Washington High Court Says Valley Fever is Not Covered by Firefighters’ Presumption

Valley fever is not a “respiratory disease” for purposes of the state of Washington’s firefighters presumption [Wash. Rev. Code § 51.21.185(1)]; it is instead an “infectious disease” and is not listed among those diseases conditions for which the firefighter enjoys a presumption of work-relatedness, held a divided Supreme Court of Washington recently [Gorre v. City of Tacoma, 2015 Wash. LEXIS 898 (Aug. 27, 2015)]. Reversing the state’s Court of Appeals, the majority of the high court held that the firefighters presumption was a narrow exception to the Act’s general rule that workers must prove they suffer from an occupational disease. Consistent with that intent, the majority interpreted “respiratory disease” (for purposes of the presumption) to mean those diseases that the medical profession understood to be respiratory diseases. The majority also interpreted Wash. Rev. Code § 51.32.185(4) as the exclusive list of “infectious diseases” qualifying under the presumption. The majority added that this did not preclude firefighters with impaired breathing or other infectious diseases from obtaining workers’ compensation benefits; it just required them to prove causation just like any other injured worker.

Background

A firefighter for the city of Tacoma since 1997, Gorre fell ill shortly after returning to Washington from a trip to Las Vegas. 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. Most persons do not contract the disease and of those who do, the majority get better within a few weeks. According to the Centers for Disease Control, a few require anti-fungal medication.

Both the City and the Department of Labor rejected Gorre’s claim for workers’ compensation benefits. Gorre contended that he had a “respiratory disease” and an “infectious disease” under Wash. Rev. Code § 51.32.185(1) and accordingly, that the burden of proving a non-employment cause of valley fever shifted to his employer, the City. He 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.

An industrial appeals judge ruled that even if the presumption applied, the City had rebutted it, such that Gorre retained the burden of proving an employment-related exposure to valley fever. After further hearings, the Board adopted findings that valley fever was an infectious disease that Gorre likely acquired while in Nevada. A superior court affirmed.

The Court of Appeals reversed and remanded for a new evidentiary hearing, holding that Gorre was entitled to the firefighter presumptions for respiratory and infectious diseases [Gorre v. City of Tacoma, 180 Wn. App. 729, 324 P.3d 716 (2014). The Supreme Court granted the City’s petition for review [Gorre v. City of Tacoma, 181 Wn.2d 1033, 343 P.3d 760 (2015)].

Majority’s Opinion

The majority of the Supreme Court indicated that while the Court of Appeals had used a dictionary definition of “respiratory diseases,” it was more appropriate to define the term as it was used within the medical community. The majority indicated it believed “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.”

Continuing, the majority indicated that the legislature intended the presumption to cover respiratory diseases caused by exposure to smoke, fumes, and chemicals—hazards pervasive in fighting fires. Smoke, fumes and chemicals do not cause valley fever, indicated the majority. The majority acknowledged that firefighting is a dangerous profession, a fact the legislature recognized by enacting the firefighter presumption. Nevertheless, the legislature intended the statute’s presumptions to be narrow.

Turning to the scope of “infectious diseases” in Wash. Rev. Code § 51.32.185(1)(d)’s presumption, the majority indicated the issue was whether that general reference to infectious diseases included all infectious diseases, including valley fever, or only those listed in § 51.32.185(4). The majority disagreed with Gorre that the list was merely illustrative. After an extensive review of the legislative history behind passage of the statute, the majority concluded that Wash. Code Rev. § 51.32.185(4) limited the presumption in § 51.32.185(1)(d) to the infectious diseases expressly enumerated.

Dissent

Justice Johnson dissented, indicating that in exchange for firefighters’ willingness to compromise their own health and safety as a part of their occupation, the legislature had granted them a rebuttable presumption that certain afflictions–respiratory diseases, certain cancers, certain heart problems, and infectious diseases–are prima facie occupational diseases under § 51.08.140. The justice indicated the Court was obligated to construe the remedial exception broadly, in favor of those whose job puts them at higher risk for disease and infection. Johnson said the majority had found ambiguity where there was none and arrived at an interpretation of the statute that contravened the statute’s plain language and legislative intent.

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