WSIA

In a decision notable for its colorful and occasionally testy judicial language, as well as its unusual and unlikley holding, the Court of Appeals on Monday issued a published (and therefore precedential) decision allowing a firefighter cancer claim to proceed on a pension claim despite a prior final order determining the cancer was not work related.

It's another case of sympathetic facts + liberal construction equals unpredictable law and unfavorable precedent.

In 2011, Everett firefighter Michael Weaver underwent surgery to remove a melanoma spot from his shoulder, and applied for approximately $10,000 in back time loss for time he took off work to recover, alleging the melanoma was a presumed work-related occupational disease.

The city, Department, and Board of Industrial Insurance Appeals all disagreed with Weaver, and an appeal to Superior Court was eventually dismissed. Everett presented testimony of an oncologist and dermatologist about causation of the melanoma, while Weaver presented a family doctor's testimony.

Unfortunately, in 2014, the underlying melanoma had spread to become a brain tumor, which required surgery and rendered Weaver unable to return to work as a firefighter, with a difficult prognosis for recovery.

He applied for workers' compensation benefits again, this time seeking a pension. The City, Department, Board, and Superior Court rejected the application, reasoning that the work-relatedness of the melanoma was fully and finally adjudicated in the 2011 claim. 

That reasoning was wrapped up in the routinely applied principles of "collateral estoppel" and "res judicata," two legal doctrines that mean the same party can't later re-litigate the same issue or claim that has already been finally adjudicated.

Writing for the three-judge appellate panel, Judge Stephen Dwyer thought doctrines like these don't belong in administrative appeals like workers' compensation -- an "apples to oranges application [resulting] in a distasteful fruit salad of injustice."

Dwyer thought collateral estoppel didn't apply because Weaver didn't have enough economic incentive to pursue his initial time loss claim, since the amount of money at issue might have been exceeded by the costs of expert witnesses (even though the presumption statute allows an award of fees and costs for a prevailing firefighter). 

Dwyer thought res judicata didn't apply because a claim for time loss and a claim for a pension are not factually identical claims (even though both arise from the same underlying contended condition).  

After 32 pages of judicial opinion along these lines, with the court clearly (and understandably) sympathetic to Weaver, reasoning this way and that way to fashion a result that would allow the claim to proceed, one is left wondering:

• whether res judicata and collateral estoppel apply or not workers' compensation claims anymore? 
• whether an application for new benefits on a previously adjudicated injury or disease triggers a new "bite at the apple" of causation?
• more broadly, whether any order on causation or benefits is truly final if the underlying issues can be re-litigated in a new claim?     

It may fall to the Washington Supreme Court to decide. The city and Department have thirty days from Monday to ask the high court to step in and review the Court of Appeals decision.

Read the whole opinion here.