufficient as a, matter

of law, we do not remand to the trial court to reweigh the evidence. See Olympia

Brewing, 34 Wn.2d at 507 (when appellate court is faced with "failure of proof' in

workers' compensation claim, the appropriate disposition is "reversal, with a

direction to deny the claim").


                                         32
Dep 't ofLabor & Indus. v. Rowley (Bart), No. 91357-9




                                   CONCLUSION

      We affirm the Court of Appeals' holding that the Department bears the burden

of proving that the felony payment bar applies. Because the Department bears this

burden, an aggrieved worker establishes a "prima facie case for the relief sought" in

an appeal under RCW 51.52.050(2)(a) ifhe or she can show that the preponderance

of the evidence does not establish the commission or attempt of a felony.

       We reverse the Court of Appeals' holding that the Department must prove the

applicability of the felony payment bar by clear, cogent, and convincing evidence

and hold that the correct evidentiary standard is a preponderance. But we also hold

that the evidence in this case was insufficient to establish commission of a felony

under that standard. Accordingly, we hold that Rowley is entitled to benefits.




                                          33
Dep'tofLabor & Indus. v. Rowley (Bart), No. 91357-9




  WE CONCUR:




c
..................




                                         34
Dept't ofLabor & Indus. v. Rowley (Bart)




                                         No. 91357-9


       MADSEN, C.J. (concurring)-! agree with much of what the majority holds. I

agree that in an appeal of a Department of Labor and Industries (Department) decision

denying benefits, the party appealing has the burden of production to establish a prima

facie case for the relief sought, and that in the present case, this requires the claimant to

make a viable case that the Department's decision is incorrect. I agree that the

appropriate standard of proof in the present case is a preponderance of the evidence. I

also agree that the evidence here is insufficient to show that Bart Rowley Sr. committed a

felony for purposes of applying the felony payment bar contained in RCW 51.32.020

(discussed infra). Accordingly, I agree that Rowley is entitled to benefits. In my view,

however, the claimant seeking benefit payments, not the Department, bears the burden of

proof to show the absence of a felony that would bar benefit payments under RCW

51.32.020.

                                          Discussion

       RCW 51.32.020 provides in part,

       If injury or death results to a worker from the deliberate intention of the
       worker himself or herself to produce such injury or death, or while the
       worker is engaged in the attempt to commit, or the commission of, a felony,
No. 91357-9
(Madsen, C.J., concurring)


       neither the worker nor the widow, widower, child, or dependent of the
       worker shall receive any payment under this title.

(Emphasis added.) Noting the "absen[ce of] any clear statutory directive" and instead

relying on "principles of fairness," the majority holds that "the legislature intended to

burden the Department with proving that a felony bars payment under RCW 51.32.020."

Majority at 22. In my view, that approach is at odds with the general scheme of the

Industrial Insurance Act (IIA or act), Title 51 RCW, as explained in our case law

interpreting the IIA. We long ago held that "while the act should be liberally construed

in favor of those who come within its terms, persons who claim rights thereunder should

be held to strict proof of their right to receive the be11efits provided by the act." Olympia

Brewing Co. v. Dep't ofLabor & Indus., 34 Wn.2d 498, 505,208 P.2d 1181 (1949),

overruled on other grounds by Windust v. Dep 't ofLabor & Indus., 52 Wn.2d 33, 323

P.2d 241 (1958).

       The majority reasons that "a worker should not be required to prove a negative-

noncommission of a felony-in order to obtain benefits under the IIA." Majority at 21.

But we have previously interpreted the intentional injury portion ofRCW 51.32.020 to

place just such a burden on the claimant. In Mercer v. Department ofLabor &

Industries, we explained:

        in view of the statutory language [in RCW 51.32.020] precluding recovery
        if the workman's death results from his own deliberate intention to take his
        life, ... we have allowed recovery only where [the claimant presents]
        competent medical evidence establish[ing] that the decedent acted under an
        incontrollable impulse or while in a delirium ..




                                               2
No. 91357-9
(Madsen, C.J., concurring)


74 Wn.2d 96, 101, 442 P.2d 1000 (1968) (emphasis added). In other words, in Mercer,

applying RCW 51.32.020, we imposed the requirement that the claimant must prove a

negative-that the deceased's taking his own life was not the result of his deliberate

intentional act. I see no reason why we should retreat from imposing the same

requirement when applying another portion of the same statute in the present case. While

the majority maintains that requiring the claimant here to "prove a negative" is unfair,

majority at 21, we have already imposed that burden in the even more difficult context of

a person who is deceased. See Mercer, 74 Wn.2d at 101. 1 Indeed, placing the burden on

the claimant here would promote uniformity and predictability in application of the IIA.

       The majority contends that "[c]ommon sense dictates" that the burden be placed

on the Department here. Majority at 21. But again, the approach that comports with our

case law "dictates" that the burden here, which concerns the claimant's establishing his

right to benefits, should be borne by the claimant. See, e.g., Knight v. Dep 't ofLabor &

Indus., 181 Wn. App. 788, 795-96, 321 PJd 1275 (in a claim for workers' compensation

benefits, the injured worker bears the burden of proving that he is entitled to benefits),

review denied, 181 Wn.2d 1023 (20 14); Robinson v. Dep 't ofLabor & Indus., 181 Wn.

App. 415, 426, 326 PJd 744 (workers' compensation claimant bears the burden of

establishing eligibility for benefits), review denied, 337 PJd 325 (2014). Again, the


 1
  See also Gatterdam v. Dep't of Labor & Indus., 185 Wash. 628,635,56 P.2d 693 (1936)
(approving jury instructions (1) that placed burden on claimant to prove that deceased worker's
death by suicide was the result of insanity, which was caused by industrial injury, and (2) that
directed that "unless the death of [worker] was the result of an uncontrollable impulse, in no way
directed by the mind, then the plaintiff [claimant] cannot recover").

                                                3
No. 91357-9
(Madsen, C.J., concurring)


general scheme of the IIA argues in favor of placing the burden here on the claimant

rather than the department. For instance, RCW 51.52.050(2)(a) provides:

       Whenever the department has taken any action or made any decision
       relating to any phase of the administration of this title the worker,
       beneficiary, employer, or other person aggrieved thereby may request
       reconsideration of the department, or may appeal to the board. In an
       appeal before the board, the appellant shall have the burden ofproceeding
       with the evidence to establish a prima facie case for the relief sought in
       such appeal.
(Emphasis added); see also Zoffv. Dep 't ofLabor & Indus., 174 Wash. 585, 586,25 P.2d

972 (1933) ("The decision of the department was prima facie correct, and the burden was

upon the one attacking that decision to overcome the same by evidence."); Hastings v.

Dep 't ofLabor & Indus., 24 Wn.2d 1, 5, 163 P .2d 142 (1945) ("The first rule is that the

decision of the department is prima facie correct and the burden of proof is upon the

party attacking the decision.").

       As noted, we have long held that the burden of establishing eligibility for workers'

compensation benefits lies with the claimant. See Kirk v. Dep 't ofLabor & Indus., 192

Wash. 671, 674, 74 P.2d 227 (1937) ('"Persons entitled to the benefits of the act should

be favored by a liberal interpretation of its provisions, but for this very reason they should

be held to strict proof of their title as beneficiaries."' (quoting Okla. Nat. Gas Co., 1923

OK 311, 91 Olda. 39, 42, 216 P. 116)); Guiles v. Dep 't of Labor & Indus., 13 Wn.2d 605,

610, 126 P.2d 195 (1942) ("We are mindful of the rule that the burden rests on claimant

to prove every element of his claim by a preponderance of the evidence."); Cyr v. Dep 't

ofLabor & Indus., 47 Wn.2d 92, 97,286 P.2d 1038 (1955) ("'persons who claim rights



                                              4
No. 91357-9
(Madsen, C.J., concurring)


[under the IIA] should be held to strict proof of their right to receive the benefits provided

by the act"' (quoting Olympia Brewing, 34 Wn.2d at 505)); Lightle v. Dep't ofLabor &

Indus., 68 Wn.2d 507, 510,413 P.2d 814 (1966) ("We have held that a liberal

construction of the act does not dispose of the requirement that a claimant must prove his

claim by competent evidence."). As can be seen, in.matters concerning eligibility for

workers' compensation benefits, absent a specific exception, 2 the burden of proof has

consistently been placed on the claimant asserting the right to such benefits. I would not

alter application of that burden in the present case.




2
 See RCW 51.52.050(2)(c), which provides:
      In an appeal from an order of the department that alleges willful
      misrepresentation, the department or self-insured employer shall initially
      introduce all evidence in its case in chief Any such person aggrieved by the
      decision and order of the board may thereafter appeal to the superior court, as
      prescribed in this chapter.
(Emphasis added.)


                                                5
No. 91357-9
(Madsen, C.J., concurring)




                                   )



                             21W~f,q,




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