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Aguirre v. The Industrial Commission of Arizona

Court of Appeals of Arizona, First Division

December 4, 2018


          Special Action - Industrial Commission ICA Claim No. 20152-040228 Carrier Claim No. 15A00579 Honorable Robert F. Retzer, Administrative Law Judge

          Taylor & 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 and Carrier

          Toby 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 [1] joined.


          BROWN, JUDGE:

         ¶1 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.


         ¶2 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").[2] Aguirre timely requested an ICA hearing, and the ALJ held hearings where Aguirre and two physicians testified.

         ¶3 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.

         ¶4 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.

         ¶5 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.

         ¶6 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.

         ¶7 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.

         ¶8 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 ...

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