Special Action - Industrial Commission ICA Claim No.
20152-040228 Carrier Claim No. 15A00579 Honorable Robert F.
Retzer, Administrative Law Judge
& Associates, PLLC, Phoenix By Thomas C. Whitley,
Nicholas C. Whitley Counsel for Petitioner
Industrial Commission of Arizona, Phoenix By Gaetano J.
Testini Counsel for Respondent, ICA
CopperPoint American Insurance Company, Phoenix By Mark A.
Kendall, Sharon M. Hensley Counsel for Respondents Employer
Zimbalist, Phoenix Counsel for Professional Firefighters of
Arizona, Amicus Curiae
Presiding Judge Michael J. Brown delivered the opinion of the
Court, in which Judge Jennifer B. Campbell and Judge Patricia
A. Orozco  joined.
Gilbert Aguirre Jr. seeks review of an Industrial Commission
of Arizona ("ICA") award concluding he failed to
prove he sustained a work-related injury. He argues the
administrative law judge ("ALJ") failed to comply
with Post v. Industrial Commission, 160 Ariz. 4
(1989), which requires an ALJ to make findings that are
specific enough to enable proper judicial review of the
award. Because we cannot properly review the award on this
record, we set aside the award.
Aguirre, a firefighter for the City of Goodyear
("Goodyear"), received a blood test for his annual
employment physical in May 2015. His test results were
abnormal and soon thereafter he was diagnosed with chronic
myeloid leukemia ("CML"). Aguirre filed a
workers' compensation claim, which was denied by the
respondent carrier, CopperPoint American Insurance Company
("CopperPoint"). Aguirre timely requested an ICA
hearing, and the ALJ held hearings where Aguirre and two
Aguirre testified that in August 2000 he started working as a
firefighter in Sierra Vista, and as part of his job duties he
responded to both structural and wildland fires. In August
2007, Goodyear hired Aguirre as a firefighter.
Following his CML diagnosis, Aguirre obtained his Goodyear
firefighting records to help him recall the types of fires he
responded to and his likely chemical exposures. Of the fires
identified, Aguirre was most concerned about a large fire in
a cabinet factory that contained "paints, thinners,
lacquers, [and] everything that they used to make
cabinets," an airport hangar with burning jet fuel, a
potato chip factory, a house with chlorine stored in the
attic, and a number of meth labs. For some fires, Aguirre
wore a self-contained breathing apparatus ("SCBA"),
but for others it was not standard practice, and afterwards -
when he would not wear a SCBA-he would have soot on his hands
and face, and up his nose. When the firefighters returned to
the station after a fire, they would use a garden hose and a
brush to "try to get as much off of us that we
could." Then they cleaned up the equipment and showered.
Marc Wilkenfeld, M.D., board certified in occupational
medicine, authored a report based on Aguirre's
occupational history as a firefighter, and testified at the
hearing. When attempting to relate a disease to an exposure,
the doctor explained that several elements were important:
(1) the correct disease diagnosis, (2) workplace exposures
and latency periods-the time between "exposures and the
development of the disease," and (3) biologic
responsibility, i.e., what the medical literature says about
exposures in terms of carcinogenicity. The doctor addressed
these points in his report and testimony.
As background for his report, Wilkenfeld interviewed Aguirre
and reviewed his work-related exposures to carcinogenic
material and medical treatment records. Wilkenfeld stated
that Aguirre responded to four or five fires per month and
had annual physical examinations clearing him for work as a
firefighter. As a firefighter, Aguirre "had repeated
exposure to the carcinogens present at the fires, often
without proper protective equipment." Wilkenfeld
concluded that based on his review of medical literature,
exposure records, and Aguirre's medical history, Aguirre
developed CML as a result of such exposures.
Wilkenfeld testified about Aguirre's exposure to
chemicals and toxins that could lead to a diagnosis of CML,
including benzene, asbestos, heavy metals, dioxins, and
volatile organic compounds, to which he was exposed only
during his work as a firefighter. Wilkenfeld explained that
the fires Aguirre identified as being of particular concern
were dangerous in terms of exposure to carcinogens because
they involved oils and solvents. He also noted that even if
Aguirre used protective gear, he still would have been
exposed to toxins while cleaning his equipment at the fire
station after firefighting in toxic environments.
Wilkenfeld has experience working with the World Trade Center
program that has treated firefighters, responders, and
survivors of the September 11, 2001 attacks
("9/11") since 2001. He stated that CML is on the
list of cancers compiled by the federal government that are
believed to have resulted from 9/11 exposures. He further
testified that for firefighters present at Ground Zero who
developed CML, the federal government has accepted latency
periods as short as two years. Wilkenfeld relied on
peer-reviewed studies that have shown increased rates of
leukemia in firefighters. For these reasons, Wilkenfeld
opined that "to a ...