Vande Krol v. superstition/benchmark

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ROBERT VANDE KROL, Petitioner Employee,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

SUPERSTITION FIRE & MEDICAL, Respondent Employer,

BENCHMARK INSURANCE, Respondent Insurance Carrier.
No. 1 CA-IC 22-0046
FILED 10-31-2025

Special Action - Industrial Commission
ICA Claim No. 20210280125
Carrier Claim No. 7138292
The Honorable Amy L. Foster, Administrative Law Judge

AWARD SET ASIDE

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

Industrial Commission of Arizona, Phoenix
By Afshan Peimani
Counsel for Respondent

Lundmark Barberich La Mont & Puig PC, Phoenix
By Kevin E. Karges, David T. Lundmark
Counsel for Respondent Employer and Respondent Carrier
 VANDE KROL v. SUPERSTITION/BENCHMARK
Decision of the Court

MEMORANDUM DECISION

Judge Michael S. Catlett delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Michael J. Brown joined.

C A T L E T T, Judge:

¶1 This appeal returns on remand from the Arizona Supreme
Court for us “to determine whether the ALJ correctly interpreted and
applied the 2017 statute to Vande Krol’s claim.” See Krol v. Indus. Comm’n,
259 Ariz. 261, 276 ¶ 61 (2025).

¶2 Arizona law contains a rebuttable presumption that certain
types of cancer, including brain cancer, arise out of a firefighter’s
employment and are thus eligible for workers’ compensation. See A.R.S.
§ 23-901.01(B). Under the 2017 version of A.R.S. § 23-901.01, the
presumption applies if a firefighter, among other things, “was exposed to a
known carcinogen,” “informed the [fire] department of this exposure,” and
“the carcinogen is reasonably related to the cancer.” A.R.S. § 23-
901.01(C)(3) (2017).

¶3 The third requirement—”the carcinogen is reasonably related
to the cancer”—is at issue here. A.R.S. § 23-901.01(C)(3) (2017). Specifically,
we must determine whether a firefighter must show a reasonable
relationship between the carcinogen to which he was exposed and his
specific type of brain cancer, or instead to brain cancer more generally. The
petitioner here, Robert Vande Krol (“Vande Krol”), argues the
Administrative Law Judge (“ALJ”) erred by requiring him to show a
reasonable relationship between a carcinogen and his specific type of brain
cancer. We agree. The phrase “the cancer” in § 23-901.01(C)(3) requires a
firefighter to show only a reasonable relationship between a carcinogen to
which the firefighter was exposed and one of the types of cancers
enumerated in § 23-901.01(B)(1), including brain cancer.

¶4 Because the ALJ used a different interpretation, we set aside
the award and remand for the ALJ to apply our interpretation.

FACTS AND PROCEDURAL HISTORY

¶5 Beginning in 2002, Superstition Fire and Medical Department
(“Superstition”) employed Vande Krol as a firefighter. Before starting
employment, Vande Krol underwent a physical examination. It showed no

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sign of cancer. Vande Krol’s fire station, where he worked and slept, was
located next to a large and active communications cell tower. Over his
eighteen-year career, Vande Krol was assigned to hazardous duty and
helped fight over 200 fires, during which he was exposed to various known
carcinogens, including smoke, soot, diesel fuel, and firefighting foam.

¶6 In August 2020, as part of his required annual examination,
Vande Krol underwent a full body cancer screening. The screening found
a tumor in Vande Krol’s brain, which an MRI showed was possibly a low-
grade astrocytoma or oligodendroglioma. A genetic test revealed Vande
Krol had no genetic predisposition for brain cancer.

¶7 In October 2020, Vande Krol underwent brain surgery (a right
craniotomy), which successfully removed the tumor. Thereafter, Vande
Krol was diagnosed with oligodendroglioma, a rare form of brain cancer.
After surgery, Vande Krol lost peripheral vision in his left eye, and he now
suffers cognitive impairment, vertigo, headaches, and muscle weakness.
Because Vande Krol could no longer perform his firefighting duties, his
doctor recommended medical retirement.

¶8 Vande Krol filed a workers’ compensation claim with
Superstition’s insurer, Benchmark Insurance Company (“Benchmark”),
stating that his brain cancer was a covered occupational disease.
Benchmark denied the claim, so Vande Krol requested a hearing before an
ALJ. Vande Krol maintained that his brain cancer qualified as a
compensable occupational disease under A.R.S. § 23-901.01(B)—the
statutory presumption available to firefighters diagnosed with certain
cancers resulting in disability or death.

¶9 At the hearing, the ALJ heard testimony from Vande Krol and
two medical experts. Dr. Smith, a former firefighter and current physician,
testified for Vande Krol. He opined that the “probable cause” of Vande
Krol’s brain cancer was a combination of exposure to (1) the byproducts of
combustion from fires, (2) firefighting foam, (3) diesel fumes, and (4)
radiation emitted from the cell tower near his fire station.

¶10 Dr. Peter Ferrara, a surgical oncologist, testified for
Superstition and Benchmark (together, “Respondents”). Dr. Ferrara
testified that the only “definite caus[e] of brain cancers is ionizing
radiation,” and there was no evidence of such exposure. Dr. Ferrara said
he could not opine to a “reasonable degree of medical probability” that
Vande Krol’s exposure to any carcinogens commonly associated with
firefighting were related to his “type of brain cancer.”

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¶11 The ALJ issued a written award denying Vande Krol’s claim.
The ALJ found that Vande Krol was diagnosed with oligodendroglioma, a
type of brain cancer, and acknowledged that “brain cancer [is] a type of
cancer that can have the occupational disease presumption for
firefighters[.]” The ALJ determined Vande Krol satisfied the requirements
of A.R.S. § 23-901.01(C), save for one. Based on the ALJ’s interpretation of
A.R.S. § 23-901.01(C)(3), she concluded Vande Krol failed to prove that his
exposure to a specific carcinogen caused his specific type of brain cancer
(oligodendroglioma). And, because Vande Krol had not made that
showing, the ALJ concluded Vande Krol had not suffered a compensable
injury entitling him to compensation.

¶12 Vande Krol requested additional review. But the ALJ
affirmed her decision, reiterating that Vande Krol’s burden was to show
that “the carcinogens caused [his] specific type of cancer.”

¶13 Vande Krol timely sought our review. We have jurisdiction.
A.R.S. § 12-120.21(B); A.R.S. § 23-943(H); Ariz. R.P. Spec. Act. 10.

DISCUSSION

¶14 When reviewing a worker’s compensation award, we “defer
to the ALJ’s factual findings but review questions of law de novo.” Special
Fund Div. v. Indus. Comm’n, 252 Ariz. 267, 269 ¶ 6 (App. 2021). This case
requires us to engage in statutory interpretation, which we do de novo.
Voice of Surprise v. Hall, 255 Ariz. 510, 513 ¶ 11 (2023).

¶15 The primary issue we decide is what Vande Krol had to show
to satisfy § 23-901.01(C)(3). Respondents contend § 23-901.01(C)(3) requires
a reasonable relationship between exposure to a carcinogen and a
claimant’s specific type of brain cancer. Vande Krol responds that § 23-
901.01(C) requires only that a carcinogen to which he was exposed be
reasonably related to brain cancer generally. So the parties’ dispute turns
on what “the cancer” in § 23-901.01(C)(3) means.

I. Occupational Diseases Generally

¶16 In the usual workers’ compensation case, a claimant must
satisfy A.R.S. § 23-901.01(A) to establish that a condition is an occupational
disease arising out of employment. A.R.S. § 23-901.01(A); Phx. Pest Control
v. Indus. Comm’n, 134 Ariz. 215, 219 (App. 1982). That subsection requires
proof of direct and proximate causation. It requires 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)(1) (emphasis added). And

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it requires that “[t]he disease can be fairly traced to the employment as the
proximate cause.” A.R.S. § 23-901.01(A)(3) (emphasis added). These
requirements ensure the disease “is one related to employment, and not one
which is part of the ordinary hazards of life to which the general public is
exposed.” Ford v. Indus. Comm’n, 145 Ariz. 509, 518 (1985).

II. The Firefighter Presumption

¶17 Beginning in 2001, Arizona joined a growing number of states
to enact a statutory presumption easing causation for firefighters with
certain cancers. See A.R.S. §§ 23-901.01(B)–(E) (2001); 2001 Ariz. Sess. Laws
ch. 192, § 1 (1st Reg. Sess.); see also Krol, 259 Ariz. at 265 ¶ 2 (summarizing
the legislative history of A.R.S. § 23-901.01’s statutory presumption for
firefighters). In 2017, the legislature amended the statute to create a burden-
shifting framework. See A.R.S. §§ 23-901.01(B)–(G) (2017); 2017 Ariz. Sess.
Laws ch. 318, § 1 (1st Reg. Sess.). We detail the framework as it existed in
2017 because that was the version in place when Vande Krol filed his claim.
See Krol, 259 Ariz. at 274 ¶ 50.

¶18 Subsection 23-901.01(B) (“(B)”) provides that certain cancers
suffered by firefighters resulting in death or disability are presumed to be
“occupational disease[s] . . . deemed to arise out of employment.” Relevant
here, the presumption applies to “brain, bladder, rectal or colon cancer,
lymphoma, leukemia or adenocarcinoma or mesothelioma of the
respiratory tract[.]” A.R.S. § 23-901.01(B)(1).

¶19 Subsection 23-901.01(C) (“(C)”) “imposes a lesser burden for
certain occupational diseases occurring in firefighters and peace officers.”
Hahn v. Indus. Comm’n, 227 Ariz. 72, 75 ¶ 10 (App. 2011). It lists the
following requirements to obtain the presumption:

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

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

3. The firefighter . . . [i] was 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.

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A.R.S. § 23-901.01(C)(1)–(3).

¶20 Subsection 23-901.01(F) (“(F)”) provides that the presumption
in (B) can be rebutted by showing “by a preponderance of the evidence that
there is a specific cause of the cancer other than an occupational exposure
to a carcinogen[.]” A.R.S. § 23-901.01(F).

III. “The Cancer” In (C)

¶21 Having described the framework, we turn to the interpretive
question posed. When interpreting a statute, we begin with its text. Planned
Parenthood Ariz., Inc. v. Mayes, 257 Ariz. 137, 142 ¶ 15 (2024). When the text
is unambiguous, we apply it. See Shea v. Maricopa County, 255 Ariz. 116,
120–21 ¶ 19 (2023). We “determine the plain meaning of the words the
legislature chose to use, viewed in their broader statutory context.”
Columbus Life Ins. Co. v. Wilmington Tr., N.A., 255 Ariz. 382, 385 ¶ 11 (2023).
That is, we read statutes contextually “to give meaning, if possible, to every
word and provision so that no word or provision is rendered superfluous.”
Nicaise v. Sundaram, 245 Ariz. 566, 568 ¶ 11 (2019).

¶22 Section 23-901.01 first uses the term “cancer” in (B), which
lists the cancers a firefighter must be diagnosed with to qualify for the
presumption. Relevant here, (B)(1) provides that the presumption applies
to (1) firefighters with (2) the following cancers: “brain, bladder, rectal or
colon cancer, lymphoma, leukemia or adenocarcinoma or mesothelioma of
the respiratory tract[.]” A.R.S. § 23-901.01(B)(1). Vande Krol satisfied those
two requirements—he was a firefighter diagnosed with brain cancer. As
the ALJ concluded, Vande Krol could invoke (B)(1) because “brain cancer
[is] a type of cancer that can have the occupational presumption” apply.
(Emphasis added).

¶23 The question then became whether Vande Krol qualified for
the presumption by meeting the conditions in (C). That subsection
expressly ties (B) and (C) together with the phrase “[t]he presumptions
provided in subsection B of this section[.]” Reading (B) and (C) together, a
firefighter with one of the enumerated cancers—for example, brain
cancer—is presumed to have an occupational disease arising out of
employment once he satisfies (C)’s requirements.

¶24 Turning to the one requirement at issue here, (C)(3) requires
“the carcinogen” at issue to be “reasonably related to the cancer.” A.R.S.
§ 23-901.01(C)(3) (emphasis added). What does “the cancer” mean? The
legislature indicated what it means by using a definite article—”the”—
before “cancer.” Using “the” before cancer means the term “cancer” in

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(C)(3) is the same as “the cancer” previously described in the statute. See
Smith v. Melson, Inc., 135 Ariz. 119, 121 (1983) (“Unlike the indefinite article
‘a,’ ‘the’ is a definite article used in reference to a particular thing[.]”);
Nielsen v. Preap, 586 U.S. 392, 408 (2019) (“[G]rammar and usage establish
that ‘the’ is a function word . . . indicat[ing] that a following noun . . . has
been previously specified by context.”) (cleaned up). The statute previously
uses the term “cancer” in (B), which lists the types of cancer subject to the
presumption, including brain cancer in (B)(1). So, read together, (B) lists
types of cancers and “the cancer” in (C)(3) refers to those same types. So to
obtain the presumption in (B), a firefighter must show only a reasonable
relationship between a type of cancer in (B) and the carcinogen or
carcinogens to which he was exposed.

¶25 Other text within § 23-901.01 supports this interpretation.
Subsection (D) explains which claimants may seek the presumption in (B).
A.R.S. § 23-901.01(D). It explains that the presumption applies to a former
firefighter who is 65 or younger and is diagnosed “with a cancer that is
listed in subsection B” not more than 15 years after his last employment
date. A.R.S. § 23-901.01(D). Tying the statute’s application to “a cancer that
is listed in subsection B” further supports that “the cancer” in (C) also refers
to the cancers listed in (B).

¶26 Subsection (F) (“(F)”) also uses that definite phrase. It says
the presumptions in (B) may be rebutted with evidence “that there is a
specific cause of the cancer” other than from an occupational exposure.
A.R.S. § 23-901.01(F) (emphasis added). Again, like (C) and (E) before it, (F)
uses the phrase “the cancer” to refer to the cancers listed in (B).

¶27 Subsection (E) (“(E)”) follows a framework like (B) and (C).
Subsection (E) says the presumption does not “apply to cancers of the
respiratory tract” if there is evidence that the firefighter’s exposure to
cigarettes or tobacco products outside employment “is a substantial
contributing cause in the development of the cancer.” A.R.S. § 23-901.01(E)
(emphasis added). Like (B) and (C), the beginning of (E) describes the types
of cancers to which it applies—”cancers of the respiratory tract”—and the
end of (E) again refers to those cancers with the definite phrase “the cancer.”

¶28 Precedent supports our interpretation. In Hahn, we
interpreted the “reasonable relationship” requirement in a prior version of
§ 23-901.01. 227 Ariz. at 75–76 ¶¶ 13–16. That version had language
materially similar to the version we now interpret. See id. at 75 ¶ 10. We
observed in Hahn that “a firefighter need only show a general causal link
between a carcinogen to which he was exposed and one of the enumerated

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cancers to qualify for the presumption, not that the exposure caused his
particular cancer.” Id. at 76 ¶ 16. And, in Aguirre v. Industrial Commission of
Arizona, we repeated that statement from Hahn. 245 Ariz. 587, 593 ¶ 27
(App. 2018), aff’d in part and vacated in part, 247 Ariz. 75 (2019).

¶29 Applying our interpretation, Vande Krol’s claim is subject to
the presumption in (B)(1) because (everyone agrees) he had brain cancer.
Under (C)(3), Vande Krol had to prove that a carcinogen or carcinogens to
which he was exposed is reasonably related to the type of cancer making
him eligible under (B)(1)—namely, brain cancer. He was not required to
show that the carcinogens are reasonably related to some specific type, or
subset, of brain cancer, like oligodendroglioma.

¶30 For three reasons, we reject the Respondents’ interpretation.
First, their interpretation—which requires a connection between a
carcinogen and a particular type of cancer that is a subset of those found in
(B)—narrows the meaning of “the cancer” as used in (C)(3) by imposing a
requirement nowhere found in the text. Had the legislature wanted to
impose that requirement it would have used a different phrase in (C)(3)—
perhaps “the specific type of cancer” or the “firefighter’s cancer.” The lack
of any such limiting language demonstrates that “the cancer” in (C)(3)
refers to those discussed in (B), and not a more specific type of cancer.

¶31 In fact, subsection (F) provides that to rebut the presumption,
the employer/insurer must present evidence of a “specific cause of the
cancer other than an occupational exposure.” A.R.S. § 23-901.01(F). This
use of “specific” in (F) shows that the legislature was not shy about
imposing specificity requirements when it desired. It chose not to do so in
(C)(3); it is not for us to disturb that choice. See City of Phoenix v. Butler, 110
Ariz. 160, 162 (1973) (courts do not “rewrite statutes”).

¶32 Second, Respondents’ interpretation would result in the term
“cancer” in the statute having inconsistent meanings. In (D) and (F),
“cancer” refers to those cancers listed in (B). But Respondents would have
us interpret “cancer” in (C)(3) to refer to the firefighter’s specific type of
cancer. We presume that “identical words used in different parts of the
same Act are intended to have the same meaning.” Obregon v. Indus.
Comm’n, 217 Ariz. 612, 616 ¶ 21 (App. 2008) (cleaned up); see also Fann v.
State, 251 Ariz. 425, 442 ¶ 60 (2021). Respondents have not overcome this
presumption and thus we apply it here—”cancer” in (C)(3), (D), and (F)
refers to a type of cancer listed in (B).

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¶33 Third, the legislature exercised judgment about which cancers
to include or not in (B)—it included only certain types of cancers. See A.R.S.
§ 23-901.01(B). It then made a second judgment about which cancers to
include in (B)(1) and which to include in (B)(2). See A.R.S. §§ 23-901.01(B),
(C). For example, the legislature included “lymphoma” in (B)(1) and “non-
[H]odgkin’s lymphoma” in (B)(2), and it included “mesothelioma of the
respiratory tract” in (B)(1) and “lung” cancer in (B)(2). Had the legislature
wanted to include specific types of brain cancer in (B)(1) or (B)(2) it could
have done so. But it did not. If we were to require a reasonable relationship
between a carcinogen and a specific type of brain cancer, it would upset the
legislature’s choice to identify “brain cancer” as a type of cancer that can
trigger the presumption.

¶34 We conclude that, under (C)(3), a firefighter need not show
that his exposure to a carcinogen is reasonably related to his specific type
of brain cancer. Instead, he must show that a carcinogen to which he was
exposed is reasonably related to brain cancer generally.

CONCLUSION

¶35 We set aside the award and remand for the ALJ to determine
whether Vande Krol showed that a carcinogen to which he was exposed is
reasonably related to brain cancer. See A.R.S. § 23-951(B); Kennecott Copper
Corp. v. Indus. Comm’n, 62 Ariz. 516, 521–22, 528 (1945) (reviewing court can
only set aside the award and must assume on rehearing due consideration
will be given to facts). If Vande Krol did so, then the ALJ must decide
whether, under (F), Respondents rebutted the presumption in (B)(1). If not,
then Vande Krol is entitled to workers’ compensation.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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