Aguirre v. goodyear/copperpoint

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

GILBERT AGUIRRE JR., Petitioner,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

CITY OF GOODYEAR, Respondent Employer,

COPPERPOINT AMERICAN INSURANCE COMPANY, Respondent
Carrier.

No. 1 CA-IC 17-0017
FILED 12-4-2018

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

AWARD SET ASIDE

COUNSEL

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

OPINION

Presiding Judge Michael J. Brown delivered the opinion of the Court, in
which Judge Jennifer B. Campbell and Judge Patricia A. Orozco1 joined.

B R O W N, 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.

BACKGROUND

¶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.

1 The Honorable Patricia A. Orozco, retired Judge of the Arizona
Court of Appeals, Division One, has been authorized to sit in this matter
pursuant to Article VI, Section 3, of the Arizona Constitution.

2 Unless otherwise noted, we refer to Goodyear and CopperPoint
collectively as “CopperPoint.”

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¶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

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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
reasonable degree of medical certainty,” Aguirre developed CML “as a
result of exposure that he experienced during his work as a firefighter.”

¶9 Jason Salganick, M.D., board certified in medical oncology,
produced a report and testified on behalf of CopperPoint. He reviewed
Aguirre’s testimony, medical treatment records, and the Goodyear call
records, as well as Wilkenfeld’s report and testimony. Salganick also
performed a literature search on PubMed and reviewed monographs by the
International Association for Research on Cancer (“IARC”) and what he
termed documents “involving 9/11 research and government directive
protocols for compensation of firefighters.”

¶10 In his report, Salganick noted that the toxins to which
firefighters are generally exposed include “benzenes, polycyclic aromatic
hydrocarbons, aromatic amines, [and] chlorinated dioxins.” He
acknowledged that benzene is a potential carcinogen and is included in
IARC’s list of chemicals to which firefighters are presumed to be exposed.
Salganick testified that firefighters are generally exposed to potential
carcinogens, including benzene, but he could not determine if Aguirre was
exposed to a known carcinogen as defined by the IARC because the records
did not indicate what specific toxins were present at particular fires, what
protective gear Aguirre wore, or the length of time he spent at each fire.

¶11 Salganick also explained he was not aware of a reasonable
relationship between any carcinogen to which Aguirre may have been
exposed and CML, yet he acknowledged that Aguirre “would have been
exposed” to various “well-documented substances,” including benzene.
Salganick stated he was unable to find that Aguirre’s cancer was “causally

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related to his work as a firefighter.” Salganick also explained why his
opinion differed from Wilkenfeld’s opinion when they had both relied on
the same studies. Salganick stated that based on his review of the medical
literature, it was necessary to show a standard mortality ratio (“SMR”) of
greater than 200, or a two-fold increase in the risk of developing cancer,
before a study could be considered statistically significant and the cancer
reasonably related for purposes of establishing a compensable claim.
According to Salganick, there is a paucity of medical literature meeting that
standard. As a result, the literature only supported a possible connection
between Aguirre’s work as a firefighter and CML. Regarding the federal
government’s 9/11 Ground Zero list of potentially-related cancers, the only
two on the list that have been recognized as being causally related are
thyroid and prostate cancer.

¶12 Following the hearings, the parties filed simultaneous post-
hearing memoranda. In his ruling, after briefly summarizing the testimony,
the ALJ stated he was more persuaded by CopperPoint’s memorandum
and concluded that Aguirre “failed to carry his burden of proving by a
reasonable preponderance of the evidence that he sustained a work related
injury on May 14, 2015.” Following Aguirre’s request for review, the ALJ
summarily affirmed the award and Aguirre sought review in this court.

DISCUSSION

¶13 To establish a compensable injury under the Arizona
Workers’ Compensation Act, a claimant must prove an accidental injury
that arose out of, and in the course of, employment. See Ariz. Rev. Stat.
(“A.R.S.”) section 23-1021; Malinski v. Indus. Comm’n, 103 Ariz. 213, 216
(1968) (stating that claimant has the burden to affirmatively establish
entitlement to compensation). An injury includes an occupational disease,
A.R.S. § 23-901(13)(c), which is compensable only if the claimant meets six
requirements, including proof of a “direct causal connection between the
conditions under which the work is performed and the occupational
disease,” A.R.S. § 23-901.01(A). The compensability of certain occupational
diseases contracted by firefighters or peace officers, however, involves a
lower burden of proof, as reflected in A.R.S. § 23-901.01(B):

[A]ny disease, infirmity, or impairment of a firefighter’s or
peace officer’s health that is caused by . . . leukemia . . . and
that results in disability or death is presumed to be an
occupational disease as defined in § 23-901, paragraph 13,
subdivision (c) and is deemed to arise out of employment.
The presumption is granted if all of the following apply:

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1. The firefighter or peace officer passed a physical
examination before employment and the examination did not
indicate evidence of cancer.

2. The firefighter or peace officer was assigned to hazardous
duty for at least five years.

3. The firefighter or peace officer was exposed to a known
carcinogen as defined by the international agency for research
on cancer and informed the department of this exposure, and
the carcinogen is reasonably related to the cancer.

(Emphasis added.)3 On appeal, CopperPoint does not dispute that
subsections B(1) and B(2) have been satisfied; instead, it focuses primarily
on subsection B(3)’s third prong—the requirement that the carcinogen to
which Aguirre was allegedly exposed is “reasonably related” to his CML.
To meet that condition, Aguirre had to “demonstrate that at least one
carcinogen he was exposed to during hazardous duty is reasonably related”
to his CML. Hahn v. Indus. Comm’n, 227 Ariz. 72, 75, ¶ 12 (App. 2011)
(emphasis added).

¶14 Aguirre argues the ALJ’s award lacks legally sufficient
findings for this court to be able to review whether the award was
compensable, citing Post. In Post, our supreme court granted review to
“examine the need for and degree of specificity in findings and awards
required in workers’ compensation cases.” 160 Ariz. at 5. The Post court
first noted the lack of specificity in the award at issue there—the ALJ “made
no factual findings of consequence, resolved no conflicts in the evidence,
and set forth no conclusions applying law to fact. Instead, . . . he simply set
forth the ultimate legal conclusion.” Id. Concluding that “judicial review”
was not possible “on this record,” the court re-affirmed the longstanding
principle that an award must specify the basis for the ultimate disposition

3 The legislature’s 2017 amendment to § 23-901.01(B) included a
provision addressing the standard of proof required to rebut the
presumption. See A.R.S. § 23-901.01(F) (“The presumptions provided in
subsection B of this section may be rebutted by a preponderance of the
evidence that there is a specific cause of the cancer other than an
occupational exposure to a carcinogen as defined by the international
agency for research on cancer.”). Because we only address whether the
award includes sufficient findings, the 2017 amendment does not affect the
substance of our analysis.

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and the evidence supporting that basis. Id. at 7–8; see also Douglas Auto &
Equip. v. Indus. Comm’n, 202 Ariz. 345, 347, ¶ 9 (2002) (stating that an ALJ
“must make factual findings that are sufficiently comprehensive and
explicit for a reviewing court to glean the basis for the [ALJ’s] conclusions”);
Wammack v. Indus. Comm’n, 83 Ariz. 321, 325 (1958) (stating that “the
findings of administrative agencies must be explicit to enable the reviewing
court to review the decision intelligently and to ascertain whether the facts
as found afford a reasonable basis for the decision or be sufficiently definite
and certain to permit of judicial interpretation”).

A. Waiver

¶15 CopperPoint contends that Aguirre is precluded from seeking
appellate review of the sufficiency of the ALJ’s findings because he failed
to raise the issue in his request for review of the award by the ALJ. We are
not persuaded by this contention for several reasons. First, nothing in Post
suggests a party is required to challenge the sufficiency of findings in a
request for review as a condition of asserting that argument on appeal. See
160 Ariz. at 7 (requiring ALJs to include sufficient findings to ensure that
judicial review is possible).

¶16 Second, although a party seeking to challenge an ICA award
in the appellate courts must first file a request for review, A.R.S. § 23-943(A),
that same provision makes it clear that a party has no obligation to include
any specific arguments in the request to preserve them for appellate review,
id. (stating that a request for review “need only state that the party requests a
review of the award” and that the request “may be accompanied by a
memorandum of points and authorities”) (emphasis added). See generally
Backus v. State, 220 Ariz. 101, 104, ¶ 11 (2009) (“When statutory language
admits of only one interpretation, we go no further.”).

¶17 Third, CopperPoint’s reliance on Stephens v. Industrial
Commission, 114 Ariz. 92 (App. 1977), is misplaced. Stephens did not address
the question presented here—whether the failure to raise a challenge to the
sufficiency of findings must be raised in a request for review. Instead, the
issue in Stephens centered on the claimant’s argument that the hearing
officer erred by addressing whether a permanent disability had been
proven. Id. at 94, 95. Explaining that the claimant had previously
challenged the carrier’s notice terminating benefits with no permanent
disability, we rejected his argument on three grounds: (1) the claimant
clearly placed the matter at issue in his request for hearing; (2) given the
lack of evidence presented regarding a permanent disability, the claimant
necessarily failed to meet his burden; and (3) he failed to raise the issue at

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any point in the ICA proceedings. Id. at 96. Addressing the third ground,
we explained that consistent with principles of exhaustion of
administrative remedies, our review would “be limited to the same matters
which the hearing officer could consider in its review of its own decision.”
Id. at 95.

¶18 Here, Aguirre had no obligation to challenge the sufficiency
of the findings in the ICA proceedings to preserve it for appeal because the
only action he was required to take under § 23-943 was to file a request for
review; he was not required to raise any specific argument. Thus, unlike
the issue in Stephens, the exhaustion of administrative remedies doctrine
does not apply here because § 23-943 is permissive as to whether a party
may challenge the sufficiency of the ALJ’s findings in a request for review.
See Sw. Paint & Varnish Co. v. Ariz. Dep’t of Envtl. Quality, 194 Ariz. 22, 24,
¶ 14 (1999) (recognizing that “the exhaustion of administrative remedies
doctrine does not apply in many circumstances, including those where the
remedy is permissive”).

¶19 Because Stephens does not apply to the issue before us, neither
does the sole reported decision that relied on Stephens in summarily
concluding that failure to challenge the sufficiency of the ALJ’s findings in
a request for review waives that argument on appeal. See Spielman v. Indus.
Comm’n, 163 Ariz. 493, 496 (App. 1989). Spielman was decided 11 months
after Post, but did not address it. And the only reported decision citing
Spielman is Teller v. Industrial Commission, 179 Ariz. 367, 371 (App. 1994),
which relied solely on Spielman to conclude that failure to raise lack of
findings in a request for review precludes that party from raising the issue
on appeal. Teller has never been cited in a reported decision for the
principle that a party in an ICA proceeding is precluded from challenging
the sufficiency of the ALJ’s findings if it failed to raise that argument in a
request for review. Because the genesis of these two cases was Stephens, a
case that did not address the question presented here, we decline to follow
Spielman and Teller insofar as they would preclude us from deciding
whether the award in this instance includes sufficient findings.

¶20 Accordingly, we hold that Post’s requirement that an ALJ
make findings sufficient to permit meaningful judicial review, 160 Ariz. at
8, applies even if a party fails to raise that specific issue in a request for
review. We are not suggesting a party should ignore an obvious issue of
insufficient findings; the better practice would be to bring the matter to the
ALJ’s attention. But failure to do so does not preclude judicial review.

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B. Sufficiency of Findings

¶21 Alternatively, CopperPoint argues the ALJ’s award “contains
ample findings and conclusions” to permit meaningful appellate review.
Relying on Pearce Development v. Industrial Commission, 147 Ariz. 582 (1985),
CopperPoint notes that a court will uphold an award where the ALJ “at
least draws conclusions on the legal issues” and thereby allows the court to
“determine from the record” whether the evidence supports the ALJ’s
conclusions. In Post, our supreme court distinguished Pearce, because the
ALJ in Pearce “had at least drawn conclusions on the legal issues so that we
could determine from the record whether the evidence supported his
conclusions.” 160 Ariz. at 8. The Post court acknowledged that normally,
an appellate court reviews the record in search of support for the award.
Id. However, in Post, the court was “unable to perform the type of judicial
review that workers’ compensation cases require.” Id.

¶22 Here, the lack of specificity in this award mandates the same
conclusion. The ALJ summarized the facts and the testimony of both
doctors and came to the bare conclusion that Aguirre “failed to carry his
burden of proving by a reasonable preponderance of the evidence that he
sustained a work related injury.” The ALJ did not resolve conflicting
evidence, make ultimate factual findings, provide legal analysis of
§ 23-901.01(B)(3), or discuss Hahn, which is the only reported decision to
date interpreting that statute. See Post, 160 Ariz. at 8 (“If we were to approve
the award here, however, with no stated resolution of conflicting testimony,
no findings of ultimate fact, and no conclusions on the legal issues, there
would be no purpose in requiring [ALJs] to make findings.”).

¶23 Finally, with no citation to authority, CopperPoint also argues
the ALJ’s reliance on its post-hearing memorandum makes the findings
sufficient. Our research reveals one reported decision where this court
found, under unique circumstances, that an ALJ’s reliance on a party’s legal
memorandum was sufficient to comply with Post. See Hester v. Indus.
Comm’n, 178 Ariz. 587, 589–90 (App. 1993) (noting the ALJ’s findings
“incorporated” one party’s memorandum and the court “could determine
whether the factual assumptions and legal arguments in this memorandum
support the no loss award”). Post recognized that an ALJ’s findings do not
have to be in “any particular form” but the supreme court reiterated that
“we must know how the [ALJ] reached his or her conclusion.” 160 Ariz. at
8–9. Stated differently, regardless of the format in which the findings are
presented, if the award requires us to speculate about how the ALJ resolved
material disputes in the case, then the findings are insufficient. See id. at 7–
9 (“Although lack of findings on a particular issue does not invalidate an

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award per se,” if we must “speculate” about the basis for the award or
“assume a factfinder role,” then the award must be set aside.).

¶24 Here, the ALJ’s decision finding that CopperPoint’s
memorandum was more persuasive does not satisfy Post. We need not
address every point in the eight-page memorandum to reach this
determination, as a few examples will suffice. CopperPoint asserted that
Aguirre failed to meet the statutory presumption, but even if he did, the
ALJ “should conclude that Dr. Salganick’s opinions are more probably
correct that there is insufficient scientific evidence to support a causal
connection between [Aguirre’s] CML and his work as a firefighter.” But
CopperPoint cited no authority addressing under what circumstances an
employer may rebut the presumption under the statute, as worded in 2015.
See Hahn, 277 Ariz. at 77, ¶ 18 n.3 (declining to address the “nature and
effect” of the presumption “when it does apply”).

¶25 CopperPoint argued Aguirre failed to establish, under the
first prong of § 23-901.01(B)(3), he was exposed to a known carcinogen as
defined by the IARC, relying on Salganick’s testimony. Wilkenfeld stated
in his report that Aguirre “had repeated exposures to the carcinogens
present at the fires,” including “Polycyclic Aromatic Hydrocarbons (PAHs)
and dioxins.” Wilkenfeld testified that as a firefighter Aguirre would have
been exposed to “things like benzene.” Salganick testified that nothing in
the records showed that Aguirre was exposed to a known carcinogen, but
on cross-examination he agreed Aguirre “would have been exposed” to
substances such as “benzenes, [etc.]” because “they are generally accepted
as the kinds of chemicals to which firefighters are exposed.” And Salganick
did not dispute that benzene is listed by the IARC. CopperPoint's
memorandum, however, did not include any discussion of benzene or the
other potential carcinogens the doctors discussed in their reports and
testimony.

¶26 CopperPoint’s memorandum also seemed to suggest that
Aguirre failed to report his exposure to his employer as required by
the second prong of § 23-901.01(B)(3). The statute does not address when,
or in what format, such a report must be given. See § 23-901.01(B)(3).
Regardless, other than the award’s bare reference to the memorandum,
nothing else in the record indicates the ALJ relied on either of these prongs
to conclude that Aguirre failed to meet his burden.

¶27 CopperPoint argued further that Aguirre “presented
absolutely no evidence that he was exposed at a particular time to a
particular carcinogen.” Aguirre challenged this point in his request for

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review, asserting that CopperPoint was seeking to impose “an impossible
burden” by contending that he was required to connect exposure to a
specific potential carcinogen to a specific firefighting event. Without
citation to authority, CopperPoint faulted Wilkenfeld for failing to identify
details such as the year of the exposure, the length of time Aguirre was on
the scene, whether Aguirre went into the fire or manned a hose or what
type of protective equipment he used during the alleged exposure. Nothing
in the statute or Hahn requires this level of detail. As we explained in Hahn,
application of the statute means Aguirre “need only show a general causal
link between a carcinogen to which he was exposed and one of the
enumerated cancers to qualify for the presumption, not that the exposure
caused his particular cancer.” 277 Ariz. at 76, ¶ 16 (second emphasis added).

¶28 Finally, as to the credibility of witnesses, the memorandum
fails to satisfy Post’s directive that an ALJ “must resolve all conflicts in the
evidence, especially when the conflicts involve expert medical testimony.”
160 Ariz. at 8. Although CopperPoint analyzed portions of the testimony,
the memorandum lacks any meaningful attempt to resolve the various
conflicts between the opinions offered by Wilkenfeld and Salganick. For
example, the experts offered conflicting testimony as to what the SMR, or
increase of risk in developing cancer, must be to show a reasonable relation
between exposure of a carcinogen and the cancer. According to Salganick,
anything less than a two-fold increase in the risk means that a connection
between a carcinogen and the cancer is only possible, not probable, but
Wilkenfeld disputed that a two-fold increase is required to establish a
probable association. They also offered differing opinions as to what types
of carcinogens Aguirre was exposed to, if any, and disagreed as to whether
Salganick was qualified to offer an expert opinion on causation.

¶29 Nothing in the ALJ’s award or the memorandum indicate that
the ALJ resolved these issues. It is not our role to speculate as to which
arguments made by CopperPoint the ALJ found more persuasive to
ultimately conclude that Aguirre failed to meet his burden. Thus,
referencing the memorandum does not remedy the ALJ’s inadequate
findings. In our view, an ALJ will generally be better served to issue his or
her own findings instead of relying on a party’s memorandum. Doing so
will help avoid ambiguities and conflicts that may arise on appeal. Thus,
at a minimum, an ALJ choosing to rely on a memorandum should carefully
delineate which portions of the memorandum he or she is relying on and
how those portions support the award.

¶30 On this record, we must set aside the award because the lack
of findings leaves us unable to meaningfully review the ALJ’s decision. See

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id. at 7 (“[W]e have no way of evaluating the basis of the judge’s award and
consequently cannot determine the factual support for, or the legal
propriety of, his conclusion.”). Aguirre needed to show a general causal
link between his exposure to at least one particular carcinogen and his
CML, but we are unable to determine whether the ALJ erred by ruling he
failed to meet that burden—we cannot tell what evidence the ALJ relied on
and why, or what elements of § 23-901.01(B), if any, were not satisfied.

CONCLUSION

¶31 Given the absence of legally-sufficient findings, we set aside
the ICA award.

AMY M. WOOD • Clerk of the Court
FILED: AA

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