Washington Supreme Court decision raises serious questions about finality of workers' comp adjudications

Oct. 18, 2019


On October 17th, the Washington Supreme Court announced a unanimous decision in Weaver v. City of Everett, an appeal involving a firefighter with advanced stage melanoma, a self-insured city, and the Department of Labor & Industries.

By way of brief recitation of the facts, the firefighter filed a presumptive occupational disease claim in 2011 after a removed mole was found to be cancerous. At issue in the claim was about a month's worth of time loss. On the basis of expert witnesses, the city contested the work-relatedness of the condition, the Department denied the claim, and the denial was upheld up to the Superior Court level. Despite or perhaps because of the statutory presumption, Weaver did not put on much of a case in furtherance of his claim.  

In 2014, the melanoma found years earlier returned and unfortunately had now metastasized into a brain tumor which made it impossible to work. Weaver filed another workers' comp claim, this time seeking pension benefits. The Department rejected the claim because the work-relatedness of the melanoma had already been litigated and determined to be non-occupational. The Board upheld the denial on collateral estoppel grounds, as did the Superior Court. 

Then last year, the Court of Appeals reversed in a decision we noted at the time was as peculiar for its holding as it was for some of its language -- likening common law finality doctrines in administrative and judicial proceedings to apples and oranges and criticizing the "distasteful fruit salad of injustice" apparently served to the claimant.

The Court of Appeals held that Weaver's subsequent pension claim was not barred by collateral estoppel because he did not have enough economic incentive to fully and fairly litigate the issue of causation because, in the court's view, the cost of putting on a case would have outweighed the relief sought, about a month of time loss, this despite the fact the presumption statute promises the prevailing firefighter an award of costs and attorney's fees.

The Court of Appeals further held that res judicata did not bar the subsequent claim because a claim for time loss and a claim for a pension are two distinct claims under Title 51, even if both arise from the work-relatedness of the same underlying condition.

Without doing much more analytical heavy lifting, the Supreme Court affirmed the Court of Appeals in both regards. Basing its decision in principles of stopping "injustice" and furthering "public policy," the Supreme Court sent the claim back to the trial court for a new adjudication.

The Supreme Court's endorsement of the Court of Appeals' analysis was so complete that the opinion's concluding flourish even repeats the "distasteful fruit salad of injustice" utterance.

The Weaver decision raises a serious question about the finality of prior litigated orders. Prior to Weaver, the workers' compensation system has never been thought of as involving distinct "claims" for specific benefits, ripe at different stages of a worker's condition, but rather a single claim for allowance of an injury or disease as proximately caused by employment. 

The Supreme Court dismissed that reality as something "that may be true in theory," but as a matter of law would disincentivize workers from filing "initial, minor occupational disease claims due to concerns that denial of those claims would preclude potential, long-term major claims involving the same disease."  

It's fair to say that conception of how our workers' comp system has worked until now is novel.

WSIA led a coalition of eight statewide employer organizations in an amici curiae filing before the court, urging a contrary result. As we read the court's opinion, we looked for a limiting principle. Surely, the court would limit this otherwise sweeping holding, based more on gauzy notions of justice and public policy than statutes and precedents, and confine it to this one fact pattern? 

In the absence, really, of any such limiting principle, it remains to be seen whether any final order on causation is truly final anymore. 

Will Weaver go down as a one-off where the court willingly looked beyond things that may be "true in theory" in order to give a sympathetic claimant another shot at a pension, or will it fundamentally re-order workers' compensation practice, incentivizing scores of litigants to refile previously litigated claims, arguing they lacked sufficient economic motivation to pursue their appeal when it was "just" for time loss, or "just" for treatment (or so on), but now is for a much more valuable benefit like a pension?