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Aguirre v. The Industrial Commission of Arizona

Supreme Court of Arizona

August 15, 2019

Gilbert Aguirre, Jr., Petitioner,
v.
The Industrial Commission of Arizona, Respondent, City of Goodyear, Respondent Employer, CopperPoint American Insurance Company, Respondent Carrier.

          Special Action from the Industrial Commission of Arizona The Honorable Robert F. Retzer, Jr., Administrative Law Judge No. 20152-040228 AWARD SET ASIDE

         Opinion of the Court of Appeals, Division One 245 Ariz. 587 (App. 2018)

          Thomas C. Whitley (argued), Nicholas C. Whitley, Taylor & Associates, P.L.L.C., Phoenix, Attorneys for Gilbert Aguirre, Jr.

          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

          Toby 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.

          OPINION

          GOULD JUSTICE

         ¶1 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 Arizona ("ICA").

         I.

         ¶2 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.

         ¶3 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.[1] 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 condition).

         ¶4 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."

         ¶5 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."

         ¶6 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 ยง 23-901.01 ...


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