City of tombstone/az Municipal v. Agudio

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CITY OF TOMBSTONE, Petitioner Employer,
AZ MUNICIPAL RISK RETENTION POOL, Petitioner Carrier,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
CARLO AGUDIO, Respondent Employee.

No. 1 CA-IC 25-0032
FILED 09-23-2026

Special Action - Industrial Commission
ICA Claim No. 20233260615
Carrier Claim No. BCLMWC0000000495972
The Honorable Cathleen E. Fuller, Administrative Law Judge

AFFIRMED

COUNSEL

Jardine Baker Hickman & Houston PLLC, Phoenix
By Stephen C. Baker
Counsel for Petitioner Employer and Petitioner Carrier

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

Carlo Agudio, Tombstone
Respondent Employee

CITY OF TOMBSTONE/AZ MUNICIPAL v. AGUDIO
Decision of the Court

MEMORANDUM DECISION

Judge Veronika Fabian delivered the decision of the Court, in which
Presiding Judge Andrew M. Jacobs and Judge Daniel J. Kiley joined.

F A B I A N, Judge:

¶1 Carlo Agudio, a truck operator for the City of Tombstone, was
taken to the emergency room after inhaling exhaust fumes that
accumulated in the cab of the truck he was driving. After Agudio submitted
a workers’ compensation claim to the Industrial Commission, he received
an award finding his injury compensable. The City of Tombstone and
insurance carrier Arizona Municipal Risk Retention Pool (collectively “the
City”) sought administrative review of the award, arguing that Agudio had
not provided documentation or expert testimony to support his claim. The
award was affirmed upon review and the City filed a petition for special
action with this Court.1 We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Agudio filed a workers’ compensation claim in November
2023 for an injury sustained on July 31, 2023, while working for the City of
Tombstone. The insurance carrier for the City of Tombstone, the Arizona
Municipal Risk Retention Pool, denied the claim in December, and Agudio
requested a hearing with the Industrial Commission. Agudio testified
about the injury at the hearing and, as the only witness, his testimony was
uncontradicted.

¶3 Agudio stated that he was working for the City of Tombstone
as a truck operator on the date of the injury. He was hauling rocks in a
dump truck from 8 a.m. to 11 a.m. Unbeknownst to him, a mechanical
malfunction caused the cab of the truck to fill with exhaust fumes. Agudio
said he did not remember what happened once he started driving other
than what other people had told him. When Agudio arrived back at the
shop at lunchtime, he was staggering and appeared to be intoxicated, and

1 Agudio has not filed an answering brief, which we could treat as a
confession of error. See Swift Transp. v. Indus. Comm’n, 189 Ariz. 10, 11 (App.
1996). In our discretion, we address the City’s contentions on the merits. See
id.

2

CITY OF TOMBSTONE/AZ MUNICIPAL v. AGUDIO
Decision of the Court

he said he felt very sick. Agudio’s foreman took him to the emergency
room. He was released that day after improving. Agudio testified that after
he left the hospital, he felt sick for a couple of days and was suffering from
dizziness and breathing trouble. Agudio testified that he was billed by the
hospital and was seeking compensation for the hospital visit.

¶4 The administrative law judge (“ALJ”) found his injury was
compensable:

The testimony that the truck’s exhaust was faulty and was
causing smoke to fill the cab of the vehicle was not
contradicted. Nor was the testimony that Mr. Agudio
returned to work after driving the truck and appeared ill
enough that his supervisor took him to the hospital to be
evaluated. There was no evidence presented that there was
another event that occurred during the time he was driving
the truck that could have caused his condition. I find the
totality of the evidence sufficient from which to infer that Mr.
Agudio inhaled fumes while driving that caused him to be ill
enough, at least temporarily, to require medical attention. He
further testified that he received a bill for the hospital visit.
The injury therefore caused him to incur an expense.
However, without any medical evidence, I cannot find that
any continuing problems Mr. Agudio has with his lungs are
related to this work incident.

Based upon all the evidence, I find that Mr. Agudio sustained
a compensable industrial injury on July 31, 2023.

(citation omitted). The ALJ awarded Agudio medical, surgical and hospital
benefits as well as temporary total or partial disability benefits for the
July 31, 2023 injury until Agudio’s condition was determined to be
medically stationary.

¶5 The City requested review by the ALJ, arguing that Agudio
had not submitted medical documentation or expert testimony and had
therefore not shown medical causation for Agudio’s injury. The ALJ issued
a decision upon review affirming that Agudio’s injury was compensable
despite a lack of documentation or expert testimony. The ALJ determined
that because the proceedings were in the compensability stage, and
Agudio’s injury was obvious to a layperson, no expert testimony was
required:

3

CITY OF TOMBSTONE/AZ MUNICIPAL v. AGUDIO
Decision of the Court

I acknowledge that the injury in question is [sic] here is
arguably not as obvious as a broken bone or lesion, the
examples of obvious injuries set forth in the Workers’
Compensation Handbook. However, it was obvious to Mr.
Agudio’s coworkers that he needed medical attention, and
they immediately took him to the emergency room. And I
adopted Mr. Agudio’s version of events because it was
uncontradicted and I found him credible. Based on those
events, it also seemed obvious to me, a layperson, that Mr.
Agudio sustained some sort of work-related injury.

¶6 The ALJ acknowledged that Agudio had sent medical
evidence of his injury after the original decision but did not consider it and
clarified, “I do not find that record was necessary for me to determine that
Mr. Agudio had a compensable claim under Arizona law.”

¶7 The City filed this statutory special action for review of the
award to Agudio. We have jurisdiction under Article VI, Section 9 of the
Arizona Constitution and A.R.S. §§ 12-120.21(B) and 23-951(A).

DISCUSSION

¶8 The City argues that, because the injury was not clearly the
result of an industrial accident to a lay person, expert testimony was
required to prove medical causation and establish a compensable claim.
Therefore, it concludes the ALJ erred in determining Agudio’s claim was
compensable based on his testimony alone.

¶9 We defer to the ALJ’s factual findings and review the ALJ’s
legal conclusions de novo. City of Tempe v. Indus. Comm’n, 261 Ariz. 466, 469
¶ 11 (App. 2026). A worker must prove both legal and medical causation
for their injury to be compensable. Polanco v. Indus. Comm’n, 214 Ariz. 489,
492 ¶ 7 (App. 2007). Medical causation is established by showing that the
accident caused the injury and ordinarily requires expert medical
testimony. Id.; DeSchaaf v. Indus. Comm’n, 141 Ariz. 318, 320 (App. 1984).
However, expert testimony is not required when the result of an industrial
accident is clearly apparent to a layperson. See Phelps v. Indus. Comm’n, 155
Ariz. 501, 505 (1987).

¶10 Here, the ALJ relied on Agudio’s uncontradicted testimony
and found him credible. Therefore, accepting that “Mr. Agudio inhaled
fumes while driving that caused him to be ill enough, at least temporarily,
to require medical attention,” the ALJ determined that “[b]ased on those

4

CITY OF TOMBSTONE/AZ MUNICIPAL v. AGUDIO
Decision of the Court

events, it also seemed obvious to [the ALJ], a layperson, that Mr. Agudio
sustained some sort of work-related injury.”

¶11 We agree with the ALJ that although Agudio’s injury “is
arguably not as obvious as a broken bone or lesion,” it was sufficiently
apparent to a layperson that the injury was caused by an industrial
accident.

¶12 The City cites to English v. Industrial Commission, 78 Ariz. 12
(1954), and Graver Tank & Manufacturing Co. v. Industrial Commission, 96
Ariz. 356 (1964), to argue that medical testimony is required to establish
medical causation in toxic inhalation cases. In both cases, the Commission’s
adoption of expert medical testimony to support its decision was affirmed.
See English, 78 Ariz. at 16; Graver Tank & Mfg. Co., 96 Ariz. at 360. But neither
case required expert medical testimony to determine causation of inhalation
injuries. And, importantly, in both cases, the injury for which the worker
sought compensation was beyond a temporary sickness from the inhalation
of toxic fumes. See English, 78 Ariz. at 13 (worker’s claimed injury was
severe disability after health deteriorated in years following gas inhalation);
Graver Tank & Mfg. Co., 96 Ariz. at 360 (no dispute that worker’s toxic
inhalation caused injury, but rather whether the injury resulted in worker’s
death). Neither case supports the conclusion that a temporary illness cannot
be, to a layperson, the clearly apparent result of the inhalation of exhaust
fumes. See Phelps, 155 Ariz. at 505.

¶13 The City also cites Holt v. Industrial Commission, No. 1 CA-IC
20-0040, 2021 WL 2345619 (Ariz. App. June 8, 2021) (mem. decision), in
support of its conclusions. However, in that case, there was expert medical
testimony that the worker had not been exposed to toxins at all during their
employment. Id. at *3 ¶ 13. This Court held that it was not an abuse of
discretion for the Commission to reject the worker’s claim under these
circumstances. Id. Here, by contrast, there is no dispute that Agudio was
exposed to exhaust fumes while at work on July 31, 2023. A layperson
“possess[es] the knowledge necessary” to determine that, due to the
inhalation of obviously toxic fumes, Agudio suffered injury requiring
hospitalization. W. Bonded Prods. v. Indus. Comm’n, 132 Ariz. 526, 527 (App.
1982).

¶14 The ALJ’s inference that Agudio’s acute injury and
hospitalization was caused by the exhaust inhalation is supported by
Agudio’s undisputed testimony. See Valente v. Bourne Mills, 75 A.2d 191, 194
(R.I. 1950) (when supported by undisputed and credible testimony, a
rational and natural inference about the cause of an injury “will stand even

5

CITY OF TOMBSTONE/AZ MUNICIPAL v. AGUDIO
Decision of the Court

though not supported by expert medical opinion”). Agudio’s testimony
established a prima facie claim that the City did not dispute or otherwise
rebut. See id. (“[M]edical evidence, although highly desirable, is not always
essential for an injured employee to make out a prima facie case, especially
if the testimony is adequate, undisputed and unimpeached.”).

CONCLUSION

¶15 The City has shown no error. We affirm.

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

6