Forbach v. flagstaff/copperpoint

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

WESLEY FORBACH, Petitioner Employee,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

CITY OF FLAGSTAFF, Respondent Employer,

COPPERPOINT AMERICAN INSURANCE COMPANY,
Respondent Carrier.

No. 1 CA-IC 19-0036
FILED 4-21-2020

Special Action - Industrial Commission
ICA Claim No. 20181-510295
Insurance Claim No. None
The Honorable Michelle Bodi, Administrative Law Judge

AFFIRMED

COUNSEL

Taylor & Associates, PLLC, Phoenix
By Thomas C. Whitley, Nicholas C. Whitley
Counsel for Petitioner Employee

Industrial Commission of Arizona, Phoenix
By Gaetano J. Testini
Counsel for Respondent
CopperPoint Insurance Company, Phoenix
By Mark A. Kendall
Counsel for Respondent Employer and Respondent Carrier

MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge David B. Gass joined.

C R U Z, Judge:

¶1 Petitioner Wesley Forbach appeals an award of the Industrial
Commission of Arizona (“ICA”) denying his claim for coverage of an
occupational disease. The Administrative Law Judge (“ALJ”) determined
that Forbach was not entitled to a statutory presumption in his favor and,
therefore, had not established a causal connection between his disease and
his employment. We affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 Forbach is a firefighter for the City of Flagstaff. He is both a
paramedic and an engineer for the fire department. The parties do not
dispute that due to his duties with the fire department, Forbach has been
exposed on multiple occasions to known carcinogens while on hazardous
duty for at least five years.

¶3 When he was a teenager, Forbach was diagnosed with right
side testicular cancer, and it was treated by surgical removal. In April 2018,
Forbach was diagnosed and underwent surgery for left side testicular
cancer. He returned to his normal duties at work after his recovery from
the surgery. Forbach filed a worker’s compensation claim with
CopperPoint American Insurance Company (“CopperPoint”), the City of
Flagstaff’s carrier, contending that his left side testicular cancer was a
covered occupational disease. CopperPoint denied the claim, and Forbach
requested a hearing.

¶4 Forbach testified about his employment-related exposure to
diesel exhaust fumes and carcinogens in general. Still, he did not know the
specific substances that he was exposed to by burning or charred materials
or the fumes and smoke created by a fire. He was sure that he had been
exposed regularly to known carcinogenic material. Forbach submitted

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documentation from two doctors who concluded that his employment as a
firefighter could have caused the cancer he suffered. A brief written note
signed by Dr. Nathan Benson, the surgeon who treated Forbach’s cancer,
stated his opinion that there was a “probable link” between Forbach’s
employment as a firefighter and his testicular cancer. No further
explanation for that opinion was provided. Dr. Mark Seby, Forbach’s
physician and a doctor who annually evaluates Flagstaff firefighters,
testified that he evaluated Forbach’s fitness to return to work after the
surgery and released him back to work in June 2018. He had performed
yearly physical exams of Forbach since 2009. Until April 2018, Forbach’s
medical evaluations had been negative for any subjective symptoms or
objective findings suggesting the presence of cancer. Dr. Seby testified that
there was a “strong possibility” that the testicular cancer discovered in 2018
was related to Forbach’s job as a firefighter. In particular, Dr. Seby testified
to “a strong possibility that [Forbach’s] testicular cancer is related to those
chemical toxins he’s been exposed to as a firefighter.” He confirmed that
diesel exhaust and benzene, which is a substance in diesel fuel and exhaust,
are known carcinogens. Dr. Seby also testified that Forbach had reported
to him annually that he was regularly exposed to toxins.1

¶5 CopperPoint called one witness at the hearing, oncologist Dr.
Jason Sagalnik, who testified that he performed an Independent Medical
Examination of Forbach in August 2018. He assumed that Forbach had
been exposed to toxins as a firefighter “based on the long list of inhalational,
possibly dermal exposures that can be anticipated from his employment.”
He agreed to assume exposure by Forbach to “smoke, diesel exhaust, fire
debris including plastics and rubber, gas, and chemicals.” Nevertheless, he
stated that there is no scientific evidence that “establishes a causal
relationship between the occupation of firefighting and testicular cancer.”
He admitted that some correlation had been shown, but stated that the
correlation is not “statistically significant.” Dr. Sagalnik testified that diesel
exhaust is a known carcinogen for some cancers, including lung cancer, but
not for testicular cancer. He also noted that men with a prior history of
testicular cancer have a higher risk for contralateral testicular cancer. Dr.

1 Dr. Seby stated simply that Forbach’s duties as a firefighter,
particularly exposure to known carcinogens, created a “strong possibility”
that his testicular cancer was “related” to his employment. No carcinogen
that is known to cause testicular cancer was identified. The most that can
be deduced from his opinion is that Dr. Seby believes there is a general
correlation between carcinogenic exposures typical of firefighting and
testicular cancer; however, the scientific basis for that belief was not
provided.

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Sagalnik concluded his testimony by stating that there is not enough data
showing a causal link between firefighter exposure to toxins and testicular
cancer to say with any degree of reasonable medical probability that
Forbach’s testicular cancer was related to his work as a firefighter.

¶6 The ALJ found Dr. Sagalnik’s testimony to be more credible.
Finding that Forbach had shown all the requirements save one for the
statutory presumption that his cancer was a covered occupational disease,
the ALJ denied the claim. Specifically, she found that Forbach had failed to
show a reasonable relationship between a known carcinogen he was
exposed to as a firefighter and his testicular cancer. Because of that failure,
he did not get the benefit of the presumption and thereby failed to prove
that his cancer was a covered occupational disease. Upon review requested
by Forbach, the ALJ affirmed her decision, noting that “there is no
statistically valid evidence demonstrating a causal connection between a
firefighter’s exposure to known carcinogens and the development of
testicular cancer.”

¶7 In this special action, Forbach argues that the ALJ
misinterpreted the presumption statute and that the evidence supports
applying the statutory presumption in his favor. We have jurisdiction to
hear this matter under Arizona Revised Statutes (“A.R.S.”) sections 12-
120.21(A)(2) and 23-951(A), and by Arizona Rule of Procedure for Special
Actions 10. We find Forbach’s arguments unpersuasive.

DISCUSSION

¶8 In reviewing a worker’s compensation award, we defer to the
ALJ’s factual findings but review questions of law de novo. Young v. Indus.
Comm’n, 204 Ariz. 267, 270, ¶ 14 (App. 2003), as corrected (Feb. 25, 2003).
The injured employee bears the burden of establishing each element of a
claim. Yates v. Indus. Comm’n, 116 Ariz. 125, 127 (App. 1977). When an
injury would not be apparent to a layperson, expert medical testimony is
required to establish “not only the causal connection between a claimant’s
medical condition and the industrial accident, but also the existence and
extent of any permanent impairment.” Gutierrez v. Indus. Comm’n, 226 Ariz.
1, 3, ¶ 5 (App. 2010), aff’d in part, 226 Ariz. 395 (2011). When a conflict in
medical expert testimony arises, the ALJ must resolve it, and we will not
disturb that resolution unless it is “wholly unreasonable.” Stainless
Specialty Mfg. Co. v. Indus. Comm’n, 144 Ariz. 12, 19 (1985). Viewing the
evidence in the light most favorable to sustaining an award, we will affirm
the ALJ’s decision unless there is no reasonable basis for it. Lovitch v. Indus.
Comm’n, 202 Ariz. 102, 105, ¶ 16 (App. 2002).

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¶9 Before 1973, the Arizona Legislature defined occupational
diseases separately from industrial injuries that arise by accident out of and
in the course of employment. Ford v. Indus. Comm’n, 145 Ariz. 509, 512-13
(1985). In that year, the statutes were amended to incorporate occupational
diseases within the definition of injury by accident arising out of
employment. Id. at 513. The requirements for showing proximate
causation in occupational disease cases, found in A.R.S. § 23-901.01(A),
have remained the same since 1973 and require a showing of six factors, all
relating to causation between the occupational disease and the
employment:

The occupational diseases as defined [elsewhere] shall be
deemed to arise out of the employment only if all of the
following six requirements exist:

1. There is a direct causal connection between the conditions
under which the work is performed and the occupational
disease.

2. The disease can be seen to have followed as a natural
incident of the work as a result of the exposure occasioned by
the nature of the employment.

3. The disease can be fairly traced to the employment as the
proximate cause.

4. The disease does not come from a hazard to which workers
would have been equally exposed outside of the employment.

5. The disease is incidental to the character of the business and
not independent of the relation of employer and employee.

6. The disease after its contraction appears to have had its
origin in a risk connected with the employment, and to have
flowed from that source as a natural consequence, although it
need not have been foreseen or expected.

A.R.S. § 23-901.01(A). Our supreme court has construed these factors as
tests for finding proximate cause and as a way of separating occupational
diseases from the same illnesses that might be caused by non-industrial
hazards to which everyone is exposed. Ford, 145 Ariz. at 518. Starting in
2001, with a significant amendment in 2017, the Legislature created a
statutory presumption of industrial causation for firefighters and police
officers who contract certain diseases under certain conditions. 2001 Ariz.

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Sess. Laws, ch. 192 (1st Reg. Sess.); see also 2017 Ariz. Sess. Laws, ch. 318 (1st
Reg. Sess.). This statutory presumption is the focus of the party’s arguments
on appeal.

¶10 Arizona Revised Statutes section 23-901.01(B) lists diseases
that, if contracted by firefighters or police officers, will be presumed to be
occupational diseases that arose out of employment if the four
requirements in subsection (C) of the statute are met:

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 [i] exposed to a known
carcinogen as defined by the international agency for research
on cancer and [ii] informed the department of this exposure,
and [iii] the carcinogen is reasonably related to the cancer.

4. For the presumption provided in subsection B, paragraph 2
of this section, the firefighter received a physical examination
that is reasonably aligned with the national fire protection
association standard on comprehensive occupational medical
program for fire departments (NFPA 1582).

A.R.S. § 23-901.01(C). Subsection (F) of the statute allows for a rebuttal of
the presumption if a preponderance of the evidence shows a specific, non-
industrial cause of the cancer.

¶11 In the case before us, the parties dispute only whether the
evidence supports one of the presumption requirements: the showing of the
reasonable relation between the carcinogen and the cancer required by
subsection (C)(3)[iii]. In 2011, we construed an earlier but substantially
similar form of A.R.S. § 23-901.01(B) and (C) in a case almost identical to
this one, focusing on the “reasonable relation” requirement. Hahn v. Indus.
Comm’n, 227 Ariz. 72, 73 (App. 2011). Hahn was a firefighter diagnosed
with colon cancer who asserted that his cancer was an occupational disease
under the statutory provisions. Id. The ALJ there found that Hahn failed
to establish that any carcinogens to which he had been exposed were
reasonably related to colon cancer. Id. at 73-74. We upheld that finding,
stating that the statute required Hahn to “demonstrate that at least one
carcinogen he was exposed to during hazardous duty is reasonably related

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to colon cancer.” Id. at 75. We also rejected Hahn’s argument that requiring
proof that a carcinogen he was exposed to was reasonably related to colon
cancer was contrary to legislative intent. Id. at 75-76. Indeed, we declined
to examine legislative history because we found the statute to be
unambiguous. Id. at 76-77. We held that to qualify for the presumption, a
claimant under this statute must show a reasonable relationship between a
particular carcinogen and the claimant’s type of cancer. Id. at 77.

¶12 In Forbach’s case, we find that the ALJ correctly interpreted
and applied A.R.S. § 23-901.01(C). She determined that Forbach had failed
to demonstrate “that his exposure to diesel exhaust (or any other assumed
carcinogen) is reasonably related to the development of testicular cancer.”
Therefore, she did not apply the presumption to Forbach. We find that the
record supports her conclusion. Forbach never showed that any known
carcinogen to which he was exposed is reasonably related to testicular
cancer. Indeed, the only known carcinogen that he identified was benzene,
which he admits is not related to testicular cancer. Forbach did not identify
any other specific known carcinogen to which he was exposed. Nor did he
offer a list of known carcinogens that are related to testicular cancer.

¶13 Forbach argues that he is not required to show that a specific
carcinogen is related to his particular cancer to meet the requirement for the
presumption: “[The law] do[es] not require that a particular carcinogen lead
to a particular cancer to satisfy the presumption.” He bases this argument
on a misreading of our decision in Aguirre v. Indus. Comm’n, 245 Ariz. 587
(App. 2018), aff’d in part and vacated in part, 247 Ariz. 75 (2019). Aguirre
concerned a firefighter who was diagnosed with leukemia that he claimed
was caused by exposure to chemicals as a firefighter. See id. at 588, ¶ 2. We
discussed what Aguirre was required to show to apply the presumption to
him. See id. at 593, ¶ 27. We specifically denied that he was required to
show the year of exposure, the length of time he was on the scene of
exposure, his role on the firefighting team during the exposure, or what
type of protective equipment he was wearing during the exposure. Id.
Instead, we stated:

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.”

Id. (citation omitted). There, we emphasized the showing of a general
causal link as opposed to showing that any particular instance of exposure

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caused cancer. We did not hold, as Forbach argues, that a claimant merely
needs to show exposure to any known carcinogen and diagnosis of any
cancer. The statute in subsection (C)(3)[iii] unambiguously requires that
there be a reasonable relationship between the known carcinogen and the
cancer: “The [presumption applies if the] firefighter . . . was exposed to a
known carcinogen . . . and the carcinogen is reasonably related to the
cancer.” A.R.S. § 23-901.01(C)(3).

¶14 In addition, Forbach argues that Dr. Sagalnik’s testimony was
biased and that the bias was not taken into consideration by the ALJ. Even
granting, for the sake of argument, that Dr. Sagalnik has a bias, we find no
evidence in the record that the ALJ did not take this into account and
Forbach does not point to any such evidence. Forbach also attacks Dr.
Sagalnik’s testimony by arguing that it lacked foundation. He focuses on
Dr. Sagalnik’s statement that the state of medical knowledge is insufficient
to show what caused Forbach’s cancer, whether it was his occupation or
not. Rather than take this as a statement that Forbach’s position lacks
admissible medical foundation as to causation of testicular cancer, as the
ALJ did, Forbach argues that it makes Dr. Sagalnik’s testimony speculative
or equivocal. We reject this argument, as it has no basis. As stated in his
testimony, Dr. Sagalnik’s unequivocal position that there is no known
relation between known carcinogens to which firefighters are typically
exposed and testicular cancer is supported by current medical literature.

¶15 Finally, Forbach makes public policy-based arguments that
were made in Hahn. We have not changed our conclusion that those
arguments are not appropriate in this forum when the statute is
unambiguous.

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CONCLUSION

¶16 Forbach failed to show that a known carcinogen to which he
was exposed as a firefighter was reasonably related to his testicular cancer.
For that reason, the ALJ correctly did not allow the presumption that his
cancer was an occupational disease covered by worker’s compensation.
Failing that presumption, Forbach was unable to prove that his condition is
a covered occupational disease. The award is affirmed.

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

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