Wednesday, April 23, 2014 To view the full text of these opinions, please visit: http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.recent or Lexis subscribers may use the links below to access the cases on either lexis.com or Lexis Advance.
Division Two of the Court of Appeals filed 2 new published opinions on Wednesday, April 23, 2014:
1. Gorre v. City of Tacoma No. 43621-3 (April 23, 2014) 2014 Wash. App. LEXIS 972 (lexis.com)
2014 Wash. App. LEXIS 972 (Lexis Advance)
Areas: EMPLOYMENT LAW; GOVERNMENT RELATIONS AND ADMINISTRATIVE LAW
Brief: The Court of Appeals reverses the superior court's findings of fact and conclusions of law that (1) the firefighter did not have an occupational disease under RCW 51.08.140 based on its improper finding that he failed to prove a specific injury during the course of his employment, (2) the firefighter did not contract any respiratory conditions that arose naturally and proximately from distinctive conditions of his employment with the City, and (3) the Board of Industrial Insurance Appeals' decision and order are correct. The Court of Appeals also reverses the underlying corresponding Board findings. Holding that the superior court did not abuse its discretion in failing to strike the firefighter's evidence, the court affirms the superior court's finding that firefighter was not a smoker. Further holding that both the Board and the superior court erred in failing to apply RCW 51.32.185's evidentiary presumption of occupational disease to the firefighters's claim, (1) the court reverses both the Board's denial of his claim and the superior court's affirmance of the Board's denial; and (2) the court remands to the Board with instructions to follow RCW 51.32.185, to accord the firefighter the benefit of this presumption, and to shift to the City the burden of rebutting the presumption of occupational disease by a preponderance of the evidence.
2. Michelbrink v. Wash. State Patrol No. 44035-1 (April 23, 2014) 2014 Wash. App. LEXIS 973 (lexis.com)
2014 Wash. App. LEXIS 973 (Lexis Advance)
Areas: EMPLOYMENT LAW; GOVERNMENT RELATIONS AND ADMINISTRATIVE LAW; PERSONAL INJURY AND INSURANCE LAW
Brief: The exclusive remedy provision of the Industrial Insurance Act, RCW 51.04.010, did not bar the trooper's tort action; the trooper raised an issue of material fact about whether, under RCW 51.24.020, the Washington State Patrol (WSP) knew and willfully disregarded that his injury from its Taser training was certain to occur because WSP was aware that certain initial injury would result when a Taser barb contacted a human body. In addition, if the trooper were to prove at trial that WSP intentionally caused a certain injury, he would meet the Act's requirements to maintain his action, including seeking recovery for additional unforeseeable or uncertain damages flowing from the injury, such as his fractured back.
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