Gorre v. City of Tacoma ( 2015 )

F ll E
1~1 Cl.i:RKS OFFICE
This opinion was flied for r'ecora
at ;' :ro· · : ·.
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
EDWARD 0. GORRE, )
) No. 90620-3
Respondent, )
)
v. ) En Bane
)
CITY OF TACOMA, )
)
Petitioner, )
)
and )
)
DEPARTMENT OF LABOR AND )
INDUSTRIES, ) Filed AUG 2 7 2015
)
Defendant. )
_________________ )
Yu, J.--This is an appeal from a denial of a workers' compensation claim.
Under the Industrial Insurance Act (Act), Title 51 RCW, a worker injured in the
course of employment suffers from an "occupational disease" and is entitled to
certain benefits. The burden of proving an occupational disease generally falls on
the worker. That is, to receive benefits an injured worker typically must show that
Gorre v. City of Tacoma, No; 90620-3
his or her injury arose naturally and proximately from employment. This case
involves an exception that shifts that burden in certain circumstances.
Under RCW 51.32.185(1), a firefighter who suffers from any of four
enumerated classes of injury receives a rebuttable evidentiary presumption that the
injury is an occupational disease. At issue here are two of those presumptive classes
of occupational disease:
( 1) In the case of firefighters . . . there shall exist a prima facie
presumption that: (a) Respiratory disease; . . . and (d) infectious
diseases are occupational diseases. . This presumption of
occupational disease may be rebutted by a preponderance of the
evidence ....
(4) The presumption [for infectious diseases] 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.
RCW 51.32.185 (emphasis added). A firefighter who does not qualify for
RCW 51.32.185(1)'s presumption may still receive benefits, but he or she retains
the burden of proof.
Edward 0. Gorre, a firefighter employed by the city of Tacoma (City), suffers
from valley fever (coccidioidomycosis). Gorre's diagnosis is not disputed. At issue
instead is whether valley fever is a "respiratory disease" or an "infectious disease"
under RCW 51.32.185(1)(a) or (d) that shifts the burden of proving the disease's
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Gorre v. City of Tacoma, No. 90620-3
proximate cause from Gorre to the employer City. The answer involves two
questions of statutory interpretation.
First, we must interpret "respiratory disease" in RCW 51.32.185(1)(a). Gorre
asks us to affirm the Court of Appeals, which adopted the term's ordinary dictionary
definition. The City urges us to interpret it as a term of art, limiting respiratory
diseases to what doctors diagnose as such. Second, we must interpret the scope of
RCW 51.32.185(1)(d)'s presumption for "infectious diseases" and specifically what
RCW 51.32.185(4) means by stating that the presumption "shall be extended to"
HIV and AIDS, hepatitis, meningitis, and tuberculosis. The issue is whether that list
of diseases is exclusive. The Court of Appeals held it was not, interpreting RCW
51.32.185(1 )(d) to cover every infectious disease, including valley fever.
We reverse the Court of Appeals and reinstate the superior court's judgment
in the City's favor. We conclude that "respiratory disease," as used in RCW
51.32.185(1 )(a), refers only to diseases that medical experts diagnose as respiratory
diseases. We also conclude that the "infectious diseases" qualifying for RCW
51.32.185(1)(d)'s evidentiary presumption are limited to those diseases specifically
enumerated in RCW 51.32.185(4 ). Because medical experts in Gorre's case testified
that valley fever is an infectious disease, not a respiratory one, and because it is not
one of the infectious diseases enumerated in RCW 51.32.185(4), the presumption
does not apply.
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Gorre v. City of Tacoma, No. 90620-3
BACKGROUND
A firefighter employed by the City since 1997, Gorre fell ill shortly after
returning to Washington from a trip to Las Vegas, Nevada. His diagnosis was
initially a mystery. Doctors went through several tentative diagnoses before a skin
biopsy tested positive for valley fever. Valley fever is a fungal infection endemic to
the desert southwest, including Nevada and especially California's San Joaquin
Valley (where the name derives). The fungus favors warm, dry climates, and though
it lives in the desert's arid soil, it releases spores into the air if the soil is disturbed.
Humans acquire valley fever by inhaling those spores.
Gorre filed for workers' compensation benefits with the City and the
Department of Labor and Industries. After both entities rejected his claim, Gorre
appealed to the Board of Industrial Insurance Appeals (Board). His administrative
appeal included both procedural and factual components. As to procedure, Gorre
asserted that he had a "respiratory disease" and an "infectious disease" under RCW
51.32.185(1 ), which shifted the burden of proving a nonemployment cause of valley
fever to the City. As to fact, Gorre alleged that he was exposed to the fungus from
responding to emergency calls on Interstate 5, where he inhaled spores transported
by vehicles traveling north from California. 1
1
Gorre also argued that he suffered from eosinophilic lung disease, separate from and in
addition to valley fever. But after hearing medical testimony, the Board found Gorre's only
diagnosis was valley fever. The Court of Appeals affirmed. Gorre v. City of Tacoma, 180 Wash.
4
Gorre v. City of Tacoma, No. 90620-3
After hearing extensive motions, an industrial appeals judge (IAJ) ruled that
even if RCW 51.32.185 applied, the City's initial evidence had rebutted the
presumption. The IAJ then held an evidentiary hearing where Gorre retained the
burden of proving an employment-related exposure to valley fever. Following
several days of testimony, the IAJ proposed a decision and order finding that valley
fever was an infectious disease that Gorre likely acquired in Nevada. Expert
· testimony supported these findings, and the Board adopted them. The Board
affirmed rejection of Gorre's benefits claim. The Pierce County Superior Court
likewise affirmed after a bench trial.
The Court of Appeals reversed and remanded for a new evidentiary hearing,
holding that Gorre was entitled to RCW 51.32.185(1 )'s presumptions for respiratory
and infectious diseases. Gorre v. City ofTacoma, 180 Wash. App. 729, 324 P.3d 716
(2014). We granted the City's petition for review. Gorre v. City of Tacoma, 181
Wash. 2d 1033,343 P.3d 760 (2015).
STANDARD OF REVIEW
A modified standard of review applies to workers' compensation appeals.
The Board's decision and order is presumed correct, and the party challenging that
decision carries the burden on appeal to the superior court. RCW 51.52.115. The
App. 729, 760, 324 P.3d 716 (2014). Since Gorre has not cross petitioned for review of that
finding, it is not before us.
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Gorre v. City of Tacoma, No. 90620-3
superior court can make its own findings or reach a different result only if the judge
finds by a preponderance of the evidence that the Board's findings and decision are
erroneous. Ravsten v. Dep 't ofLabor &Indus., 108 Wash. 2d 143, 146, 736 P.2d 265
(1987).
When reviewing the Board proceedings, we only examine "the record to see
whether substantial evidence supports the findings made after the superior court's
de novo review, and whether the court's conclusions oflaw flow from the findings."
Ruse v. Dep'tofLabor &Indus., 138 Wash. 2d 1, 5-6,977 P.2d 570 (1999). However,
statutory interpretation remains a question of law we determine de novo. Cockle v.
Dep't ofLabor &Indus., 142 Wn.2d 801,807, 16 P.3d 583 (2001).
ANALYSIS
A. INTERPRETATION OF "RESPIRATORY DISEASE" INRCW 51.32.185(l)(a)
We first consider if valley fever is a "respiratory disease" under RCW
51.32.185(1 )(a). This is a question of statutory interpretation,2 so we begin with the
plain meaning of the term. Dep 't ofEcology v. Campbell & Gwinn, LLC, 146 Wash. 2d
1, 11, 43 P.3d 4 (2002). Plain meaning is "discerned from the ordinary meaning of
2
The briefing somewhat mischaracterizes the issue as whether a certain medical condition
is a "respiratory disease" is a question of law or fact. What "respiratory disease" means in RCW
51.32.185(1)(a) is undisputedly a question of law susceptible to judicial review. Cockle, 142
Wash. 2d at 807. And whether a firefighter has a "respiratory disease"-whatever its statutory
meaning-is a fact question reserved for the fact finder. So the real dispute here is how to interpret
"respiratory disease" in RCW 51.32.185(1 )(a), and specifically if the legislature intended the term
to carry its ordinary or medically accepted meaning.
6
Gorre v. City of Tacoma, No. 90620-3
the language at issue, the context of the statute in which that provision is found,
related provisions, and the statutory scheme as a whole." Tingey v. Haisch, 159
Wash. 2d 652, 657, 152 P.3d 1020 (2007). Our ultimate task, of course, is to ascertain
and carry out the legislature's intent. Campbell & Gwinn, 146 Wash. 2d at 9.
Because the Act does not define "respiratory disease," the Court of Appeals
turned to an ordinary dictionary. The Court of Appeals merged the ordinary
definitions of "respiration" and "disease" and concluded the plain meaning of
"respiratory disease" is any "discomfort or condition of an organism or part that
impairs normal physiological functioning relating, affecting, or used in the physical
act of breathing." Gorre, 180 Wash. App. at 762-63. Dictionaries are an appropriate
source of plain meaning when the ordinary definition furthers the statute's purpose.
State v. Veliz, 176 Wash. 2d 849, 854, 298 P.3d 75 (2013).
But the ordinary definition of a term is not dispositive of a statute's plain
meaning when the term is also a term of art. !d. "Respiratory disease" has a unique
meaning in the medical community, which uses the term to refer to a category of
specific diagnoses that share certain pathologies. This is different than the broad
ordinary definition, so we must ascertain the legislature's intent and choose the
meaning that best furthers the statute's intended purpose. Campbell & Gwinn, 146
Wash. 2d at 9. Did the legislature intend to presume that any effect on breathing is an
occupational disease acquired while firefighting, consistent with the ordinary
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Gorre v. City of Tacoma, No. 90620-3
definition of respiratory disease? Or did it intend the presumption to apply only to
specific diseases that doctors diagnose as respiratory diseases? For three reasons,
we hold that interpreting "respiratory disease" as a term of art better reflects the
legislature's purpose in enacting RCW 51.32.185(1)(a).
First, interpreting "respiratory disease" as a specific category of diagnoses
rather than a broad category of symptoms fits with the mechanics of RCW
51.32.185(1 )(a). The statute is simply a shortcut for proving medical causation-
i.e., that job conditions caused an occupational disease. Causation is a specialized
area where the legislature and the courts have always deferred to expert diagnosis.
See Dennis v. Dep 't of Labor & Indus., 109 Wn.2d 467,477,745 P.2d 1295 (1987);
Parr v. Dep 't ofLabor & Indus., 46 Wash. 2d 144, 145,278 P.2d 666 (1955); Ehman v.
Dep't of Labor & Indus., 33 Wn.2d 584,600,206 P.2d 787 (1949). Gorre responds
that the ordinary definition of "respiratory disease" still requires evidence that his
breathing is impaired. But testimony about symptoms is a step removed from a
doctor's opinion about the symptoms' underlying cause. We do not believe the
legislature meant to minimize the significance of medical opinion to claims under
the Act when it drafted RCW 51.32.185(1)(a).
Second, the relationship between RCW 51.32.185(1)(a)'s presumption and
RCW 51.32.185(1 )(b)-( d)'s three presumptions supports interpreting "respiratory
disease" as a term of art. RCW 51.32.185(1)'s four presumptions vary in scope
8
Gorre v. City of Tacoma, No. 90620-3
depending on the specific injury. For example, the legislature created a presumption
for all respiratory diseases, but it limited the presumptions for cancers, heart
conditions, and, as discussed below, infectious diseases. RCW 51.32.185(1)(a)-(d),
(3), (4). Using the ordinary meaning of "respiratory disease," however, results in
RCW 51.32.185(1)(a) becoming a "super presumption" that undermines the express
limits on the ?ther presumptions.
For example, the legislature omitted lung cancer from the list of cancers
entitled to RCW 51.32.185(1)(c)'s presumption. RCW 51.32.185(3). Yet under the
ordinary definition, lung cancer would almost certainly qualify for the respiratory
disease presumption because it invades an organ critical to breathing. Likewise,
RCW 51.32. 185(1 )(b) applies only to heart problems experienced shortly after
certain firefighting activities. But if a heart problem occurs too late for that
presumption, it becomes a respiratory disease as long as breathing is also impaired.
In other words, the Court of Appeals interpretation allows claimants to plead around
the statutory limits in RCW 51.32.185. We believe the legislature intended RCW
51.32. 185(1 )(a) to cover only what doctors diagnose as a respiratory disease and not
what claimants strategically label as one.
Third, interpreting "respiratory disease" as a term of art is consistent with the
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Gorre v. City of Tacoma, No. 90620-3
presumption's intended scope. When the legislature enacted RCW 51.32.185(1 )(a), 3
it justified the presumption by citing an evidentiary link between "respiratory
diseases," as the term is used in the statute, and firefighters' routine exposure to
"smoke, fumes, and toxic or chemical substances." LAWS OF 1987, ch. 515, § 1.
Thus, the legislature necessarily intended RCW 51.32.185(1)(a) to cover respiratory
diseases caused by exposure to smoke, fumes, and chemicals-hazards pervasive in
fighting fires.
Yet smoke, fumes, and chemicals do not cause valley fever. As an expert in
Gorre's case testified, valley fever results from exposure to a fungus that dies in
fire's extreme heat. This illustrates the problem with using the ordinary definition
of ''respiratory disease." Interpreting RCW 51.32.185(1)(a) to include respiratory
diseases unrelated to smoke and chemical inhalation broadens the scope of
presumption beyond the legislature's underlying evidentiary justification for it. It
leads to the presumption covering any impairment to breathing, even if the
condition-like valley fever-has no established connection to the risks inherent in
firefighting.
Unfortunately the dissent adopts an interpretation of"respiratory disease" that
3
The respiratory disease presumption was originally codified at former RCW
51.32~ 185(1 ). LAws OF 1987, ch. 515, § 2. As discussed below, the legislature amended the statute
in 2002 to add presumptions for cancers, heart problems, and infectious diseases, LAws OF 2002,
ch. 337, § 2, and the respiratory disease presumption was recodified at RCW 51.32.185(1)(a).
10
Gorre v. City of Tacoma, No. 90620-3
is not consistent with risks connected to fighting fire. Instead, the dissent concludes
that because firefighting is risky and because valley fever is acquired through
inhalation, the legislature must have intended the disease to be a "respiratory
disease" under RCW 52.31.185(1)(a). Dissent at 4-5. While the dissent assures us
that adopting a layperson's definition preserves the importance of doctors testifying
about a "disease's causation and its effects," id. at 5, interpreting valley fever as a
respiratory disease undercuts the value of that very testimony in Gorre's case:
Q. . .. Dr. Ayars is Valley Fever an infectious disease?
A. Yes.
Q. Is it an infectious disease that can cause respiratory symptoms?
A. Yes.
Q. In your professional medical opmwn what are the chances that
Lieutenant Gorre acquired Valley Fever in Washington State? Can you
assign a number or percentage?
A. Well, right now we have zero to start with. I guess, you could say one
in a million. The people that could potentially be at risk are people that
are gardeners .... [A]s far as trying to link it to firefighters, there is
absolutely no link there.
Tr. ofBd. Proceedings (June 14, 201 0) at 362-68 (emphasis added). Despite the fact
that the medical community does not consider valley fever either a respiratory
disease or a disease common to firefighting, the dissent concludes the legislature
would have intended the presumption to apply nonetheless. We believe otherwise. 4
4 The dissent also suggests that, though the layperson's definition of"respiratory disease"
is an appropriate interpretation here, it "may no longer be helpful" in other cases. Dissent at 4 n.2.
We agree that the triggering of RCW 51.31.185(1 )(a)'s presumption depends on the facts of each
case, but those differences go to application of the statute, not its interpretation. This supports
our view that "respiratory disease" is a term of art to be applied by medical experts.
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Gorre v. City of Tacoma, No. 90620-3
There is no doubt firefighting is a dangerous profession, a fact the legislature
recognized by enacting RCW 51.32.185. But our appreciation for the work
firefighters do is not a license to discard the ample evidence that the legislature
nonetheless intended the statute's presumptions to be narrow. For all the above
reasons, we interpret "respiratory disease" in RCW 51.32.185(1)(a) as a term of art
to mean only those diseases the medical profession understands to be respiratory
diseases. In practice, this requires medical expert testimony that a claimant's disease
is a respiratory disease, not merely testimony that it affects breathing.
B. INTERPRETATION OF "INFECTIOUS DISEASES" IN RCW 51.32.185(1 )(d)
We turn next to the scope of RCW 51.32.185(1)(d)'s presumption for
"infectious diseases." The issue is whether that general reference to infectious
disease includes all infectious diseases (including valley fever), or whether the
presumption is limited by RCW 51.32.185(4):
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.
The parties disagree about the effect ofRCW 51.32.185(4). Gorre argues it is merely
illustrative of possible infectious diseases; the City responds that the list is an
exclusive definition of"infectious diseases" qualifying under RCW 51.32.185(1 )(d).
This question turns on what the legislature intended by "extending" the infectious
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Gorre v. City of Tacoma, No. 90620-3
disease presumption to certain diseases.
We again start with the statute's plain meaning. If the text has only one
reasonable meaning, it is unambiguous and we give it that effect. Campbell &
Gwinn, 146 Wash. 2d at 11-12. Unlike "respiratory disease," "extend" is not a term of
art in this context, so a dictionary is an appropriate starting point. Gorre reads
"extend" to mean "increase the scope, meaning, or application of," as in the diseases
enumerated in RCW 51.32.185(4) "increase the scope of' the infectious disease
presumption described in RCW 51.32.185(1 )(d). He bolsters his definition by noting
different verbs to modify the cancer and infectious disease presumptions in RCW
51.32.185. The legislature clearly drafted RCW 51.32.185(3) to restrict RCW
51.32.185(1)(c)'s cancer presumption, which "shall only apply to" the specific
cancers it identifies. Gorre argues that RCW 51.32.185(4) is not as unambiguously
limiting, perhaps indicating a different intended effect. The City responds with a
competing definition that means "to reach in scope or application," arguing RCW
51.32.185(4) therefore limits the scope ofRCW 51.32.185(1)(d).
Even with the benefit of context, however, there is not a single, reasonable
interpretation of "shall be extended to" that makes RCW 51.32.185(4)
unambiguous. 5 We must therefore resort to other aids of statutory interpretation to
5 For example, Gorre's interpretation is strained. Since the diseases listed in subsection (4)
are infectious diseases, they would already qualify under RCW 51.32.185(1)(d)'s presumption for
"infectious diseases." And if RCW 51.32.185(1 )(d) subsumes the diseases listed in RCW
13
Gorre v. City of Tacoma, No. 90620-3
resolve that ambiguity. State v. A.G.S., 182 Wash. 2d 273, 277-78, 340 P.3d 830
(2014). And one of those aids-legislative history-ends our analysis. It offers
conclusive evidence that RCW 51.32.185(4) limits, not expands, RCW
51.32.185(1 )(d).
The legislature added the infectious disease presumption to RCW 51.32.185
in 2002 after extended negotiations between two primary stakeholders. Firefighters
lobbied in support, arguing that while they were routinely exposed to contagious
bodily fluids on the job, it was difficult to prove a specific employment-related
exposure. The firefighters' employers, cities and fire commissioners, were
concerned about the cost of insurance premiums increasing with the number of
presumptively covered diseases. H.B. REP. ON H.B. 2663, 57th Leg., Reg. Sess.
(Wash. 2002). The goal was to agree on a bill that "represent[ed] a compromise with
no opposition." S.B. REP. ON SECOND SUBSTITUTE H.B. 2663, at 2, 57th Leg., Reg.
Sess. (Wash. 2002).
The bill's three sequential drafts chronicle those negotiations. As first
introduced, House Bill (HB) 2663 was significantly broader than the presumptions
ultimately enacted. For example, the presumption for cancers, which was also added
51.32.185(4), it is hard to read it as increasing the presumption's scope. The scope of RCW
51.32.185(1 )(d), with or without RCW 51.32.185(4), is still any infectious disease. Likewise, the
City's interpretation that RCW 51.32.185(1)(d) "reaches" the diseases in RCW 51.32.185(4) does
not necessarily preclude the presumption from also reaching other diseases.
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Gorre v. City of Tacoma, No. 90620-3
in 2002, originally covered all cancers affecting a number of organ systems, not just
the specific cancers in today's statute. Compare H.B. 2663, at 2, 57th Leg., Reg.
Sess. (Wash. 2002) (applying cancer presumption to "cancers affecting the ...
lymphatic, digestive, hematological, urinary, skeletal, oral, or reproductive
systems"), with RCW 51.32.185(3) (limiting cancer presumption to "prostate cancer
diagnosed prior to age fifty, primary brain cancer, malignant melanoma, leukemia,
non-Hodgkin's lymphoma, bladder cancer, ureter cancer, colorectal cancer, multiple
myeloma, testicular cancer, and kidney cancer"). Likewise, HB 2663 did not
identify any specific infectious diseases. H.B. 2663, 57th Leg., Reg. Sess. (Wash.
2002). The cities opposed this first draft as too expensive, their representative
expressing "concern . . . that right now [the presumption's language] is just
'infectious diseases.'" 6 A legislator who sponsored the bill agreed that "the scope .
. . need[ ed] to be narrowed." 7
The bill's second draft clearly addres~ed the concern that the infectious
disease presumption was too inclusive. Substitute HB 2663 limited the presumption
to four specific diseases by adding a subsection (4):
(4) For the purposes of this act, "infectious disease" means
acquired immunodeficiency syndrome, all strains of hepatitis,
meningococcal meningitis, and mycobacterium tuberculosis.
6
Hr'g on H.B. 2663 Before the H. Commerce and Labor Comm., 57th Leg., Reg. Sess.
(Jan. 28, 2002), at 92 min., 57 sec., audio recording by TVW, Washington State's Public Affairs
Network, http://www.tvw.org.
7
Id. at 91 min., 48 sec.
15
Gorre v. City of Tacoma, No. 90620-3
SUBSTITUTE H.B. 2663, at 2, 57th Leg., Reg. Sess. (Wash. 2002) (emphasis added).
Representatives for both sides testified they accepted this limitation. Their focus
then turned to narrowing the cancer presumption, which still broadly covered
cancers of many body systems. See H.B. REP. ON H.B. 2663, 57th Leg., Reg. Sess.
(Wash. 2002).
The bill's final draft, Second Substitute HB 2663, finally narrowed the list of
cancers. SECOND SUBSTITUTE H.B. 2663, at 3, 57th Leg., Reg. Sess. (Wash. 2002)
(as passed by legislature). Yet it also modified subsection (4) to its current form:
The presumption established in subsection (1) (d) of this section shall
be extended to any fire fighter who has contracted any of the following
infectious diseases: Human immunodeficiency virus/acquired
immunodeficiency syndrome, all strains of hepatitis, meningococcal
meningitis, or mycobacterium tuberculosis.
!d. (emphasis added). The addition of "shall be extended to" is not explained in the
written legislative record, which characterizes the change to subsection (4) only as
a "[t]echnical correction[ ] ... to clarify the references to ... HIV/AIDS." H.B.
REP. ON H.B. 2663, at 4, 57th Leg., Reg. Sess. (Wash. 2002). The new language
may have come from a companion senate bill that also "extended" its infectious
disease presumption to the same diseases. 8 See SUBSTITUTE S.B. 6643, 57th Leg.,
Reg. Sess. (Wash. 2002).
8
Notably, the senate interpreted subsection (4) in its bill as "limit[ing] the types of
infectious diseases for which a presumption of occupational disease is established." S.B. REP. ON
SUBSTITUTE S.B. 6643, at 1, 57th Leg., Reg. Sess. (Wash. 2002). The first draft of the senate bill,
like HB 2663, left infectious diseases undefined. S.B. 6643, 57th Leg., Reg. Sess. (Wash. 2002).
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Gorre v. City of Tacoma, No. 90620-3
Gorre argues the change to subsection (4)-eventually codified at RCW
51.32.185(4)-signals that the legislature intended to enlarge the infectious disease
presumption. But that inference is at odds with the uniform interpretation of those
involved in drafting the law. See State v. Evans, 177 Wash. 2d 186, 199, 298 P.3d 724
(2013) (using "probative committee hearings" to derive legislative intent). After the
house passed Second Substitute HB 2663, the sponsoring representative testified
before members of the senate to urge its passage in that chamber:
This bill passed unanimously out of the House ... due to the fact that
we sat down with the firefighter organizations, with the fire districts,
and with the cities and worked out a compromise .... [T]he compromise
on this bill is really in the last section of that bill ... where we basically
define the cancers ... and also restrict the infectious diseases and hence
we kind of reduce the cost ofthis. 9
The stakeholders echoed a restrictive interpretation of subsection (4). The
firefighters' representative testified that negotiations had "very much narrowed the
scope of this particular bill. ... The cancers have been limited ... [and] the infectious
diseases are limited to just those four diseases that have been listed in the text of the
bill." 10 The cities' representative likewise cited subsection (4)'s "narrowed
definition of infectious diseases" as a reason the cities withdrew their previous
9
Hr'g on Second Substitute H.B. 2663 Before the S. Labor, Commerce and Fin. Inst.
Comm., 57th Leg., Reg. Sess. (Feb. 25, 2002), at 25 min., 55 sec., audio recording by TVW,
Washington State's Public Affairs Network, http://www.tvw.org (emphasis added).
10
Hr'g on Second Substitute H.B. 2663 Before the S. Ways and Means Comm., 57th Leg.,
Reg. Sess. (Mar. 1, 2002), at 51 min., audio recording by TVW, Washington State's Public Affairs
Network, http://www.tvw.org (emphasis added).
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Gorre v. City of Tacoma, No. 90620-3
opposition to the bill. 11 The senate passed Second Substitute HB 2663 without
amendment, and it wasincorporated into RCW 51.32.185. LAWS OF 2002, ch. 337,
§ 2. The final bill report also treats subsection (4) as a limiting provision. FINAL B.
REP. ON SECOND SUBSTITUTE H.B. 2663, 57th Leg., Reg. Sess. (Wash. 2002).
While curious, the change to RCW 51.32.185( 4) does not overcome the
conclusive history that the provision limits the infectious disease presumption. From
the outset, the stakeholders and legislators acknowledged the original bill was
overbroad. Each successive draft addressed that concern, first in Substitute HB 2663
by enumerating certain infectious diseases, and then in Second Substitute HB 2663
by narrowing the number of cancers. This is a clear trend of whittling the
presumptions, not expanding them. Cf Lewis v. Dep 't ofLicensing, 157 Wash. 2d 446,
4 70, 139 P .3d 1078 (2006) (sequential drafts of a bill can indicate legislative intent).
Instead of interpreting the statute consistent with this trend, Gorre asks us to infer
that in the final stages of negotiation, the legislature eschewed compromise and
revived an expansive infectious disease presumption that it had already outright
rejected. Nothing in the legislative record supports such an abrupt shift in policy.
Considering the legislative record as a whole, we hold that RCW 51.32.185(4)
limits the presumption in RCW 51.32.185(l)(d) to the infectious diseases expressly
enumerated.
11
Id. at 52 min., 35 sec.
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Gorre v. City of Tacoma, No. 90620-3
CONCLUSION
RCW 51.32.185 is a narrow exception to the Act's general rule that workers
must prove they suffer from an occupational disease. Consistent with that intent, we
interpret "respiratory disease" in RCW 51.32.185(1)(a) to mean those diseases that
the medical profession understands to be respiratory diseases. We also interpret
RCW 51.32.185(4) as the exclusive list of "infectious diseases" qualifying under
RCW 51.32.185(1 )(d). This does not preclude firefighters with impaired breathing
or other infectious diseases from obtaining workers' compensation benefits; it just
requires them to prove causation just like any other injured worker.
We reverse the Court of Appeals and reinstate the superior court's judgmentP
12
Substantial evidence supports the superior court's findings and the court's legal
conclusions flow from those findings. See Ruse, 138 Wash. 2d at 5-6. The superior court adopted
the Board's findings that valley fever was an infectious disease, not a respiratory one, and that
Gorre's exposure occurred in Nevada. The superior court concluded that Gone failed to show he
suffered an occupational disease under the Act.
Substantial evidence exists if a rational trier of fact could find the facts by a preponderance
of the evidence; unchallenged findings are verities on appeal. In re Welfare of A. W., 182 Wash. 2d
689, 711, 44 P.3d 1186 (2015) (citing Merriman v. Cokeley, 168 Wash. 2d 627, 631, 230 P.3d 162
(20 10)). Not only does Gorre fail to challenge valley fever's classification as an infectious disease,
his briefs rely on it. And the City's medical experts testified on a more probable than not basis
that Gorre was exposed to the fungus while golf1ng in Las Vegas.
The superior court's legal conclusion that Gorre's valley fever is not an occupational
disease flows from those two findings. An occupational disease must "arise[ ] naturally and
proximately out of employment." RCW 51.08.140. Golf1ng in Nevada is not naturally or
proximately connected to firefighting in Washington. Reinstatement of the superior court's
judgment is therefore the appropriate remedy.
19
Gorre v. City of Tacoma, No. 90620-3
WE CONCUR:
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Gorre v. City of Tacoma
Dissent by Johnson, J.
No. 90620-3
JOHNSON, J. (dissenting)-This case involves the Industrial Insurance
Act's (IIA) 1 evidentiary exception designed to benefit and protect our state's
firefighters. In exchange for firefighters' willingness to compromise their own
health and safety as a part of their occupation, the legislature grants them a
rebuttable presumption that certain afflictions-respiratory diseases, certain
cancers, certain heart problems, and infectious diseases-are prima facie
occupational diseases under RCW 51.08.140. We are obligated to construe this
remedial exception broadly, in favor of those whose job puts them at higher risk
for disease and infection. But in applying that statute, the majority finds ambiguity
where there is none and arrives at an interpretation of the statute that contravenes
the statute's plain language and legislative intent. For the foregoing reasons, I
respectfully dissent.
1
Title 51 RCW.
Gorre v. City o.fTacoma, No. 90620-3
(Johnson, J., dissenting)
Statutory Interpretation
The IIA provides certain benefits to employees who suffer from
occupational diseases. To qualify for benefits, a claimant generally bears the
burden of establishing causation between the workplace conditions and the disease.
RCW 51.32.185(1) flips this burden with respect to those diseases firefighters are
most susceptible to as a class: relevant to this case, we presume that "[r]espiratory
disease[s]" and "infectious diseases" are caused by the nature of their work. RCW
51.32.185( 1)(a), (d). As discussed by the majority, the IIA does not provide a
definition for "respiratory diseases" or "infectious diseases," and it is our
obligation to interpret those terms in accord with legislative intent. We start that
analysis with the purpose of the statute at issue.
The legislature specifically recognized that firefighters as a class suffer a
higher rate of lung disease than the general public due to their regular exposure to
not just smoke and fumes but also toxic or chemical substances. LAws OF 1987, ch.
515, § 1. The legislature conferred this benefit in order to ease the evidentiary
burden for firefighters, whose employment puts their health and safety at risk.
Because the IIA "is remedial in nature," we are required to 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
2
Gorre v. City ofTacoma, No. 90620-3
(Johnson, J., dissenting)
worker." Dennis v. Dep 't of Labor & Indus., 109 Wn.2d 467,470, 745 P.2d 1295
(1987).
Through that lens, the Court of Appeals correctly recognized that valley
fever--a disease that "is transmitted through inhalation" and "'impairs a person's
respiratory system"--constitutes both a "respiratory disease" and an "infectious
disease" under the statute. 2 Gorre v. City ofTacoma, 180 Wash. App. 729, 763, 324
P.3d 716 (2014), review granted, 181 Wash. 2d 1033, 343 P.3d 760 (2015). I agree
with the Court of Appeals that valley fever constitutes both types of diseases and
that both exceptions qualify Gorre for the rebuttable presumption.
Respiratory Disease
It is well settled that when a term is not defined by statute, the court may
look to the dictionary to give the undefined term meaning. Ultimately, the court
will adopt the interpretation that best advances the legislative purpose, but so long
as the dictionary provides a definition consistent with legislative intent, it is an
(.).ppropriate source for interpretative guidance. LaCoursiere v. Camwest Dev., Inc.,
181 Wash. 2d 734, 742, 339 P.3d 963 (2014).
2
These statutory terms do not purport to be mutually exclusive, and this court should
refrain from reading a nonexistent limitation into what should have been a broad reading of the
statutory exception.
3
Gorre v. City ofTacqrna, No. 90620-3
(Johnsori, J., dissenting) ·
Here, the Court of Appeals looked to the dictionary, which defines (1)
'"respiratory' as 'of or relating to respiration,"' wherein "respiration" means the
"'single, complete act of breathing,"' and (2) "'disease' as a 'cause of discomfort
or harm,' or 'an impairment of the normal state of the living animal or plant body
or any of its components that interrupts or modifies the part of the vital functions.'"
, Gorre, 180 Wash. App. at 762 (footnote omitted) (quoting WEBSTER'S THIRD NEW
INTERNATIONAL DICTIONARY 1934, 648 (2002)). Thus, "respiratory disease" is a
condition of the respiratory system that causes discomfort or harm, impairing the
normal physiological functioning relating to, affecting, or used in the physical act
of breathing.
The dictionary definition reflects a common, layperson's understanding of
"respiratory disease," and here it serves as an appropriate guide for interpretation.
Where the legislative intent is to afford an exception to firefighters in recognition
that they expose their lungs to all sorts of chemicals and substances, it follows that
the legislature would intend to include those diseases, like valley fever, that are
contracted through inhalation, infect the lungs, and cause serious damage to the
respiratory system. 3
---------------
3Vve address only the cases before us, but to the extent the dictionary definition could be
applied to different facts in a manner that is incongruous with legislative intent, the dictionary
definition may no longer be helpful. Here, the dictionary definition aptly serves as an
4
Gorre v. City o.fTacoma, No. 90620-3
(Johnson, J., dissenting)
The majority adopts a much narrower definition, reasoning in part that the
exception serves as a shortcut to proving causation, which typically requires a
plaintiff to present extensive medical expert testimony. Therefore, the legislature
. . .
must have fntended that "respiratory disease" consists of only those diseases that
fall within the technical, medical definition.
The rnajority's analysis diminishes the larger purpose of the statute by
focusing instead on its ancillary features. As discussed by the majority, the
importance of expert medical testimony can certainly be inferred from the statute
and legislative history; but the primary goal of the statute is to provide an
evidentiary shortcut for certain diseases in recognition that airborne contaminants
are a comm~m cause of ~isease among firefighters. The majority's definition of
"respiratory disease" could potentially exclude a whole host of other diseases, like
valley fever, that are caused by inhaling contaminated air, but may be
characterized by the medical community in a way that the legislature could not
have predicted. This is why it is the role of medical experts to testify as to the
medical aspects of the disease-such as the disease's causation and its effects-but
it is within the proper ambit of the court to determine whether the legislature likely
interpretative guiding tool for determining whether valley fever constitutes "respiratory disease"
under the statute. ·
5
Gorre v. City ofTacoma, No. 90620-3
(Johnson, J., dissenting)
intended the exception to apply. Here, expert medical testimony established that
valley fever is caused by the inhalation of toxic spores into the lungs, which causes
serious respiratory and pulmonary symptoms. The me~ical community may
categorize the disease differently, but a broader, ordinary interpretation of the term
confirn1s· our commitment to reading remedial statutes broadly and better reflects
.169 Wash. 2d 815,
820,239 P.3d 354 (2010).
The ordinary meaning ofRCW 51.32.185(1)(d) is that the evidentiary
exception applies to "infectious diseases." Subsection (4), by its ordinary meaning,
·~ >lt'equires that the term "infectious diseases" extend to four enumerated diseases. As
recognized by the Court of Appeals, the phrase "shall be extended to" evinces the
clear legislative intent to ensure the inclusion of four specific types of infectious
diseases. Nothing within this subsection should be read to limit the coverage of
infectious diseases generally.
Instead of ~pplying the statute's plain meaning, the majority delves into
legislativ~ history_, insisting that.the statute is ambiguous because subsection (4)
coul.d be read as creating an exclusive list. But the majority manufactures this
ambiguity. The language of this subsection does not contain any limiting phrases,
nor by its terms does the subsection even suggest a limitation of the exception to
the enumerated list. Subsection (4) purports to do nothing more than ensure
coverage for four specified types of infectious diseases. The majority disagrees,
reasoning
.
that when the. legislature said "shall extend to," it might have actually
' .
meant "shall only extend to." But this interpretation of the statute requires an
7
Gorre v. City o.fTacoma, No. 90620-3
(Jbhnson, J., dissenting)
infere.nce that the legislature omitted the word "only" out of either sloppiness or
mistake.
I disagree that such ambiguity exists. The legislature is perfectly proficient
at drawing statutes carefully and will include limiting language when it intends to
create a limitation. In fact, the legislature demonstrated its ability to do so in the
dwo subsections immediately preceding subsection (4):
(2) The presumptions established in subsection (1) of this
section shall be extended to an applicable member following
termination of service for a period of three calendar months for each
year of requisite service, but may not extend more than sixty months
following the last date of employment.
(3) The presumption established in subsection ( 1)(c) of this
section[, cancer,] shall onjy_ apply to any active or former firefighter
tvho has cancer that develops or manifests itself after the firefighter
has served at least ten years .... The presumption within subsection
(I)( c) of this section shall9nly apply to prostate cancer diagnosed
prior to the age of fifty, primary brain cancer, malignant melanoma,
· leukemia, non.:.Hodgkin's lymphoma, bladder cancer, ureter cancer,
colorectal cancer, multiple myeloma, testicular cancer, and kidney
cancer.
RCW 51.32.185 (emphasis added).
It is unlikely that the legislature, having expressly limited the exception's
scope in both subsections (2) and (3), suddenly forgot how to do so when drafting
subsection (4 ). It is also an unreasonable interpretation of the statute to assume this
to be the·case. The language ofthese preceding subsections is the strongest
8
GQrre v. City.ofTacoma, No. 90620--3
(Johnson; J., dissenting)
conceivable evidence that the legislature knows how to create an exclusive list
when it wants to but that it chose not to do so with respect to infectious diseases. It
is inappropriate to delve into legislative history when the meaning of this provision
is plain on its face. To replace the plain meaning of the statute with our own
derived interpretation is to deprive the legislature of its own chosen words and
:iCarefully selected omissions and, in essence, rewrites the statutory language.
I would hold that the statute plainly covers infectious diseases and provides
only an additional assurance that certain diseases fall within the statutory definition
of "infectious disease." If the legislature intends to limit the scope of the exception
with respect to infectious diseases, it is within its proper authority to revise the
statute as h sees fit. But it is not the role of the court to read in language not
present in the statute. Because it is undisputed that valley fever constitutes an
"infectious disease," it is covered by the statute and Gorre should have been
9
Gorre v. City ofTacoma, No. 90620-3
(Johnsori, J., dissenting)
entitled to the presumption in his favor. I respectfully dissent.
10