Special Action from the Industrial Commission of Arizona The
Honorable Robert F. Retzer, Jr., Administrative Law Judge No.
20152-040228 AWARD SET ASIDE
of the Court of Appeals, Division One 245 Ariz. 587 (App.
C. Whitley (argued), Nicholas C. Whitley, Taylor &
Associates, P.L.L.C., Phoenix, Attorneys for Gilbert Aguirre,
Gaetano J. Testini, Los Abogados Hispanic Bar Association,
Inc., Phoenix, Attorney for Industrial Commission of Arizona
Sharon M. Hensley, Mark A. Kendall (argued), CopperPoint
American Insurance Company, Phoenix, Attorneys for City of
Goodyear and CopperPoint American Insurance Company
Zimbalist, Phoenix, Attorney for Amicus Curiae Professional
Firefighters of Arizona
JUSTICE GOULD authored the opinion of the Court, in which
VICE CHIEF JUSTICE TIMMER and JUSTICES BOLICK, LOPEZ, and
BALES (Retired) joined.
In Post v. Industrial Commission of Arizona, we held
that when an administrative law judge ("ALJ") fails
to make findings on all material issues necessary to resolve
the case, the award is legally deficient and must be set
aside. 160 Ariz. 4, 7-9 (1989). Today, we further hold that a
claimant does not waive appellate review of the legal
sufficiency of findings before the Industrial Commission of
Gilbert Aguirre has worked as a firefighter for the City of
Goodyear ("City") since August 2007. As a
firefighter, he has responded to several fires, including a
large fire in a cabinet factory that contained "paints,
thinners, [and] lacquers," a fire in an airport hangar
with burning jet fuel, a house fire with chlorine stored in
the attic, and several burning methamphetamine labs. In May
2015, Aguirre was diagnosed with chronic myeloid leukemia
("CML"). He filed a workers' compensation claim
alleging that his CML was caused by the toxic chemicals he
had been exposed to while fighting fires for the City.
After Aguirre's claim was denied by the City's
workers' compensation carrier, CopperPoint American
Insurance Company ("CopperPoint"), he requested a
hearing before the ICA. At the hearing, Aguirre asserted a
claim for benefits pursuant to A.R.S. §
23-901.01. Under that statute, a firefighter
diagnosed with Aguirre's type of cancer is entitled to a
presumption that he is suffering from a compensable
occupational disease upon showing that he: (1) "passed a
physical examination before employment and the examination
did not indicate evidence of cancer," (2) "was
assigned to hazardous duty for at least five years," and
(3) "was exposed to a known carcinogen . . . and the
carcinogen is reasonably related to the cancer." §
23-901.01(B)(1), (C)(1)-(3); see also Hahn v. Indus.
Comm'n, 227 Ariz. 72, 75 ¶ 12 (App. 2011)
(holding that in making a claim for occupational diseases
under § 23-901.01, a claimant must "demonstrate
that at least one carcinogen he was exposed to during
hazardous duty is reasonably related" to his medical
The testimony at the hearing focused primarily on whether
Aguirre was exposed to any carcinogens that were
"reasonably related" to his CML. See
§ 23-901.01(C)(3). Marc Wilkenfeld, M.D.,
board-certified in occupational medicine, authored a report
and testified on behalf of Aguirre. Wilkenfeld testified that
Aguirre had repeated exposure to the carcinogens present at
the fires, often without proper protective equipment.
Wilkenfeld further concluded, based on his review of
peer-reviewed studies, medical literature, exposure records,
and Aguirre's medical history, that Aguirre developed CML
"as a result of the exposure to carcinogens he
experienced during his work as a firefighter."
Jason Salganick, M.D., board-certified in medical oncology,
prepared a report and testified on behalf of CopperPoint.
Salganick testified that although firefighters are generally
exposed to potential carcinogens, he could not determine if
Aguirre was exposed to a known carcinogen because his records
did not identify which specific toxins were present at
particular fires, what protective gear Aguirre wore, or how
long he spent at each fire. Salganick further stated that the
medical literature only supported a possible connection
between Aguirre's work as a firefighter and CML.
Salganick testified that, in his opinion, he could not
conclude whether Aguirre's CML was "causally related
to his work as a firefighter."
After the hearing, the ALJ denied Aguirre's claim for
benefits. In his decision, the ALJ briefly summarized the
testimony and noted that "[t]his is a claim under the
Occupational Disease Statute § 23-901.01 ...