                                                                                              r.
                                                                                                            FILED
                                                                                                     U i OF' APPE" I S
                                                                                                          DIVISION I1

                                               20111 JUL 15 Art10: 1a1
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                                                             S       rE        1:       ON

                                             DIVISION II ,                                       Y           t4 `"°,,

                                                                                                           OERUTY
EDWARD O. GORRE,                                                           No. 43621 -3 -II \ \ \


                 Appellant and
                Cross Respondent,


       v.



CITY OF TACOMA,                                            ORDER AMENDING ORDER GRANTING
                                                                      RECONSIDERATION
                                                              IN PART AND AMENDING OPINION


                 Respondent and
                 Cross Appellant,


DEPARTMENT OF LABOR AND
INDUSTRIES,


                 Respondent.




       The court amends the first and second sentences of the first paragraph of the Order


Granting Reconsideration in Part and Amending Opinion, filed today, July 8, 2014, to correct a

date and to substitute " published" for " unpublished" so that these sentences now read as follows:

                 Respondent Department        of   Labor &    Industries ( Department) has filed a
       motion    for   reconsideration of our published opinion       filed   on   April 23, 2014.        We
        grant   the    Department'   s   motion   for   reconsideration,   in   part,   by making the
        following changes to our published opinion filed April 23, 2014•

        IT IS SO ORDERED.


        DATED this /       y' /   ay of
                                                   1




For the Court:
Hunt, P. J., Worswick, J., Penoyar, J. P. T.
                                                                                                 CO IR   o`     A PDPEA }
    IN THE COURT OF APPEALS OF THE STATE OF WASfNdTON
                                         CCI' JUL - 8
                                                      fi 1Q: f 8
                                                             DIVISION II
                                                                                                STATE OF WASHINGTON
EDWARD O. GORRE,                                                                             NQsp, 43621 -3 -L
                                                                                                              1 V. Y
                       Appellant and
                      Cross Respondent,


       v.




CITY OF TACOMA,                                                            ORDER GRANTING RECONSIDERATION
                                                                               IN PART AND AMENDING OPINION


                       Respondent and
                       Cross Appellant,


DEPARTMENT OF LABOR AND
INDUSTRIES,


                       Respondent.




       Respondent Department                      of    Labor &        Industries ( Department) has filed a motion for


reconsideration            of our published        opinion        filed   on   May   7, 2014.    We grant the Department' s


motion for reconsideration, in part, by making the following changes to our unpublished opinion

filed April 23, 2014:


            1)       On    page   3,   we   modify the first      sentence of     footnote 3,   which reads, "     In so doing, we

note that the following existing evidence in the record is insufficient to rebut the presumption

that Gorre'      s   Valley Fever        is   an occupational      disease     under   RCW 51. 32. 185," as follows:


       We            add   the    phrase "     before   us   on    appeal"     after "   we note that the following existing

evidence "; and we               delete the     word "   is" before " insufficient"         and replace "   is"   with " appears."




With these changes, the first sentence of footnote 3 now reads:


                       In so doing, we note that the following existing evidence in the record
        before us on appeal appears insufficient to rebut the presumption that Gorre' s
        Valley         Fever is        an occupational       disease   under    RCW 51. 32. 185"
No. 43621 -3 - II



         2) On page 40, we delete footnote 50, which states:


        An administrative court is not bound to follow the civil rules of evidence; on the .
        contrary, relevant hearsay evidence is admissible in administrative hearings.
        Nisqually Delta Ass' n v. City of Dupont, 103 Wn.2d 720, 733, 696 P.2d 1222
         1985); Pappas         v.Emp' t Sec. Dept., 135 Wn. App. 852, 857, 146 P. 3d 1208
         2006); Hahn      v.   Dep' t of Ret. Sys., 137 Wn. App. 933, 942, 155 P.3d 177 ( 2007).
        See   also   RCW 34. 05. 452( 1),   which summarizes the relaxed evidentiary standards
        in administrative hearings and broad discretion for the presiding officer.

With these changes, footnote 51 on the following page shall be renumbered to footnote 50.

        We otherwise deny the Department' s motion for reconsideration.

        IT IS SO ORDERED.




                                                       2
                                                                                            CURT OF APPEALS
                                                                                                  OlY1Slou it •

   IN THE COURT OF APPEALS OF THE STATE OF2kathiCtilaN2 9
                                                                                            STATE OF WASHINGTON
                                                      DIVISION II

                                                                                                         IT`(
EDWARD O. GORRE,                                                                     No. 43621 -3   of
                    Appellant and
                   Cross Respondent,


        v.



CITY OF TACOMA,                                                                PUBLISHED OPINION


                    Respondent and
                    Cross Appellant,


DEPARTMENT OF LABOR AND
INDUSTRIES,


                    Respondent.




          HUNT, J. —     Tacoma firefighter Lieutenant Edward O. Gorre appeals the superior court' s

affirmance of the Board of Industrial Insurance Appeals' denial of his occupational disease claim

under   RCW 51. 32.
                         1851_
                                    Gorre      argues    that   we   should reverse     because ( 1)   he had separate


diagnoses     of "    Valley     Fever"        and    eosinophilic    lung   disease,    which qualified for RCW

51..32.185'   s   evidentiary    presumption of occupational            disease for firefighters; ( 2) the Board and


the Department of Labor and Industries ( Department) failed to apply this statutory presumption

of occupational disease, which improperly shifted the burden of proof to him ( rather than



1 We acknowledge that at the time Gorre filed his first claim for benefits, April 2007, the 2002
version of        RCW 51. 32. 185    was       in   effect.   Shortly thereafter, the statute was amended in July
2007, adding         sections   6   and   7,    which    discuss the definition.     of "firefighting activities" and
attorney fees, respectively.              RCW 51. 32. 185( 6)          and (   7).   Because these 2007 statutory
amendments did not substantively affect the legal issues here, we reference the new statute as the
parties   do in this   appeal.
No. 43621 -3 -II



                          City        Tacoma to            this   presumption);   and ( 3) the evidence failed to
properly requiring the           of                rebut




rebut the presumption that he did not have an occupational disease that arose naturally and

proximately from the course of his employment.

       The City of Tacoma cross appeals ( 1) the superior court' s finding that Gorre was not a

smoker,    which would preclude         application   of    the statutory evidentiary          presumption; (     2) the


superior   court' s   consideration    of.   Gorre' s evidence      outside   the Board'   s    record;   and (   3) the


Board' s failure to award. the City' s deposition costs incurred before the Board.

        We reverse the superior court' s findings of fact and conclusions of law that ( 1) Gorre did

not have an occupational disease under RCW 51. 08. 140 based on its improper finding that he

failed to prove a specific injury during the course of his employment, (2) Gone did not contract

any respiratory .conditions that arose naturally and proximately from distinctive conditions of his
employment with the City, and ( 3) the Board' s decision and order are correct; we also reverse

the underlying corresponding Board findings.               Holding that the superior court did not abuse its

discretion in failing to strike Gorre' s evidence, we affirm the superior court' s finding that Gorre

was not a smoker. Further holding that both the Board and the superior court erred in failing to
                                                                                   disease to Gorre'      s   claim, ( 1)
 apply RCW 51. 32. 185'     s   evidentiary    presumption of occupational




 we reverse both the Board' s denial of Gorre' s claim and the superior court' s affirmance of the

 Board' s denial2; and ( 2) we remand to the Board with instructions to follow RCW 51. 32. 185, to




 2 Because we reverse and remand, we do not address the City' s argument that the superior court
 abused its discretion in denying the City' s request for deposition costs.



                                                            2
No. 43621 -3 -II



accord Gorre the benefit of this presumption, and to shift to the City the burden of rebutting the
                                                                                             3
presumption of occupational         disease   by a preponderance of the         evidence.




                                                         FACTS


                                    I. BACKGROUND AND MEDICAL HISTORY

         Edward Omar Gorre            grew         and   lived for 18   years    in Fair Oaks, California.         After
                                             up


                                      he              California                 Gorre served in the United States
graduating from high       school,         attended                 colleges.




Army in Operation Desert Storm from 1988 to 1990, when he returned to California and lived in
Sacramento for -
               four       years.     In 1997 Gorre moved to the Tacoma area, where he worked as a

professional firefighter andfirefighter paramedic for the City of Tacoma from March 17, 1997,

to   May 2007. As a prerequisite for this employment, Gorre passed a demanding test of physical

strength and stamina and a physical examination that included blood testing and x-rays. -. n 2000
                                                                                         I

he became a firefighter paramedic; in 2007 he became a fire medic lieutenant.

          Over the course of his career as a firefighter and paramedic, Gorre responded to

thousands     of   residential,   commercial,       industrial,    and wild   fires.   His duties also included fire


 suppression, search and - escue, and " overhaul,"
                         r                                     which involves looking for seeds of fire tomake

 sure   the fire does   not start   up   again.    Administrative Record ( AR)         at   1055.    He was exposed to


 smoke,    diesel,   chemicals, and mold when            responding to fire      calls, "   Hazmat "4 calls ( hazardous

 material spills),    lockouts ( from      cars and    houses),    daily building inspections, car incidents, and


 3 In so doing, we note that the following existing evidence in the record is insufficient to rebut
 the   presumption    that Gorre' s   Valley      Fever is   an occupational    disease     under   RCW 51. 32. 185: ( 1)

 that Valley Fever is not native to western Washington, and ( 2) that Gorre travelled to Nevada
 during his employment as a City firefighter.

 4ARat1058.



                                                               3
No. 43621 -3 -I1



medic calls.     Such exposures frequently placed him in close contact with patients with fever,

H1N1 flu
             virus5,




                       and other   respiratory diseases.    Gorre did not wear respiratory protection when

he fought wildfires, inspected manufacturing plants, dug trenches, or responded to medical calls.

                                                                                          SCBA)
                                                                                                            overhauls6;




Similarly,   Gorre did     not wear a " self-contained     breathing    apparatus" (               during

instead, his face was completely exposed. AR at 1055,

         Between 2000         and   2005,   Gorre   and    his     colleague,     Darrin S.      Rivers, travelled to


California and Las Vegas several times for vacation, including a trip to Las Vegas in November

2005.    Two years later, beginning in February or March 2007, after ten years on the job, Gorre

experienced     fatigue,   night sweats,    chills, and    joint   aches.    On April 17, he filed an accident


report with the City, stating that during a lung biopsy his physician, Dr. Paul Sandstrom, had

found evidence of an inhalation injury. Dr. Sandstrom' s biopsy revealed upper lobe pulmonary

                                     lesions$. Dr. Sandstrom referred Gorre to Dr. Christopher Goss, a
infiltrates7
               and granulomous




pulmonary      specialist,   who began treating Gorre           on   May    2;   after   his   lung biopsy. Dr. Goss

initially diagnosed Gorre with hypersensitivity pneumonitis, a respiratory disease, and treated
him with steroids; almost a year later, on March 19, 2008, Dr. Goss again saw Gorre and



 5 H1N1, also known as the avian flu or swine flu, infects the human upper respiratory tract. See
 http://www.cdc.gov/h1n1flu/qa.htm.

 6 It was not common practice amongst firefighters to wear an SCBA for overhaul; and the City
 did not require them until 2007.

 7
     A " pulmonary infiltrate"is a descriptive term used by radiologists to describe an abnormal
 density (such as pus or fluid) or infection yin the lungs.
 See http : /www.aic.cuhk.edu.hk/web8/ Very %20BASIC %
              /                                       20CXR %201ungs.html.
 8 " Granulomous lesions" in the lungs refer to chronic inflammations.
 See http:// www.mrcophth . om/pathology /granuloma.html.
                          c

                                                            4
No. 43621 -3 -II



continued to believe that the respiratory disease affecting Gorre was hypersensitivity

pneumonitis.



          The next month, in April, Gorre saw a dermatologist, who evaluated a nodular skin lesion

on    his forehead.        Its biopsy showed that Gorre had coccidioidomycosis, also known as " Valley

Fever. "  9 Dr. Paul Bollyky, from the University of Washington Infectious Diseases Clinic, also
diagnosed Gorre        with   Valley Fever10 and initiated therapy.

                                                    II. PROCEDURE


         A. Adminsitrative Denial of Industrial Insurance ( Workers' Compensation) Benefits

           Gorre filed a form with the City reporting his occupational injury; he also filed an

application for workers' compensation benefits with the Department of Labor and .Industries. He

reported that Dr. Sandstrom had " found evidence of [an] inhalation exposure upon biopsy of

lungs "11;   but he did not include medical testimony, doctors' notes, or records to support his claim

of    inhalation   exposure.      In the application blank asking for the address where his 'injury had

 occurred, Gorre did not specify a location. Gorre also submitted Dr. Peter K. Marsh' s evaluation

 9ARat3.

 10
      Valley Fever is caused by Coccidioides immitis, a fungus organism that lives in sterile soil in
 desert areas such as Mexico, the Sonoran desert and other areas of California and Arizona,
 Nevada,       and other     southwestern states.    This organism produces spores that become airborne
 when the soil is disturbed; when inhaled, these spores cause Valley Fever in humans. Symptoms
 of Valley Fever surface between two to six weeks on average after exposure and include flu like
 symptoms or a        transient   lung   disease that   affect a patient' s   respiratory functions.   Although the

 medical experts in this case explained that Valley Fever was not endemic to Washington State as
 of    2010,    recent      Coccidioides   diagnoses have        been   reported    in   eastern   Washington,   and

 Coccidioides immitis (the fungal cause of Valley Fever) has been recently identified in eastern
 Washington        soil.                          King County Public Health health advisory report
                            See April 4, 2014, Seattle &

  http: / www.kingcounty. gov/ healthservices /health/ communicable /providers. aspx).
          /

 11 AR: at872.


                                                             5
No. 43621 -3 -II



that Gorre had Hepatitis C         exposure, which was        likely work related.
                                                                     .                 The City requested Gorre' s
medical report, records, and chart notes from Dr. Sandstrom and Edmonds Family Medicine; but

it received no response.


        The     City    denied Gorre' s      lung   disease   claim.      In February 2008, the Department also

denied Gorre' s lung disease claim, saying it was not an occupational disease under RCW

51.08. 140.            Gorre     requested     reconsideration,          asserting   that    he   had    eosinophilic




pneumonia/ hypersensitive           pneumonitis,      which were lung diseases considered presumptive

occupational         diseases   under   RCW 5132. 185( 1)(         a).   On March 26, the Department issued an


order stating that the City was responsible for Gorre' s .Hepatitis C exposure and for Gorre' s
interstitial   lung     disease,   finding    that both   hepatitis       C12 and interstitial lung disease were

occupational -
             diseases and that the City would pay Gorre all medical and time loss benefits.

         In September 2008, the City asked Dr. Garrison Ayars to determine Gorre' s condition

and to consider the RCW 51. 32. 185 statutory presumption' of occupational disease for
                13
firefighters.         In October, the City sent Dr. Ayars' evaluation to Dr. Goss, stating that if Dr.
 Goss did not respond, the City would assume he concurred with Dr: Ayars' evaluation. In March

2009, Dr. Goss responded that he disagreed with Dr. Ayars' evaluation.




 12 The next month, however, the Department sent notification that it would be issuing a new
 order stating that it could not include Gorre' s hepatitis C with his lung disease claim.
 13 RCW 51. 32. 185 creates a presumption of occupational disease for firefighters who have
                                                                   infectious diseases.     RCW 51. 32. 185( 1).   If a
 respiratory disease, heart        problems,    cancer, and

 firefighter qualifies for this statutory presumption, the burden of proof shifts to the employer to
 show by a preponderance of the evidence that the firefighter' s condition does not qualify as an
 occupational disease. RCW 51. 32. 185( 1).



                                                               6
No. 43621.3 -II



       On March 24, 2009, the Department ( 1). cancelled its March 26, 2008 order stating that

the City was responsible for Gorre' s interstitial lung disease; and ( 2) instead denied Gorre' s

claim on grounds that there was no proof of specific injury, his condition was not the result of

industrial injury, and his condition was not an occupational disease under RCW 51. 08. 140.

                          B. Appeal to Board of Industrial Insurance Appeals

       Gorre appealed to the Board of Industrial Insurance Appeals and moved for summary

judgment. He argued that ( 1) he was entitled to the presumption of occupational disease set forth

in RCW 51. 32. 185; (    2) the Department had failed to apply this RCW 51. 32. 185 presumption of

occupational disease; and ( 3) under RCW 51. 32. 185, the burdens of proof, production, and

persuasion rested on the City. The City responded with declarations from Dr. Emil. Bardana, Dr.

Ayars, Angela Hardy, Britta Holm, and Jolene Davis, among others.

                             1. Industrial Appeals Judge hearing and ruling

        The Board' s Industrial Appeals Judge ( IAJ) ruled that for the statutory occupational

disease presumption to apply, Gorre had to provide at least some supporting medical information

or an affidavit   from   one of   his doctors —some evidence other than a mere allegation that he had a


lung condition.14 The IAJ denied Gorre' s motion for summary judgment because he had failed
to provide such medical evidence to support his motion.

        Gorre brought' a second motion for summary judgment, this time attaching 39 exhibits,

 which included a medical report and declaration from Dr. Goss, a copy of Rose Environmental' s

 mold inspection at Gorre' s residence, Dr. Royce H. Johnson' s deposition, and correspondence




 14 Gorre conceded that he had not submitted any affidavits or declarations with his motion for
 summary judgment.
No. 43621 -3 -11



between Gorre       and    the   City. The IAJ ruled that ( 1) interpretation of' RCW 51. 32. 185 was a

matter of first impression, (2) whether Valley Fever is a respiratory disease or infectious disease

is a question of fact, and ( 3) the Department had acted appropriately and had " correctly applied

the presumption "
                      15
                           because "   Valley [ F] ever is   not enumerated   in the   statute. "   16 Administrative

Report       Proceedings
          of ,                   ( ARP) ( Mar. 8, 2010)        at   88834.   Instead of applying the statutory

presumption of disease for firefighters, RCW 51. 32. 185, the IAJ elected to treat Gorre' s case as a

            17
 normal "        occupational disease claim under RCW 51. 08. 140; this election shifted to Gorre the

burden of proving that during the course of his employment he had suffered an occupational

exposure that caused his Valley Fever. The IAJ held hearings in June and July 2010. •

                                                a) Gorre' s deponents


                                 Dr. Christopher H. Goss ( deposed May 6, 2010)

          Dr. Goss, a University of Washington associate professor of medicine and an adjunct

 associate professor of pediatrics, is board certified in pulmonary medicine; he specializes in

 pulmonary       and critical care, and .pediatrics.         He began treating Gorre in May 2007, after Dr.

 Sandstrom referred Gorre for a review of Gorre' s lung biopsy and for an opinion on the possible

 etiology    of   Gorre'   s   eosinophilic   lung   disease.'$     Gorre first reported symptoms of fevers,




 15
      Administrative Report       of Proceedings     ( ARP) ( Mar. 8, 2010) at 88835.


 16 The Department never issued a ruling under RCW 51. 32. 185.

 17 ARP (Mar. 8, 2010) at 88835.

 18 We note that the IAJ decision and Board decision refer to the depositions and declarations of
 Dr. Goss, Dr. Paul Bollyky, and Dr. Johnson as " testimony" and state that they " testified." But
 the transcript does not reflect that they gave live testimony at the hearing in lieu of or in addition
 to their deposition testimonies and declarations. See AR at 122 -23.


                                                              8
No. 43621 -3 -1I



dyspnea, an abnormal chest x -ay, an abnormal chest computerized tomography ( CT) scan, and a
                             r

positive response     to   antibodies    in his   serum.   Dr. Goss interpreted Gorre' s biopsy report as

consistent with hypersensitivity pneumonitis, a lung disease that qualified as a respiratory

disease in patients sensitive to aeroallergens.


        At the time Dr. Goss treated Gorre, Gorre had a bump that was not biopsied until months

later, which later developed into Valley Fever. Dr. Goss hypothesized that Gorre had developed

two   diseases: (    1)    initially, eosinophilic lung disease, likely contracted from exposure to

aerosolized dust from his fire fighting duties; and ( 2) Valley Fever, likely contracted as a youth

in California and lying dormant/without symptoms but later disseminated by the steroids used to
treat Gorre' s eosinophilic lung disease. Dr. Goss defined " eosinophilic lung disease" as a broad

category of lung diseases that present with pulmonary infiltrates and eosinophils ( a specific kind
of white   blood    cell);   Dr. Goss stated that eosinophilic lung disease is a respiratory disease.

Administrative Record Exhibits (ARE) at 18877.


        Dr. Goss further opined that more probably than not, Gorre' s initial lung condition

 related to his employment as a firefighter, and that Gorre did not contract Valley Fever in

 Washington     state.       Dr. Goss referred Gorre to the University of Washington' s Infectious

 Diseases Clinic for Valley Fever treatment.

                               Dr. Royce H. Johnson ( deposed January 7, 2010)

         Dr. Johnson, a licensed medical doctor since 1971 and board certified since 1974, was

 Chief of Infectious Diseases and Chair of the Department of Medicine at California' s Kern

 Faculty   Medical         Group   and    Kern • Medical       Center.   He ran a large Valley Fever

  coccidioidomycosis) clinic in California; and he has published papers and book chapters and



                                                           9
No. 43621 -3 -II



lectured extensively     on   Valley   Fever.      Dr. Johnson opined that Valley Fever is transmitted

through inhalation exposure to arthroconidia (fungal spores) in the soil, which can travel up to 75

miles; arthroconidis " set up housekeeping" in the lungs and usually cause pneumonic disease,

sometimes eosinophilic lung disease. AR at 1164. Valley Fever symptoms take about two to six

weeks   to   appear   from the time      of exposure.       According to Dr. Johnson, Valley Fever occurs

throughout the southwest United States, northwest Mexico, Central America, and in South

America, not anywhere outside the western hemisphere, and in general not as far north as the .

state of Washington.


        When he treated Gorre in          January 21,      2009, 19   Dr. Johnson did not agree with Dr. Goss' s

theory that Gorre' s ingestion of steroids during his eosinophilia treatment had disseminated a
dormant      cocci   organism;   instead, it    was   the     other   way   around — the cocci had caused the


pneumonia with eosinophilia         to    develop. Nevertheless, Dr. Johnson opined that, more likely

than not, Gorre had acquired Valley Fever as part of work activity with the City of Tacoma Fire
Department, notably      when    dealing    with   fires   and vehicle problems on     1 - 5.   Dr. Johnson further


 opined that even though Valley Fever is not endemic to Washington, it is possible for cocci spore
 to spread through importation of substances into Washington.

                                                b) Gorre' s witnesses


                                                           Gorre


         Gorre testified that during his career as a City firefighter and emergency medic, he

 responded to about 3; 000 residential fires and engaged in various activities such as pulling down



 19 Dr. Johnson did not have Gorre' s medical records before Dr. Ayars' September 3, 2008 report.



                                                             10
No. 43621- 3- 11



ceilings, ripping out walls, and crawling through and moving furniture looking for fire survivors.
He had also responded to about 600 industrial fires and 2,500 vehicle, dumpster, electrical, and

hazardous fires; and he had encountered 6, 000 exposures to chemicals and 15, 000 exposures to

diesel fumes.       Most of the tine, he, like the other firefighters, did not wear a self -
                                                                                           contained

breathing apparatus ( SCBA), which directly exposed him to smoke, fumes, and toxic substances.
Gorre similarly lacked respiratory protection when ( 1) entering houses containing cat and human
feces; (   2) responding to calls in nursing homes, where he had close contact with patients with

respiratory diseases; (    3) inspecting chicken processing plants, where he was exposed to chicken

feathers    and   droppings; ( 4)   inspecting   wood   manufacturing plants filled   with sawdust; (   5) deep

trenching into soils to set up rigging systems; and ( 6) fighting wildfires.
           Gorre' s fire fighting job with the City also required him to dig foundations for rescue
operations at construction sites.        He frequently responded to multiple casualty incidents on the

main I - corridor, rescuing and assessing victims and suppressing tractor trailer fires; these
       5

freeway calls exposed him to blood, muck, dirt, diesel exhaust, and brake dust. Gorre was also
 exposed to various molds: There was green mold growing around the windows and covering the

 air conditioner filters at the fire station where he worked; he was also exposed to mold and

 different mushroom spores of mushrooms growing on walls at various houses to which he was

 called for emergency response. Gorre further testified that he was not a smoker. Gorre had tried
 a cigarette once in fourth grade and in high school, smoked cigars on special occasions, and

 chewed tobacco when he played baseball.




                                                          11
No. 43621 -3 -I1



                                                Darrin S. Rivers


                               for the               Gorre'       Emergency Medical Technician   partner.   He
       Rivers had     worked             City   as            s




testified that off duty, he and Gorre had travelled to California and Nevada several times between

2000 to 2005, and that they had made a couple houseboat trips to Lake Shasta in 2000 and 2001

and a couple trips to Las Vegas to play golf.

        Rivers testified that in their line of work, firefighters are exposed to all forms of

particulates   from   residential and commercial        fires.     When responding to house fires, firefighter

paramedics are exposed to smoke from combustion products, such as wood and wood frames,

and toxic chemicals from the burning of couches, polyesters, clothing, carpet, and drapes.

Depending on the type of structure or business, commercial fires expose . firefighters to
chemicals,     acetones,   and paints,   among       other    products   of combustion:    For example, as a

firefighter, Rivers had been exposed to animal feces all over the floors, mold and fungi growing

 on carpets, and hazardous material spills. Firefighters do not always wear SCBA: For example,

 it was common practice for firefighters not to wear SCBA when responding to medical calls or

when tearing out ceilings to look for small hidden fires during an overhaul. Even if a firefighter
 wears SCBA, after taking it off, the firefighter still exposes himself to soot and products of

 combustion that linger on helmets and bunker gear.


        When responding to emergency medical service calls, firefighters come in close contact

 with patients who have respiratory infections and with infectious bacteriological or viral disease

 processes.    When responding to freeway collisions, firefighters are exposed to fuel and other
 spills, antifreeze, and materials blown by freeway speed traffic.




                                                             12
No. 43621 -3 -II



                                                        Glen Zatterberg


           Zatterberg, a City firefighter, testified that firefighters were exposed to mold in various
                                            20
circumstances at "          Station No. 9 "      where    Gorre   worked: (   1) Station 9 had aluminum windows


that collected condensation, and mold would be found around those windows; and ( 2) Station 9

also had in-window air conditioning units, whose filters were not cleaned regularly and which

developed     mold problems.            Firefighters were also exposed to inhaling diesel exhaust and house

fires. .   During initial deployment, firefighters would not wear SCBA until they entered a

building' s    interior.       And before 2007, firefighters were not required to wear SCBA when


removing ceilings and looking for places with hidden fires during overhauls.
                                                       Matthew Simmons


           Simmons, an ' employee of Rural Metro Ambulance, testified that he had been on

numerous       calls    with      Gorre.    Simmons described the sick patients and poor conditions of


residences     that Gorre         and   Simmons faced in their line         of work:   Simmons .mentioned he had


similar respiratory symptoms and health problems, but the Board disallowed this specific

testimony about Simmons' health conditions.

                                            c) City' s deponent and witnesses

                                   Dr. Paul Laszlo Bollyky (deposed June 25, 2010)


            Dr. Bollyky is a physician researcher at the Benaroya Research Institute and an infectious
 disease doctor        at   the   University     of   Washington.      He stated that ( 1) most people with Valley

 Fever end up contracting the flu or a transient lung disease that rarely requires any therapy, and

  2) there was no way to tell where and how a patient had acquired Valley Fever. Dr. Bollyky


 20 ARP (June 7, 2010) at 88133.


                                                                  13
No. 43621 -3 -II



treated Gorre after his biopsy tested positive for Valley Fever. When he wrote Gorre' s medical
report in March 2009, Gorre' s Valley Fever diagnosis was uncontroverted and it was Valley

Fever that probably caused the symptoms that Gorre' s doctors initially diagnosed. Dr. Bollyky

further opined it was unlikely that steroid injections could disseminate Valley Fever, that Valley

Fever was not endemic to western Washington, that all his Valley Fever patients had either

travelled to or migrated from a Valley Fever endemic area, and that in light of Gorre' s having

lived in California and traveled to places where coccidioidomycosis was endemic, the most

likely probability was that he had acquired Valley Fever in those places.
                                      Dr. Garrison H. Ayars


        Dr. Ayars, an allergy and immunology physician, testified that Valley Fever is endemic

to the Sonoran desert, California,   southern   Nevada, Arizona, New Mexico,     and   Texas.   He


described Valley Fever symptoms as pulmonary symptoms that generally occur within one to

three weeks of exposure, but which do not surface until years later for some individuals.

 Although not personally aware of any Valley Fever cases in Washington state, he had reviewed

 department of health records reporting that there were 15 Valley Fever cases in Washington

 within a ten - ear period, the majority of which had involved Valley Fever acquired outside
              y

 Washington.


        Dr. Ayars started treating Gorre in September 2008, at which time he had Gorre' s

 medical records from Drs. Goss and Johnson, plus Gorre' s records from Edmonds Family

 Medicine, Tacoma General, Lakeshore Clinic, University of Washington, and the Skin Cancer

 Clinic of Seattle. Dr. Ayars felt that Gorre had no acute significant inhalation exposure or lung

 injury. Dr. Ayars disagreed with Dr. Goss' s opinion that Gorre' s ingestion of treatment steroids


                                                 14
No. 43621 -3 -11



had caused his Valley Fever to disseminate; Dr. Ayers based this opinion on Gorre' s Valley
Fever symptoms, such as skin problems, that do not happen with eosinophilia. Dr. Ayars opined

that ( 1)   Gorre had only one diagnosis, Valley Fever, and no separate independent respiratory

disease; ( 2) Gorre did    not    contract   Valley   Fever in Washington; (     3) Gorre' s having lived in

California from 1994 to 1997 and travels all over California since that time provided significant

exposure to the Valley Fever organism in an endemic area; and ( 4) Gorre' s symptom onset in

February 2006 suggested he had been exposed to the Valley Fever spores when he was in Las
Vegas in December 2005 and, thus, it was likely he had contracted Valley Fever in Nevada and

had brought it with him to Washington.

                                             Dr. Emil J. Bardana, Jr.

            Dr. Bardana is a physician and allergist with a research background in occupational resin

 exposure     and causation   issues.   In September 2009 .he reviewed Gorre' s medical reports and


 letters from Dr. Ayars     and   Dr. Goss; Dr. Bardana issued      a report    in October. He testified that


 there is no such thing as an eosinophilic lung disease, which is an ambiguous term for a group of
 disorders that have    eosinophilic    lung   inflammation,   not a specific   disease.   He further testified


 that eosinophilic lung disease in firefighters is almost anon-issue, and hypothesized that Gorre

 had developed pulmonary eosinophilic syndrome as a result of his Valley Fever, likely

 contracted during his golf trip to Las Vegas.

            Dr. Bardana testified that Valley Fever, a fungal infection, is endemic in the southwestern

 part.of the United States, Nevada, Utah, New Mexico, and Texas. • He opined that (1) Gorre did

 not have separate and distinct respiratory diseases or conditions apart from Valley Fever
  symptoms; and ( 2) given that Gorre had been in Las Vegas in October 2005 and developed


                                                         15
No. 43621 -3 -11



symptoms of Valley Fever starting in December 2005, his trip to Las Vegas could have been his

primary   exposure     to   Valley   Fever.   Dr. Bardana further noted that Gorre' s medical records


showed that, despite a chewing tobacco history, Gorre' s exposure to tobacco had been minimal.
                                        Dr. Payam Fallah Moghadam


        Mycologist Dr. Fallah testified that the Valley Fever organism exists in sterile soil; he.

opined that it is confined to places such as the lower Sonoran desert, Utah, southern Utah,

Nevada, southern Nevada, New Mexico, Arizona, Texas, and the San. Diego/Mexico border. He

further testified that this organism ( 1) does not exist in the fertile soil of western Washington; (2)

cannot be found in Pierce County, anywhere along the I - corridor, or in western Washington
                                                       5

grasslands and wildlands; and ( 3) cannot withstand fire, and will die off at 125 to 130 degrees

fahrenheit.


                                              Dr. Marcia J. Goldoft


          Washington State Department of Health epidemiologist Dr. Goldoft testified that she

tracks " notifiable"   conditions21 of infectious or communicable diseases in Washington State, that

Valley Fever is not a " notifiable" condition in Washington State, and that Valley Fever is not
 even " classified" by our state Department of Health because it is rare in Washington. ARP (June
 24, 2010)    at   88536.    From 1997 to 2009, there were 15 reported cases of Valley Fever in

 Washington, reported as " rare diseases" to the Department of Health, with none confirmed as

 originating from exposures in Washington State.. ARP (June 24, 2010) at 88536.




 21 " Notifiable" conditions are those that require reporting under the Washington Administrative
 Code. ARP ( June 24, 2010) at 88535.


                                                        16
No. 43621 -3 -I1



                              Drs. Buckley Allan Eckert and Stuart Mark Weinstein

         Dr. Eckert, an internal medicine physician, testified that he had evaluated Gorre on
                                                                                                    Coxsackievirus22,

March 8, 2007. At the time, Gorre had               night sweats, periodic    bouts   of   fever,


and   bilateral finger    numbness.        Dr. Eckert also testified that Gorre was a former smoker, who


had quit smoking in 1990. Dr. Weinstein, a Harborview Medical Center physician, testified that

he had   evaluated       Gorre    on   April 18, 2002. At that time, Gorre said he had been a non -
                                                                                                  smoker


since age 30, when he quit smoking cigars, which he had begun at age 20.

                                                     d) IAJ' s ruling

         The IAJ issued a proposed decision and order affirming the Department' s March 2009

denial   of   Gorre' s   claim.    Specifically, the IAJ made the following findings of fact, summarized

as   follows: (   1) In February 2006, Gorre developed symptoms of, and his doctor later diagnosed

him with an infectious disease, Valley Fever, and Gorre did not develop a respiratory disease or a

lung condition; and ( 2) Gorre' s Valley Fever did not arise naturally and proximately from his
occupation as a        firefighter for the    City. Based on these findings, the IAJ issued the following

 conclusions      of   law,   summarized     as   follows: (   1)   Gorre did not incur any disease that arose

naturally and proximately from distinctive conditions of his employment with the City' s fire
 department under RCW 51. 08. 140, and (2) the Department' s March 24, 2009 order was correct.




 22 Coxsackievirus is a group of viruses responsible for a variety of diseases in humans, such as
 human herpangina, hand -
                        foot -
                             and -
                                 mouth disease, epidemic pleurodynia, and aseptic meningitis.
 See STEDMAN' S MEDICAL DICTIONARY 406 (26th Ed. 1995).




                                                               17
No. 43621 -3 -1I



                                                2. Board' s ruling on appeal

         Gorre petitioned the Board to review ( 1) the IAJ' s ruling that he had not suffered a

respiratory disease      under      RCW 51. 32. 185; (      2) the IAJ' s ruling that the burden of proof was on

him ( Gorre) to      show an occupational             relationship between his disease       and   his job; ( 3) the IAJ' s


ruling that he did not suffer an occupational disease, even though he showed he had two
respiratory diseases,        eosinophilia and coccidioidomycosis (             Valley Fever); ( 4) the IAJ' s failure to

apply the RCW 51. 32. 185 presumption of occupational disease, and ( 5) the IAJ' s rulings that he
did    not    develop   any respiratory          or   infectious diseases in the        workplace.      The City cross -

petitioned the Board ( 1) to review the TAP s failure to issue a finding or a conclusion that Valley

Fever is not a condition subject to RCW 51. 32. 185' s statutory presumption; and ( 2) to issue a

finding or conclusion that the City had rebutted this presumption, even if RCW 51. 32. 185 did
apply.


             The Board reviewed the IAJ' s record of proceedings, concluded that the IAJ did not

 commit       any   prejudicial     error,     affirmed the IAJ' s rulings, and added findings of fact and

 conclusions of law to clarify why Gorre'.s medical condition could not be presumed to be an

 occupational disease under RCW 51. 32.185 and to explain why Gorre did not satisfy his burden

 of proof.      The Board     made       the   following   findings   of   fact,   summarized as    follows: ( 1) Gorre' s


 exposure to the Valley Fever organism occurred during a November 2005 golfing trip to Nevada,

  2)   Valley    Fever is     an   infectious disease, ( 3)     Gorre became symptomatic of Valley Fever in

 December 2005,          and (     4)    Gorre did not contract any respiratory condition naturally and

                                   his                       firefighter for the     City        Tacoma.   Based on these
 proximately        caused   by          occupation as a                                    of




 findings, the Board         made    the   following     conclusions of      law,   summarized as    follows: (   1) during



                                                                18
No. 43621 -3 -11



the course of his employment with the City, Gorre did not develop any disabling medical

condition that the provisions of RCW 51. 32. 185 mandate be presumed to be an occupational

disease, ( 2) Gorre did not incur any disease that arose naturally and proximately from distinctive

conditions   of   his   employment with      the   City, ( 3) the Department' s March 24, 2009 .order was

correct. Ruling that Gorre had not met these burdens, the Board affirmed the Department' s order

denying Gorre' s occupational disease claim.
                                         C. Appeal to Superior Court

        Gorre appealed the Board' s decision and order to superior court, where he moved for

summary judgment reversal of the Board' s rulings. Gorre argued that the Board had failed ( 1) to
apply the RCW' 51. 32. 185 presumptions of firefighter occupational respiratory disease and
infectious disease to his medical claims; and ( 2) to require the City to rebut these presumptions

by a preponderance of credible, admissible evidence that his medical conditions did not arise
 from occupational exposure or from occupational aggravation of any preexisting condition.

        The             filed                    for summary judgment, arguing that ( 1)     Gorre failed to
              City              a cross motion




 establish a compensable claim         under   RCW 51. 32.185; (    2) under RCW 51: 32. 185, Valleq Fever

 is not a presumptive occupational disease and, thus, the superior court should affirm the Board' s

 ruling; (3) RCW 51. 32.185 was also inapplicable because Gorre had a smoking history; (4) even
 if the statutory presumption applied, the City had rebutted it; and ( 5) Gorre' s conditions did not
 arise naturally and proximately from conditions of his employment with the City.
         Gorre then       submitted   the   following   exhibits:   Rose Environmental' s residential indoor .


 environmental quality and mold evaluation, Dr. Goss' s declaration, and Dr. Bollyky' s letter. The

 City filed a motion to strike these exhibits and Gorre' s reference to Simmons' testimony, arguing


                                                          19
    No. 43621 -3 -I1



    that the superior court should prohibit . Gorre from offering new exhibits and inadmissible

    testimony under RCW 51. 52. 115.23 Gorre responded that ( 1) he had already submitted the Rose
    Environmental report to the Board; (2) Dr. Goss' s declaration was already included as an exhibit

    in Gorre'    s   renewed    motion     for summary judgment before the Board; ( 3)                     Dr. Bollyky had

    previously testified about the aforementioned letter and its contents during his deposition, which
    was part of the record; and ( 4) Simmons' testimony was admissible.
                                                                                        24
              The    superior court    orally   affirmed   the Board' s decision,            ruling that ( 1) it was " a little
                                     25
    hard to   support   factually"        that Gorre had contracted Valley Fever in Washington; (2) Gorre did

    not   have   separate   diseases      of eosinophilia and       interstitial   lung   disease because "     what people




    were    seeing   were symptoms of         the cocci that he did have ";         and ( 3) Gorre was not a smoker -


      h] is testimony     was   that he    smoked a    little bit   as a   kid   and   had    an occasional cigar.     I don' t


    think smoking       was an   issue here     at all."   Verbatim Transcript         of    Proceedings ( VTP) ( Mar. 30,


    2012) at 55, 56. The superior court denied the City' s request for deposition costs incurred at the

    Board level, finding that the City had incurred these costs for the Board action, not for the

     superior court action.




     23 When the City asked the superior court to rule on its motion to strike Gorre' s exhibits, Gorre
     voluntarily withdrew Dr. Bollyky' s letter. The court stated it would rule on the motion to strike
     later, but it never did.

     24 The record does not show that the superior court ruled expressly on the parties' cross motions
     for summary judgment.             Instead, it appears that the superior court followed the legislature' s
     statutorily prescribed procedures for judicial review of administrative workers' compensation
     decisions, which we describe more fully in the standard of review section of this opinion' s
     analysis section.


     25
          Verbatim Transcript     of   Proceedings ( VTP) ( Mar. 30, 2012) at 54.



                                                                20



r
No. 43621 -3 -II



        Ruling that a preponderance of the evidence supported the Board' s findings of fact, the
superior court issued a written ruling adopting the Board' s findings of fact and conclusions of

law and affirming the Board' s denial of Gorre' s occupational disease claim. The superior court
entered additional findings of fact that Gorre was not a smoker, that he had coccidioidomycosis,

that his symptoms were manifestations of his coccidioidomycosis, and that he did not have

separate diseases of eosinophilia or interstitial lung disease. The superior court ordered Gorre to

pay statutory attorney fees of $ each to the City and to the Department under RCW 4. 84.080,
                                200

but it denied the City' s request for deposition costs.

                                        D. Appeal to Court of Appeals


            Gorre appeals the superior court' s .rulings and affirmance of the Board' s denial of his

occupational      disease   claim.   In particular he challenges the superior court' s and the Board' s

failures ( 1)     to recognize three          separate   statutorily presumptive   occupational respiratory

conditions; (    2) to exclude prejudicial, confusing, and misleading evidence; and ( 3) to award him

 attorney fees     and   costs,   including   expert witness    fees.   The City cross -appeals the superior

 court' s   failure ( 1) to find that Gorre    was a smoker, (   2) to award the City deposition costs under

 RCW 4.84. 010 and RCW 4. 84.09026, and ( 3) to rule on City' s motion to strike and to exclude

 inadmissible documents and unsupported assertions.




 26 The legislature amended RCW 4. 84. 010 in 2007 and 2009; and amended RCW 4. 84. 090 in
 2011. The amendments did not alter the statutes in any way relevant to this case; accordingly,
 we cite the current version of the statute.




                                                           21
No. 43621 -3 -II



                                                        ANALYSIS


             Gorre   argues     that the   superior court and     the Board    erred   in ( 1)   failing to apply RCW

51. 32. 185' s presumption that firefighters' respiratory and infectious diseases are prima facie

occupational         diseases   under   RCW 51. 08. 14027;      and (2) consequently, failing to place on the City

the burden of rebutting this presumption. The City and Department respond that Gorre had only

Valley Fever and no other separate disease and, thus, the superior court did not err in finding that
he did not qualify for this evidentiary presumption of occupational disease under RCW

51. 32. 185.


             On cross appeal, the City argues that the superior court erred in ( 1) finding that Gorre

was not a smoker, (           2) failing to strike the evidence Gorre presented at the superior court level,

and (   3)   failing      award the
                       to .             City its   deposition   costs.   Gorre responds that the superior court did


not err in ( 1) finding that he was not a smoker, because the record does not support such a

finding; ( 2) failing to grant the City' s motion to strike evidence Gorre presented at the superior

 court level; and ( 3) denying the City statutory fees for deposition costs it incurred for the Board

 action. Except for those we can combine, we address each argument in turn.

                                                   I. STANDARD OF REVIEW


             Unlike other administrative decisions, the legislature has charged the courts with


 reviewing      workers'      compensation cases " as      in   other civil cases."    RCW 51. 52. 140. As Division


 One has clarified:




 27
      More       specifically,      Gorre     asserts   that    he   had   separate    diseases,    Valley . Fever and •
 eosinophilialinterstitial lung disease, both of which constitute respiratory and infectious diseases
 qualifying for this presumption.



                                                                22
No. 43621 -3 -I1



                    Washington' s Industrial Insurance Act includes judicial review provisions
          that   are specific   to   workers'    compensation     determinations.      In particular, the act
          provides that superior court review of a Board determination is de novo, that it
          includes the right to a jury trial, and that the party seeking review bears the
          burden ofshowing that the Board's decision was improper:
                 The hearing in the superior court shall be de novo, but the court shall not
                    receive evidence or testimony other than, or in addition to, that offered
                    before the board or included in the record filed by the board in the superior
                    court as provided      in RCW 51. 52. 110....        In 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. If the court shall determine that the board has acted
                    within its power and has correctly construed the law and found the facts,
                    the decision of the board shall be confirmed; otherwise, it shall be
                    reversed or modified.



Rogers    v.    Dep' t   of Labor & Indus.,       151 Wn. App. 174, 179, 210 P.3d 355 ( emphasis added)

 quoting RCW 51. 52. 115), review denied, 167 Wn.2d 1015 ( 2009).

          Applying these statutory standards, the superior court treats the Board' s decision as
  prima   facie    correct under      RCW 51. 52. 115"      such that it "may substitute its own findings and

 decision for the Board' s only if it finds from a fair preponderance of credible evidence, that the

 Board'   s   findings and decision      are   incorrect"   Rogers, 151 Wn. App. at 180 ( citing Ruse v. Dep' t

                                                    1999)).                  On appeal of the superior court' s
 of Labor & Indus., 138 Wn.2d 1, 5, 977 P. 2d 570 (


 worker' s compensation decision, however, -

                 w]e review whether substantial evidence supports the trial court' s factual
              findings and then review, de novo, whether the trial court' s conclusions of law
              flow from the findings."

 Rogers, 151 Wn.                     180 ( emphasis                      Watson   v.   Dep' t of Labor &   Indus., 133.
                         App.   at                    added) ( quoting




                                                             23
No. 43621 -3 - II



Wn.   App.   903, 909, 138 P. 3d 177 ( 2006) (    citing Ruse, 138 Wn.2d at 5) 28 In so doing, we also .
review de novo the legality of the Board' s decisions, like the superior court, relying solely on the

evidence presented to the Board. RCW 51. 52. 115; Raum v. City ofBellevue, 171 Wn. App. 124,

139, 286 P. 3d 695 ( 2012),       review   denied, 176 Wn.2d 1024 ( 2013);   Dep' t of Labor &   Indus. v.


Avundes, 95 Wn.        App.   265, 269 -70, 976 P.2d 637 ( 1999),   aff'd, 140 Wn.2d 282, 966 P.2d 593

 2000).




28 As Division One further explained:
                  This statutory review scheme results in a different role for the Court of
          Appeals than is typical for appeals of administrative decisions pursuant to, for
          example, the Administrative Procedure Act [ ch. 34. 05 RCW], where we sit in the
          same position as the superior court. To be clear, unlike in those cases, our review
          in workers' compensation cases is akin to our review of any other superior court
          trial judgment: ` "    review is limited to examination of 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 of law flow from the findings. "'
          Ruse, 138 Wn.2d at 5 ( quoting Young V. Dep' t of Labor & Indus., 81 Wn. App.
          123, 128, 913 P. 2d 402 ( 1996))... .
                    Our function is to review for sufficient or substantial evidence, taking the
                    record in the light most favorable to the party who prevailed in superior
                    court.    We are not to reweigh or rebalance the ,competing testimony and
                    inferences, or to apply anew the burden •of persuasion, for doing that
                    would abridge the right to trial by jury.
          Harrison Mem' l Hosp. v. Gagnon, 110 Wn. App. 475, 485, 40 P.3d 1221 ( 2002)
           footnotes      omitted).   The Industrial Insurance Act itself encapsulates this
          rationale,   providing that "[ a]ppeal shall lie from the judgment of the superior
          court as   in other civil cases." RCW 51. 52. 140 ( emphasis added). •... We do not
          review the trial court' s factual determinations de novo.
 Rogers, 151 Wn. App. at 180 -181 ( internal footnotes omitted).


                                                       24
No. 43621 -3 -II



    II. GORRE' S VALLEY FEVER: QUALIFYING DISEASE FOR RCW 51. 32. 185 PRESUMPTION29

         We agree with Gorre that ( 1) his contracting Valley Fever was a " respiratory disease,"

which    qualifies       for the    statutory    presumption        of   an "   occupational    disease"   under RCW


51. 32. 185; (   2) the Department, the IAJ, the Board, and the superior court all erred in failing to

apply this statutory presumption to his worker' s compensation claim; and ( 3) consequently, they

erred in placing the burden on Gorre to prove his occupational disease instead of placing the

burden on the City to rebut this statutory presumption.

                 A. RCW 51. 32. 185: Occupational Disease Presumption for Firefighters


         We recognize that generally, in order to obtain workers' compensation benefits, the initial

burden is on the worker to show that he or she developed an " occupational disease" that arose

naturally and proximately out of employment. RCW 51. 08. 140; Ruse, 138 Wn.2d at 6. But our
legislature carved out a unique exception for firefighters when it enacted RCW 51. 32.185, which

establishes a rebuttable evidentiary presumption that certain diseases contracted by firefighters

are " occupational diseases" covered under the Industrial Insurance Act30. RCW 51. 32. 185 ( 1):

                    In   the   case of   firefighters   as   defined in [ former] RCW 41. 26. 030( 4) (        a),

          b),    and ( c) [(   2009)]   who are covered under        Title 51 RCW ... ,        there shall exist a




29 Gorre appears to argue that RCW 51. 32. 185 creates a separate claim for an occupational
disease other than those that the statute lists as recognized firefighter occupational diseases. We
disagree: RCW 51. 32. 185( 1) does not create anew cause of action; rather, it creates a rebuttable
                   presumption"         that   specified   firefighter diseases     are " occupational"      diseases for
 evidentiary "
 workers' compensation purposes. See, e.g., Raum, 171 Wn. App. at 144. Instead, we agree with
 Division One of our court, which reviewed the legislative history behind RCW 51. 32. 185 and
 held that it does not create a separate occupational disease claim different from that in RCW
 51. 08. 140; instead, " RCW 51. 32. 185 does [ no] more than create a rebuttable evidentiary
 presumption."        Raum, 171 Wn. App: at 144.

 30 Title 51 RCW.



                                                               25
No. 43621 -3 -1I


                                                                                    31]; ...
          prima     facie     presumption   that: (   a)   Respiratory   disease[                   and ( d ) infectious
                                                                                                              3].
          diseases[ 32]        are   occupational      diseases      under    RCW              51. 08. 140[          This

         presumption of occupational disease may be rebutted by a preponderance of the
          evidence.           Such evidence may include, but is not limited to, use of tobacco
                       34],
          products[             physical   fitness    and    weight, .   lifestyle,    hereditary         factors,    and

          exposure from other employment or nonemployment activities.




31 The legislature accompanied its 1987 promulgation of this evidentiary presumption with the
following findings:
        The legislature finds that the employment of fire fighters exposes them to smoke,
          fumes,     and      toxic or chemical substances.           The legislature recognizes that fire
          fighters as a class have a higher rate of respiratory disease than the general public.
          The legislature therefore finds that respiratory disease should be presumed to be
           occupationally related for industrial insurance purposes for fire fighters.
LAWS OF 1987,         ch.     515, § 1


32 RCW 51. 32. 185( 4) provides:
               The presumption established in subsection ( 1)( d) of this section shall be
          extended to any firefighter who has contracted any of the following infectious
          diseases: Human immunodeficiency virus /acquired immunodeficiency syndrome,
           all strains of hepatitis, meningococcal meningitis, or mycobacterium tuberculosis.
 Emphasis added.)

 33
      As is the   case   for any     workers'   compensation claim,          RCW 51. 08. 140 defines "[              o] ccupational

 disease"    as "   such disease or infection as arises naturally and proximately out of employment
 under the mandatory or              elective adoption provisions of          this title."        RCW 51. 32. 185, however,
 shifts the burden of disproving such occupational disease to the employer once the firefighter
 shows that he has a respiratory, infectious, or other qualifying disease under this statute.

 34 RCW 51. 32. 185( 5) further provides:
                      Beginning July 1, 2003, this section does not apply to a firefighter who
           develops a heart or lung condition and who is a regular user of tobacco products
           or who has a history of tobacco use.    The department, using existing medical
           research, shall define in rule the extent of tobacco use that shall exclude a
            firefighter from the provisions of this section.




                                                                26
No. 43621 -3 -II



 Emphasis     added).   35 For purposes of the instant appeal, we focus on only the respiratory and

infectious occupational diseases that Gorre claims he suffered in the course of his employment as

a City firefighter.

         For the RCW 51. 32. 185( 1) presumption of occupational disease to apply, the firefighter

must show that he has one of the four categories of diseases listed in the same statutory

subsection.   36 Raum, 171 Wn. App. at 147; WAC 296 -14 -310. Only two of these categories are

at issue here: respiratory diseases and infectious diseases. Under the plain language of the RCW
51. 32. 185( 1),    once the firefighter shows that he has one of these types of diseases, triggering the

            presumption      that the disease is      an " occupational   disease," the burden shifts to the
statutory


employer to rebut the presumption by a preponderance of the evidence by showing that the

origin or aggravator of the firefighter' s disease did not arise naturally and proximately out of his

employment.         Raum, 171 Wn.      App   at   141 ( citing RCW 51. 32. 185( 1)).   If the employer cannot


meet this burden, for example, if the cause of the disease cannot be identified by a preponderance

 of the evidence or even if there is no known association between the disease and firefighting, the




 35 This statutory presumption furthers the legislature's intent that the Industrial Insurance Act be
 remedial    in    nature and "`   reduc[ e] to a minimum the suffering and economic loss arising from
 injuries       death occurring in the course of employment. "'
            and/ or                                                              Dennis v. Dep' t of Labor &
 Indus., 109 Wn.2d 467, 474, 745 P. 2d 1295 ( 1987) ( quoting RCW               51. 12. 010).

 36 If the firefighter has some other type of disease, such that this evidentiary presumption does
 not apply, the burden of proof is on him to prove that the disabling condition is an " occupational
 disease" under RCW 51. 08. 140, which requires proving that the condition arose naturally and
 proximately out of his employment. Raum, 171 Wn. App. at 152.


                                                           27
No. 43621 -3 -II


                                                                                                          37
firefighter   employee maintains         the benefit    of the occupational          disease presumption.


           B. Record Supports Agency' s Finding Single Medical Condition: Valley Fever
          Gorre asserts that he suffered from additional separate diseases, such as eosinophilia or

interstitial lung disease. Whether he suffered from one or multiple diseases is a question of fact.
As we previously noted, we apply, the substantial evidence standard to the superior court' s

findings of fact, which, in turn, could " substitute its own findings and decision for the Board' s

only if it finds from a fair preponderance of credible evidence, that the Board' s findings and
decision    are    incorrect." Rogers, 151 Wn.          App.      at   180; RCW . 52. 115.. Again, this substantial
                                                                                51.


evidence standard is highly deferential to the agency fact finder; and we do not weigh the

evidence or substitute our            judgment for the agency'           s   judgment    about witness   credibility.   See


Chandler      v.   Office of Ins. Comm' r, 141 Wn.               App.    639, 648, 173 P. 3d 27.5 ( 2007).      Applying

these standards here, we hold that the record supports the Board' s and the superior court' s




      The following factual issues may reappear on remand:- To the extent that the parties elect not
 to   relitigate   these   issues,   we rule on   Gorre'   s   factual   challenges as   follows: Gorre argues that the

 superior court and the Board erred in (1) fmding that he had only one medical condition, Valley
 Fever, and failing to acknowledge that he had two separate and distinct diagnoses -
 eosinophilia/ interstitial lung disease and Valley Fever; ( 2) failing to acknowledge that either of

 these conditions qualified for the occupational disease presumption under RCW 51. 32. 185( 1);
 and ( 3) failing to apply this statutory presumption, which would have shifted the burden to the
 City to show that his diseases did not arise from his firefighter employment.
           We disagree with Gorre' s first point and agree with the City' s argument on cross appeal
 that, despite his respiratory symptoms, Gorre established                             only Valley Fever, and not an
 additional separate disease. But we agree with Gorre' s second                       point— that Valley Fever is both a
 respiratory disease and an infectious disease for purposes of RCW 51. 32. 185( 1)' s statutory
 presumption        of an occupational       disease,      and with      his third   point—   the Board and the superior
 court erred in failing to apply this statutory presumption to shift the burden of proving the
 disease' s non- occupational origin to the City..



                                                                  28
No. 43621 -3 -1I



finding that Gorre suffered from a single medical condition, namely Valley Fever, which Board
finding Gorre did not overcome by a preponderance of the evidence.

         Only   Dr. Goss believed that Gorre originally had            a separate    lung   condition —eosinophilic




lung disease, which when treated with steroids caused Gorre' s onset of Valley Fever, a second
disease.     Gorre' s other expert, Dr. Johnson, together with the other doctors and experts,

disagreed with Dr. Goss' s theory that Gorre' s ingestion of steroids to treat eosinophilic lung

disease disseminated a dormant cocci organism, which caused the onset of Gorre' s Valley Fever.

Rather, the     other   doctors . and   experts   reached     the   opposite   conclusion —it      was the dormant


Valley Fever cocci that caused Gorre' s respiratory, flu -ike symptoms ( for example, pneumonia)
                                                         l
                                        Valley    Fever.     Dr. Bardana,      for    example, (   1)   testified that
to   develop    and     manifest   as



eosinophilic lung disease in firefighters is almost a non -
                                                          issue; and ( 2) hypothesized that Gorre
had developed pulmonary eosinophilic syndrome from his preexisting dormant Valley Fever

 such   that Gorre had " one disease, ...        not   two diseases," adding, "[     I]t' s crystal clear, and I think


 everybody     except   Dr. Goss   agrees with    that."   ARP (June 24, 2010) .at 88519.


           We affirm the Board' s and the superior court' s findings that Gorre did not have separate

 symptoms of eosinophilia or interstitial lung disease and that he had only one medical condition,

 Valley Fever, from which his various respiratory symptoms flowed.
                C. Gorre' s Valley Fever —Statutorily Presumptive              Occupational Disease

           We next address the Board' s and the superior court' s findings that Gorre' s Valley Fever

 was not an occupational disease under RCW 51. 08. 140 because he failed to prove a specific

 injury during the course of his employment and because he did not contract any respiratory

 conditions that arose naturally and proximately from distinctive conditions of his employment


                                                            29
No. 43621 -3 -II



with the City. We agree with Gorre that ( 1) the Board and the superior court erred in failing to

apply the presumption of occupational disease in RCW 51. 32.185 and instead placing the burden
of proving an occupational disease on him38; and ( 2) Valley Fever constituted both a respiratory
and infectious disease, either of which qualified for the evidentiary presumption of firefighter

occupational disease under RCW 51. 32. 185.

                                             1.    Statutory interpretation

        RCW 51. 32. 185 (. )( a) and ( d) creates a prima facie presumption of occupational disease
                         1

for " respiratory diseases"     and "     infectious diseases."       The statute does not define either of these


types of diseases,       although    it   provides      examples    of some   infectious diseases.        If a statute' s


meaning is plain on its face, then we give effect to that plain meaning as an expression of

legislative intent.      State ex rel. Citizens Against Tolls v. Murphy, 151 Wn.2d 226, 242, 88 P. 3d

375 ( 2004).    When a statute is susceptible to more than one reasonable interpretation, however, it

is   ambiguous     and    we   use   canons       of   statutory   construction   or   legislative   history.   Dept. of

               Campbell & Gwinn, LLC, 146 Wn.2d 1, 12, 43 P. 3d 4 ( 2002).                           Here, we use these
Ecology   v.




 canons of statutory construction to discern whether the legislature intended to include Gorre' s

 Valley Fever and its related respiratory symptoms in its " respiratory diseases" and " infectious

 diseases" qualifying for the occupational disease presumption under RCW 51. 32.185( 1).


 38 More specifically, when the Department and the Board failed to apply the statutory
 presumption, they erroneously placed on Gorre the burden to show that his respiratory symptoms
 arose from his firefighting occupation stress instead of starting with the presumption of a
 qualifying occupational disease under RCW 5. 32. 185( 1) and looking to the City to rebut this
 presumption. This erroneous burden -shifting led to the Board' s denying Gorre benefits based on
 its findings that ( 1) because Valley Fever is not native to Washington, Gorre' s trip to Las Vegas
 or time spent in California constituted exposure to non -employment activity that caused his
 Valley Fever; and ( 2) therefore, Gorre' s Valley Fever did not arise naturally and proximately
 from the course of his employment.


                                                               30
No. 43621 -3 -II



         We discern a statute' s plain meaning from the ordinary meaning of the language at issue,

the context in which that statutory provision is found, related provisions, and the statutory

scheme as a " whole."           State   v.   Engel, 166 Wn.2d 572, 578, 210 P. 3d 1007 ( 2009).              If a statute


does not define a term, however, we may look to common law or a dictionary for the definition.

State   v.   Pacheco, 125 Wn.2d 150, 154, 882 P.2d 183 ( 1994).                  If a term is susceptible to two or


more reasonable interpretations, it is ambiguous and we then look to other sources of legislative

intent. State v. Garrison, 46 Wn. App. 52, 54 -55, 728 P. 2d 1102 ( 1986).

             Because Washington' s Industrial Insurance Act " is          remedial    in   nature," we must construe




it " liberally              in order to achieve its purpose of providing compensation to all covered

employees        injured in their    employment, with       doubts   resolved   in favor   of   the   worker."   Dennis v.


Dep' t   of Labor &          Indus., 109 Wn.2d 467, 470, 745 P. 2d 1295 ( 1987).                      When engaging in

statutory interpretation, our fundamental. objective is to give effect to the legislature' s intent.
 Campbell, 146 Wn.2d            at   9 -10.    Thus, such liberal construction is particularly appropriate for

 statutes addressing firefighter injuries, whose employment exposes them to smoke, fumes, and

toxic or chemical substances and for whom our. legislature enacted special workers'

 compensation         protections:       Recognizing that firefighters as a class have a higher rate of

 respiratory disease than the general public, our legislature declared that for industrial insurance
 purposes      respiratory .disease is        presumed   to be occupationally    related   for firefighters. LAWS OF


 1987,   ch.    515, § 1.




                                                              31
No. 43621 -3 -II



                      a. Gorre' s Valley Fever is a respiratory disease under RCW 51. 32. 185.

           RCW          51. 32. 185( 1)(   a)   provides      that "     respiratory     diseases"      are    presumptively


occupational          diseases   under     RCW 51. 08. 140.      But Washington law does not define " respiratory

disease"    in this        context.        Webster'   s   dictionary     defines " respiratory"      as "   of or relating to

respiration."          WEBSTER'     S   THIRD NEW INTERNATIONAL DICTIONARY . 1934 ( 2002).                        WEBSTER' S


defines "   respiration" as " a single, complete act of                breathing "39 it defines " disease" as " a cause of

discomfort        or   harm, "40   or " an impairment of the normal state of the living animal or plant body

or         of   its   components        that interrupts or modifies the       part of   the vital functions."     WEBSTER' S
     any


at   648 ( definition lb).          Thus the dictionary definition of "respiratory disease" is a discomfort or

condition of an organism or part that impairs normal physiological functioning relating,

affecting, or used in the physical act of breathing.

           The medical testimony established that Valley Fever impairs a person' s respiratory

system.         Valley Fever expert Dr. Johnson opined that Valley Fever is transmitted through
inhalation exposure to arthroconidia in the soil that impacts in the lungs, usually causing

 pneumonic            disease.   Although asserting that Valley Fever is an infectious disease ( and not a

 respiratory disease),             Dr. Ayars testified that ( 1)           symptoms of Valley Fever are generally

 pulmonary            symptoms      such as     coughs,    fever,   and. sputum; (      2) the cause of Valley Fever is

 through the production of arthrospores in the air that when breathed into the lungs, causes

 disease in humans; and ( 3) more severe Valley Fever leads to other pulmonary symptoms, such

 as abscesses          in the lungs,       chronic pneumonias, and meningitis.              Dr. Bardana testified that in



 39 WEBSTER' S at 1934 (definition lb).

 40 WEBSTER' S at 648 ( definition 2a).


                                                                    32
    No. 43621 -3 -11



    March 2007, Gorre'             s    pulmonary function              showed     a small    airway   obstruction and         40   percent




    eosinophilia in his peripheral blood count, and a CT examination of his chest showed ground

    glass deformities and nodularities.

               It   was undisputed         that Gorre        had    Valley   Fever   41 The record shows that Valley Fever is

    an airborne disease that humans contract through inhalation, that the organism causing Valley

    Fever impacts in the lungs, and that Valley Fever patients suffer respiratory symptoms and

    pulmonary         symptoms.            Accordingly,            we   hold that ( 1)       Valley . Fever meets the dictionary

    definition       of "respiratory        disease " —an          abnormal condition impairing the normal physiological

    functioning of the respiratory system, which by definition includes the lungs, and therefore is a
     respiratory disease" under RCW 51. 32. 185; and ( 2) the Board and the superior court erred in
    failing to characterize Gorre' s Valley Fever as such.

                      b. Gorre' s Valley Fever is an " infectious disease" under RCW 51. 32. 185.

               RCW 51. 32. 185( 1)( d) provides that " infectious diseases" are presumptively occupational

     diseases under RCW 51. 08. 140. Although Washington law does not define " infectious disease"

     in this   context,    RCW 51. 32. 185( 4) lists four               specific   infectious diseases that do qualify: " Human


                                                                 immunodeficiency        syndrome,      all        strains   of     hepatitis,
     immunodeficiency                        acquired
                                       virus /



     meningococcal meningitis,                  or mycobacterium             tuberculosis."     The plain language of subsection


      4) does        not   state   that this         list   of   four diseases is     exclusive;   rather     it    provides      that "[   t]he


     presumption established in subsection ( 1)( d) of this section shall be extended to any firefighter

     who   has      contracted     any    of   the   following      diseases[.]"    RCW 51. 32. 185( 4) (     emphasis added).




     41 The City disputed only Gorre' s Valley Fever origin, arguing that Gorre' s Valley Fever was not
     related to his employment as a firefighter.


                                                                             33




r
No. 43621 -3 -11



       The City and the Department argue that the legislature intended to limit .the scope of

                                                          specifically listed in RCW 51. 32. 185( 4).       Gorre
qualifying infectious diseases to the            ones




counters that because there is no limiting language in the statute to suggest otherwise, Valley

Fever constitutes an infectious disease under RCW 51. 32. 185. We agree with Gorre.

       The    statute' s   use   of   the term "   extended   to"   evinces the legislature' s intent to ensure


inclusion of the four diseases enumerated in subsection ( 4) under RCW 51. 32.185( 1)( d)' s

presumption    of occupational         disease   status   for firefighters' " infectious diseases" in general.


RCW 51. 32. 185( 1)( d).     This reading is consistent with WEBSTER' s definition of "extend "42 as
meaning " to increase the, scope, meaning, or application of' and definition of "extended "43 as " to
have a wide range" or " of great scope."


        In addition, nothing in the plain statutory language suggests that the legislature intended

this list of four diseases to be exclusive or even illustrative; rather, it appears that the legislature

included this statutory list so that firefighters could benefit from the statutory presumption of a

benefit-qualifying occupational disease if they contracted one of four specified serious infectious
 diseases             not   otherwise               recognized      as   occupational   diseases:   HIV, hepatitis,
            perhaps                       readily


 meningitis, and   tuberculosis.       Thus, this list of four specific diseases illustrates the legislature' s




 42 WEBSTER' S at 804 ( definition 6b).

 43 WEBSTER' S at 804 ( definition 4b).



                                                             34
No. 43621 -3 -11


                                                                                                         44
intent to   expand   the   scope of   qualifying " infectious diseases,"        not   to limit them.


        Furthermore,       we construe statutes      to   avoid absurd results.          State v. Neher, 112 Wn.2d


347, 351, 771 P. 2d 330 ( 1989).         Our legislature has clearly stated its intent to provide benefits for

firefighters, whose jobs constantly expose them to a broad range of dangers while protecting the

public; and again, we are to construe these benefits liberally. Thus, it would be absurd to read

this statutory provision as limiting the covered infectious diseases to only those four expressly
enumerated:        Such absurd construction would mean that a firefighter exposed to methicilin-

resistant staphylococcus        aureus (   MRSA)     or other staphylococcus aureus ( staph                   infections), for


example, would not be covered under the statute.


        Construing the statutory framework as a whole, we read the plain language of RCW

51. 32. 185( 4) as reflecting the legislature' s intent to include " infectious diseases" in general, not

to limit them to only the four specified diseases to which it "extended" coverage for firefighters
who contract      these four   named     diseases.   Given all the experts who opined that Valley Fever is

an   infectious disease,       we     hold that   Valley       Fever is    an "   infectious disease"           under RCW




 44 In contrast, if the legislature had intended to limit the scope of infectious diseases covered
 under the statute, it would have used limiting language similar to the language it used in the
 immediately preceding subsection, RCW 51. 32. 185( 3):
                    The presumption established in subsection ( 1)( c) of this section shall 'only .
            apply to any active or former firefighter who has cancer that develops or
            manifests itself after the firefighter has served at least ten years and who was
            given a qualifying medical examination upon becoming a firefighter that showed
            no evidence of cancer.         The presumption within subsection ( 1)( c) of this section
            shall only apply to .. .
  Emphasis      added).     The legislature' s    use     of   the   limiting   term " only"     in RCW 51. 32. 185( 3)
 evinces     its intent to limit the types        of cancers         covered under      the   statute.        But there is no

 corresponding limiting language in RCW 51. 32. 185( 4).


                                                               35
No: 43621 -3 -II



51. 32. 185( 1)( d) and that therefore it qualifies for the evidentiary presumption that Valley Fever

is an occupational disease under the Industrial Insurance Act.45

         Because Gorre' s Valley Fever is both a respiratory disease and an infectious disease
under    RCW 51. 32. 185( 1),     the evidentiary     presumption        of   firefighters'   occupational disease


applies; the Board, and the superior court erred in considering Gorre' s benefits claim without

according him the benefit of this presumption and instead, treating it as a regular occupational
disease claim under Title 51 RCW, improperly placing the initial burden of proof on Gorre. We

reverse and remand for the Board to apply the statutory presumption to Gorre' s claim, thus

shifting the burden to the City to show by a preponderance of the evidence that Gorre' s Valley
Fever did not qualify as an occupational disease under RCW 51. 32. 185.
                                                      REMEDY46

                                               III.


          Having held that Gorre' s respiratory and/ or infectious Valley Fever qualified for the
presumption of firefighter occupational disease under RCW 51. 32. 185, we next address how to

                                the superior court' s failure to apply the         presumption.     To ensure that
 remedy the Board' s      and




 Gorre   receives   the legislature' s clearly intended   benefit   of   RCW 51. 32. 185( 1), we remand to the


 Board to 'reconsider Gorre' s application for industrial insurance benefits, with instructions to

 accord Gorre this statutory presumption of occupational disease and to place on the City the



 45 Title 51 RCW.

 46 Because we reverse and remand to the Board to reconsider Gorre' s claim under the applicable
 law and the City does not prevail on appeal or on its cross appeal, we do not address the City' s
 argument that the superior court erred in failing to award statutory fees for deposition costs it
 incurred at the Board level under RCW 4. 84. 010 and RCW 4. 84.090.



                                                          36
No. 43621 -3 -11



burden of rebutting this presumption, if it can, by showing that Gorre' s presumed occupational
                                                                                          47
disease did        not arise   naturally   and   proximately from his        employment



                                                 IV. CITY' S CROSS APPEAL


          On cross appeal, the City argues that the superior court ( 1) erred in finding that Gorre

was not a smoker, (2) abused its discretion in "fail[ing] to strike" certain items of evidence, and

              in                        its statutory            Br.        Resp' t/Cross- Appellant   at   45.   The City' s
 3)   erred        failing to   award                   costs.         of




first and second arguments fail; because we reverse and remand, we 'do not address the third

argument.



                                  A. Gorre Not a Smoker under RCW 51. 32. 185( 5)


          The City argues that Gorre' s smoking history should preclude application of RCW

51. 32. 185'   s occupational        disease     presumption     to his benefits     claim.    Gorre responds that his


medical records and history established that he was not a smoker and provided substantial

evidence to support the Board' s and the superior court' s finding that he was not a smoker under

RCW 51. 32. 185.           And there is no evidence in the record to the contrary; thus, we agree with

 Gorre.




 47 Because the Boardhas not yet considered Gorre' s application with the benefit of the statutory
 presumption and its burden- shifting consequence, it is premature for us to address the City and
 the Department' s cross appeal request to hold that the City effectively rebutted the 'presumption
 by showing that Gorre did not incur any disease that arose naturally or proximately from his
 employment and,           therefore, did    not   qualify   as an " occupational    disease."   Br. ofResp' t at 28; Br.
 of Resp' t/Cross Appellant at 39_ See Raum, 171 Wn. App. at 151.

                                                                 37
    No. 43621 -3 -II



              The City is correct that RCW 51. 32. 185' s evidentiary presumption of occupational

    disease does not apply to a firefighter who is a regular user of tobacco products or who has a

    history of tobacco use:

                     Beginning July 1, 2003, this section does not apply to a firefighter who
              develops a heart or lung condition and who is a regular user of tobacco products
              or who   has    a   history   of   tobacco   use.     The department, using existing medical
              research, shall define in rule the extent of tobacco use that shall exclude a
              firefighter from the provisions of this section.


    RCW 51. 32. 185( 5).          The City is incorrect, however, that the evidence showed Gorre fell within

    this statutory tobacco user category.

              Neither the legislature nor the common law has defined the extent of tobacco use that

    qualifies for this RCW 51. 32. 185( 5) exclusion from the statutory presumption of occupational

    disease. But the Washington Administrative Code (WAC) has defined what constitutes a current

    and     former   smoker:       A " current    smoker" "       is a regular user of tobacco products, has smoked

    tobacco products at least one hundred times in his [ or] her lifetime, and as of the date of

    manifestation      did   smoke    tobacco     products at      least   some   days."   WAC 296 -14 -315.     The record


     does   not support a      finding      that Gorre is     a   current   smoker under      this definition.   A "former

     smoker" "   has a history of tobacco use, has smoked tobacco products at least one hundred times

     in his [ or] her lifetime, but as of the date of manifestation did not smoke tobacco products."

     WAC 296 -14 -315.         The record does not support a finding that Gorre was a former smoker under




                                                                     38



r
No. 43621 -3 -1I


                    48
this definition.         On the contrary, the record supports the Board' s and the superior court' s

finding that he was not a " smoker" under RCW 51. 32. 185( 5).
                     B. City' s Motion To Strike Evidence Presented in Superior Court

         The City next argues that the superior court should have stricken Gorre' s new evidence:

the Rose Environmental report about the indoor environmental quality at Gorre' s residence, Dr.

Goss' s declaration about Gorre' s medical history, Dr. Bollyky' s letter about Gorre' s Valley

Fever and how Gorre' s exposure was possibly work -
                                                  related, and Matthew Simmons' -testimony

about his own medical conditions and how they potentially arose from his employment as a

firefighter.      Gorre responds that the superior court did not err in admitting this evidence because

a superior court reviews a Board decision de novo. Again, we agree with Gorre.

         A superior court reviews decisions under the Industrial Insurance Act de novo, relying on

the   certified   Board    record.   Raum, 171 Wn.        App.    at   139 ( citing RCW 51. 52. 115).   Under RCW


51. 52. 115, a superior court may not receive evidence or testimony other than or in addition to the

evidence    before the Board         unless there were       irregularities in the Board' s      procedure.   RCW




 48 The City argues that the testimonies of Dr. Bardana, Dr. Eckert, and Dr. Weinstein establish
that Gorre was a former          smoker.        At most, however, the record shows that Gorre experimented
 with smoking cigarettes in his youth and had an occasional cigar between the ages of 20 and 30.
 City witnesses Dr. Eckert and Dr. Weinstein both testified that Gorre had quit smoking: Dr.
 Eckert stated that Gorre had quit smoking in 1990, and Dr. Weinstein testified that Gorre' s
 intake form      stated   that he had   quit   smoking   at age   30 ( 1998). Dr. Bardana testified that Gorre' s
 records showed that he had a chewing tobacco history, which he had stopped in 1997, but that
 Gorre' s history of sampling cigars and chewing tobacco amounted to minimal, minuscule
 amounts of tobacco exposure.
        Gorre also testified that he was not a smoker; that he had tried a cigarette once in fourth
 grade and in high school, that he had smoked cigars on special occasions, and that he had
 chewed tobacco when he played baseball. Gorre also testified that he had written that he did not
 smoke on his October 12, 2007 intake form for Dr. Kirkwood Johnston, his rheumatologist.
 Gorre had similarly written on his May 2, 2007 intake form for Dr. Goss that he did not smoke.


                                                             39
No. 43621 -3 -II



51. 52. 115.   A superior court has discretion to rule on a motion to strike evidence. King County

Fire Prot. Dist. No. 16 v. Hous. Auth. of King County, 123 Wn.2d 819, 825 -26, 872 P.2d 516

 1994).


          Contrary to the City' s argument, the Rose Environmental report was neither hearsay nor
                                                                   49
new evidence; rather    it was    part of   the Board     record,       which the superior court was entitled to


consider. Similarly, when the IAJ admitted Dr. Goss' s declaration into evidence, it became part

   the Board record,50 which the superior court was entitled to consider, despite the City' s

hearsay    characterization..   Because Gorre voluntarily withdrew Dr. Bollyky' s letter during the

superior court summary judgment hearing below, it is neither part of the record before us nor an

issue on appeal.

          The City also asserts that the IAJ ruled Simmons' medical testimony was irrelevant and

disallowed it; and thus, the superior court erred in failing to strike Gorre' s reference to Simmons'

hearsay testimony in      Gorre'   s   superior   court   brief.    The City mischaracterizes Gorre' s use of

Simmons' testimony:       Gorre did not use Simmons' testimony to further his summary judgment

arguments at the superior court level. Rather, Gorre merely explained to the superior court that




 49 The City had moved to exclude this report at the Board level, but the IAJ did not rule on it.
 Absent a ruling excluding this report, it remained part of the Board record. See RCW 51. 52.115.
 5° An administrative court is not bound to follow the civil rules of evidence; on the contrary,
 relevant hearsay evidence is admissible in administrative hearings. Nisqually Delta Ass' n v. City
 of Dupont, 103 Wn.2d 720, 733, 696 P. 2d 1222 ( 1985); Pappas v. Emp' t Sec. Dept.,                    135 Wn.
 App. 852, 857, 146 P. 3d 1208 ( 2006); Hahn v. Dep' t of Ret. Sys., 137 Wn. App. 933,                  942, 155
 P. 3d 177 ( 2007).     See     also   RCW 34. 05. 452( 1),        which summarizes the relaxed evidentiary
 standards in administrative hearings and broad discretion for the presiding officer.



                                                           40
No. 43621 -3 -II



Simmons' testimony "           was    disallowed         at    the [ Board of Industrial        Insurance Appeals] BIIA


hearing. "51 CP at 13.

                                                         CONCLUSION


          We hold that the superior court did not err or abuse its discretion as the City asserts on

cross appeal. Thus, we affirm both the superior court' s finding that Gorre was not a smoker and

the    superior   court' s decision       not    to   strike   the   evidence   Gorre      presented.   But we reverse the


superior    court' s   findings      of   fact    and    conclusions      of    law ( 1)     that Gorre did not have an


occupational       disease    under   RCW 51. 08. 140, (             2) that Gorre did not contract any respiratory

conditions arising naturally and proximately from his City employment, and (3) that the Board' s
decision    and     order    are   correct.           We also reverse the corresponding Board findings and

conclusions       that the   superior court affirmed:             Finding of Fact 1. 2; Conclusions of Law 2.2, 2. 3,

2.4.


          We reverse the superior court' s affirmance of the Board' s denial of Gorre' s RCW

51. 32. 185 firefighter-occupational- disease worker' s compensation claim; we .also reverse the

underlying Board decision denying Gorre' s claim. We remand to the Board for reconsideration
 of Gorre' s claim with instructions ( 1) to accord Gorre RCW 51. 32. 185' s evidentiary presumption




 51 In other words, Gorre never offered Simmons' medical testimony at the superior court level.
 Consequently, Simmons' testimony was not before the superior court and, thus, not subject to
 being stricken.



                                                                     41
No. 43621- 3- II



of occupational disease and ( 2) to shift the burden of rebutting this presumption to the City to

disprove this presumed occupational disease by a preponderance of the evidence that the disease

did not arise naturally or proximately out of Gorre' s employment.




                                                 42
