Weaver v. City of Everett

• Decision Date: 16 July 2018
• Docket Number: No. 76324-5-I,76324-5-I
• Citation: 421 P.3d 1013
• Court: Washington Court of Appeals
• Parties: Michael WEAVER, Appellant, v. CITY OF EVERETT and State of Washington, Department of Labor and Industries, Respondents.

421 P.3d 1013

Michael WEAVER, Appellant,

v.CITY OF EVERETT and State of Washington, Department of Labor and Industries, Respondents.

No. 76324-5-I

Court of Appeals of Washington, Division 1.

FILED: July 16, 2018

Thomas Jeffrey Keane, Keane Law Offices, 100 NE Northlake Way Ste. 200, Seattle, WA, 98105-6871, for Appellant.

Marne J. Horstman, Pratt Day & Stratton PLLC, 2102 N Pearl St. Ste. 106, Tacoma, WA, 98406-2550, Alexander Yurivich Jouravlev, Attorney at Law, Anastasia R. Sandstrom, Attorney General's Office, 800 5th Ave. Ste. 2000, Seattle, WA, 98104-3188, for Respondents.

PUBLISHED OPINION

Dwyer, J.

¶ 1 Collateral estoppel and res judicata are common law doctrines that were, for centuries, applied solely to common law claims. The twentieth century rise of the administrative state brought with it an explosion of executive branch quasi-judicial decision-making. Eventually, the urge to apply common law principles in these otherwise statutorily-created forums proved irresistible. But the apples to oranges application of common law doctrines to statutory claims litigated in executive branch forums was—by its very nature—never guaranteed universal success. Many times, such applications fit nicely and a sound and fair resolution was achieved. Other times, however, the apples to oranges application resulted in a distasteful fruit salad of injustice. This case falls into the latter category.

¶ 2 Michael Weaver, a long-time Everett firefighter, applied for compensation resulting from that which he alleged—and the law presumes—to be a work-related occupational disease. Weaver's petition is serious to him and his family; he suffers from brain cancer that has made it impossible for him to work and that will ultimately claim his life. The Board of Industrial Insurance Appeals ruled that either collateral estoppel or res judicata barred his claim. The superior court unfortunately adopted the same either/or analysis and also unfortunately ruled that Weaver's application was barred. But a careful review of these two distinct common law doctrines—conducted pursuant to the analytical framework mandated by our Supreme Court—reveals that neither doctrine, properly applied, bars Weaver's entreaty. Accordingly, we reverse.

I

¶ 3 Michael Weaver was employed between 1996 and 2014 by the City of Everett (the City) as a firefighter. In June 2011, Weaver noticed a mole on the skin of his left shoulder. The mole was removed and the resulting biopsy revealed that it contained a malignant melanoma.

¶ 4 Shortly thereafter, Weaver underwent surgery to remove the melanoma. After a period of recovery, Weaver returned to his employment as a firefighter. The treatment and surgery caused Weaver to miss nearly five weeks of work, losing the opportunity to earn just under $10,000 in wages.¹

¶ 5 While in recovery, in July 2011, Weaver filed a pro se application for temporary total disability benefits from the City, a self-insured entity for workers' compensation purposes. His application alleged that the malignant melanoma on his shoulder arose from his 15 years of working as a firefighter. He requested compensation for the nearly 5 weeks of wages that he had been unable to earn due to the medical treatment.

¶ 6 After initially granting Weaver's application, the Department of Labor and Industries (the Department) reconsidered its decision and denied his application. Thereafter, Weaver, through counsel, appealed the Department's denial order to the Board of Industrial Insurance Appeals (the Board). A hearing before an administrative law judge (ALJ) resulted. The City presented the published deposition testimony of two medical specialists, Dr. Robert Levenson, an oncologist, and Dr. John Hackett, a dermatologist.

¶ 7 Weaver's counsel, presumably due to monetary considerations, chose not to present the testimony of Dr. David Aboulafia, Weaver's treating oncologist. Nor did Weaver's attorney present testimony from a medical expert in oncology or dermatology.² Instead, Weaver's counsel presented the published deposition testimony of Dr. Kenneth Coleman, a doctor with a practice in family and emergency medicine, but with no expertise in melanoma generally or in melanoma arising from occupational exposures specifically.

¶ 8 The ALJ recommended that the Board affirm the Department's order denying Weaver's application.³ In February 2013, the Board adopted the ALJ's recommendation and issued a final order denying Weaver's application.

¶ 9 After the Board's ruling, Weaver's counsel withdrew. Weaver filed a pro se review petition in the superior court. Ten months later, with Weaver still unrepresented and no progress being made in the appeal, the parties entered into a stipulation and agreed order of dismissal. Weaver's petition for review was dismissed in late 2013.

¶ 10 In January 2014, Weaver began to have difficulty with mental processing and word finding. A magnetic resonance imaging test revealed a three-centimeter mass, a tumor, in the left frontal lobe of his brain.

¶ 11 Weaver immediately underwent surgery and the tumor was removed. The resulting biopsy diagnosed the tumor as a metastatic malignant melanoma, a form of cancer developing out of a primary cancer site. The logical conclusion was that the brain tumor had metastasized out of the malignant melanoma that Weaver noticed on his shoulder in 2011.

¶ 12 Weaver did not return to work as a firefighter after the surgery. He was estimated to have a 20 to 30 percent chance of survival over the next two years.

¶ 13 In July 2014, Weaver, now represented by counsel, submitted an application for workers' compensation from the City, seeking permanent total disability benefits. The application alleged that he suffered from a malignant melanoma located on his "upper back/scapula area, w/ cancer spreading to brain." He alleged that the condition arose from "sun exposure during outdoor firefighting and training from 1996 forward."

¶ 14 The Department denied Weaver's application on the basis that it had already rejected his application for compensation based on the malignant melanoma discovered on his shoulder and that the metastasized melanoma had arisen from the earlier melanoma.

¶ 15 Weaver sought an administrative appeal and, in the resulting proceeding, the ALJ recommended that the Board affirm the Department's rejection of Weaver's application for permanent total disability benefits. The executive branch official concluded that the common law doctrines of res judicata and collateral estoppel barred Weaver's application. The board, an executive branch agency, adopted the ALJ's proposed decision and order as its final order.⁴

¶ 16 Weaver filed a notice of appeal to the superior court. The superior court affirmed the Board's order and denied Weaver's petition, ruling that either collateral estoppel or res judicata barred his claim.

¶ 17 Weaver now appeals.

II

A

¶ 18 It is necessary for us to determine whether the superior court erred by affirming the Board's application of the doctrines of collateral estoppel and res judicata to bar Weaver from pursuing his claim for compensation under the Industrial Insurance Act, Title 51 RCW.

¶ 19 At the outset, we note that collateral estoppel and res judicata are equitable, court-created doctrines established at common law. See J.M. Weatherwax Lumber Co. v. Ray, 38 Wash. 545, 80 P. 775 (1905) ; see also Phillip A. Trautman, Claim and Issue Preclusion in Civil Litigation in Washington, 60 WASH. L. REV. 805, 806, 842 (1985). We further note that the Industrial Insurance Act, as set forth below, was enacted by our legislature in 1911 with the intent to abolish the common law cause of action then-available to workers and establish in its place a distinct statutory scheme aimed at providing workers "sure and certain relief." LAWS OF 1911, ch. 74, § 1, at 345.

¶ 20 Accordingly, in resolving the matter before us, we proceed with due caution so as to not unduly shoehorn common law concepts into a statutory scheme wherein our legislature did not specifically call for them to apply or may not otherwise have intended for their application.

B

¶ 21 Collateral estoppel and res judicata are affirmative defenses. Lemond v. Dep't of Licensing, 143 Wash. App. 797, 805, 180 P.3d 829 (2008) (collateral estoppel) (quoting State Farm Mut. Auto. Ins. Co. v. Avery, 114 Wash. App. 299, 304, 57 P.3d 300 (2002) ); Davignon v. Clemmey, 322 F.3d 1, 17 (1st Cir. 2003) (res judicata). The proponent of either doctrine has the burden of proof. Lemond, 143 Wash. App. at 805, 180 P.3d 829 (quoting State Farm Mut. Auto. Ins. Co., 114 Wash. App. at 304, 57 P.3d 300 ); Davignon, 322 F.3d at 17.

¶ 22 Whether collateral estoppel or res judicata apply to preclude litigation is a question of law that we review de novo. Lemond, 143 Wash. App. at 803, 180 P.3d 829 (collateral estoppel) (citing State v. Vasquez, 109 Wash. App. 310, 314, 34 P.3d 1255 (2001), aff'd, 148 Wash.2d 303, 59 P.3d 648 (2002) ); Lynn v. Dep't of Labor & Indus., 130 Wash. App. 829, 837, 125 P.3d 202 (2005) (res judicata) (citing Kuhlman v. Thomas, 78 Wash. App. 115, 119-20, 897 P.2d 365 (1995) ). In reviewing a superior court ruling in a workers' compensation matter, we apply a standard of review akin to our review of any other superior court trial judgment. Rogers v. Dep't of Labor & Indus., 151 Wash. App. 174, 180-81, 210 P.3d 355 (2009).

¶ 23 On appeal, both the Department and the City urge us to affirm the decision of the superior court on the basis that they established that collateral estoppel and res judicata apply to preclude litigation on Weaver's application.⁵ We address each doctrine in turn.

III

¶ 24 As an initial matter, the Department and the City contend that they established that collateral estoppel bars Weaver's application for permanent total disability benefits. We disagree.

A

¶ 25 The principles underlying the common law doctrine of collateral estoppel are well set forth in our opinion in Lemond.

Collateral estoppel " 'prevents relitigation of

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