Vande Krol v. superstition/benchmark

IN THE

SUPREME COURT OF THE STATE OF ARIZONA
ROBERT VANDE KROL,
Petitioner Employee,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA,
Respondent,

SUPERSTITION FIRE & MEDICAL,
Respondent Employer,

BENCHMARK INSURANCE,
Respondent Insurance Carrier.

No. CV-23-0211-PR
Filed March 26, 2025

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

Opinion of the Court of Appeals, Division One
255 Ariz. 495 (App. 2023)
VACATED AND REMANDED

COUNSEL:

Christopher Norton, Norton & Brozina, P.C., Phoenix; and Elizabeth L.
Fleming (argued), Maile Lei Belongie, Udall Law Firm, LLP, Tucson,
Attorneys for Benchmark Insurance

Thomas C. Whitley (argued), Nicholas C. Whitley, Taylor & Associates
P.L.L.C., Phoenix, Attorneys for Robert Vande Krol

VANDE KROL V. SUPERSTITION/BENCHMARK
Opinion of the Court

D. Andrew Gaona, Austin C. Yost, Coppersmith Brockelman PLC, Phoenix,
Attorneys for Amici Curiae International Association of Fire Fighters and
Professional Fire Fighters of Arizona

JUSTICE KING authored the Opinion of the Court, in which CHIEF
JUSTICE TIMMER, VICE CHIEF JUSTICE LOPEZ, and JUSTICES BOLICK,
BEENE, and BRUTINEL * (RETIRED) joined. JUSTICE MONTGOMERY
authored a dissenting opinion.

JUSTICE KING, Opinion of the Court:

¶1 An individual who files a claim for workers’ compensation
benefits has the burden “to show affirmatively all of the material elements
necessary to sustain an award.” In re Bedwell’s Estate, 104 Ariz. 443, 444
(1969). This includes the requirement to establish that an occupational
disease arose out of the claimant’s employment. A.R.S.
§§ 23-901(13)(c), -901.01(A)(1)–(6).

¶2 In 2001, the legislature created a new statutory presumption
for firefighters, which eased their burden in proving causation when
seeking benefits for certain diseases, infirmities, and impairments.
§ 23-901.01 (2001) (“2001 statute”); 2001 Ariz. Sess. Laws ch. 192, § 1 (1st
Reg. Sess.). Under the 2001 statute, those enumerated conditions were
presumed to be occupational diseases that arose out of employment if the
firefighter established the elements in § 23-901.01(B)(1)–(3) (2001). In 2017,
the legislature added a new provision in § 23-901.01(F) to specify the
evidence needed to rebut that statutory presumption. § 23-901.01 (2017)
(“2017 statute”); 2017 Ariz. Sess. Laws ch. 318, § 1 (1st Reg. Sess.). Then,
in 2021, the legislature relaxed the burden on firefighters to establish the
statutory presumption and also heightened the evidentiary standard to
rebut the presumption. A.R.S. § 23-901.09 (2021) (effective Sept. 29, 2021)
(“2021 statute”); 2021 Ariz. Sess. Laws ch. 229, §§ 5–6 (1st Reg. Sess.).

¶3 In January 2021, firefighter Robert Vande Krol filed a
workers’ compensation claim, identifying his injury as brain cancer and the

*
Justice Brutinel retired after oral argument in this case but nevertheless
participated in deciding this Opinion.

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date of injury as October 28, 2020. Vande Krol contends that the 2021
statute applies to his workers’ compensation claim, even though the 2021
statute became effective nearly a year after his injury and eight months after
he filed his claim. See 2021 Ariz. Sess. Laws ch. 229, § 6 (1st Reg. Sess.);
§ 23-901.09 (2021) (effective Sept. 29, 2021).

¶4 We conclude that the 2021 statute does not apply to Vande
Krol’s workers’ compensation claim. There is nothing in the 2021 statute
that expressly declares it to be retroactive. See A.R.S. § 1-244 (“No statute
is retroactive unless expressly declared therein.”). Further, the statutory
presumption is a substantive law, and the substantive right of the employer
and insurer vested at the time Vande Krol filed his workers’ compensation
claim. Therefore, the 2017 statute applies.

BACKGROUND

¶5 Superstition Fire and Medical District (“Superstition”) hired
Vande Krol in 2002. Vande Krol worked for Superstition as a firefighter
and engineer for eighteen years. In the course of his employment, he was
exposed to smoke, soot, and firefighting foam used to extinguish fires.

¶6 In August 2020, Vande Krol participated in a routine,
whole-body screening. The screening found a mass in Vande Krol’s brain.
In October 2020, Vande Krol underwent brain surgery (a right craniotomy)
to remove the mass. Vande Krol was diagnosed with oligodendroglioma,
a rare form of brain cancer. After the surgery, he experienced headaches,
vertigo, vision deficits, and memory problems.

¶7 In January 2021, Vande Krol filed a workers’ compensation
claim identifying his employer as Superstition, his injury as brain cancer,
and the date of injury as October 28, 2020. Superstition’s insurer,
Benchmark Insurance Company (“Benchmark”), denied Vande Krol’s
claim on February 18, 2021. 1 On May 4, 2021, Vande Krol requested a
hearing before an administrative law judge (“ALJ”) with the Industrial
Commission of Arizona (“ICA”). The ALJ held an evidentiary hearing
over three non-consecutive days beginning on October 5, 2021.

1 We collectively refer to Superstition and Benchmark as “Respondents.”
We collectively refer to employers and insurance carriers generally in
workers’ compensation cases as “respondents.”

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¶8 At the hearing, Vande Krol argued his brain cancer was an
occupational disease that qualified him for workers’ compensation benefits.
In an effort to establish a connection between his brain cancer and his work
as a firefighter, Vande Krol argued that his cancer was caused by exposure
to (1) smoke and soot, (2) firefighting foam, (3) diesel fumes from fire
engines, and (4) a cell tower located near his fire station.

¶9 The ALJ heard testimony from experts Dr. Gary Smith and
Dr. Peter Ferrara. Dr. Smith testified there was a “high probability” that
Vande Krol’s previous workplace exposures caused his brain cancer. Dr.
Ferrara testified that the only known cause of oligodendroglioma is
ionizing radiation, and Vande Krol’s record did not show exposure to that
form of radiation.

¶10 Respondents argued that the 2017 statute applied to Vande
Krol’s workers’ compensation claim because this statutory version was in
effect when Vande Krol received his cancer diagnosis and when he filed his
claim. The 2017 statute provided, in relevant part: “Any disease, infirmity
or impairment of a firefighter’s . . . health that is caused by
brain . . . cancer . . . and that results in disability or death is presumed to be
an occupational disease . . . and is deemed to arise out of employment” if
all of the following apply:

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 . . . 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.

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VANDE KROL V. SUPERSTITION/BENCHMARK
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§ 23-901.01(B)–(C) (2017). 2 The presumption “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.” § 23-901.01(F) (2017).

¶11 Vande Krol had apparently passed a physical examination
before employment (which did not indicate evidence of cancer) and was
assigned to hazardous duty for at least five years. See § 23-901.01(C)(1)–(2)
(2017). But Respondents argued that his workers’ compensation claim
should be denied under the 2017 statute because Vande Krol “could not
identify any specific exposure to a known carcinogen,” and there was “no
credible evidence reasonably linking a carcinogen to which he was
allegedly exposed to his brain cancer (oligodendrogliomas).” See
§ 23-901.01(C)(3) (2017).

¶12 Conversely, Vande Krol argued that his claim was governed
by the 2021 statute, which was signed into law on April 14, 2021, and took
effect on September 29, 2021, days before the start of the evidentiary
hearing. See 2021 Ariz. Sess. Laws ch. 229, § 6 (1st Reg. Sess.); § 23-901.09
(2021). Vande Krol reasoned that the 2021 statute controlled because it
went into effect before a final determination on compensability had been
made.

¶13 Under the 2021 statute, the presumption applies if both:

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.

§ 23-901.09(B) (2021). Thus, the 2021 statute removed the requirement
that, for the presumption to apply, the claimant must prove that he or she
was exposed to a known carcinogen as defined by the international agency
for research on cancer, and the carcinogen is reasonably related to the

2 The 2017 and 2021 statutes require a firefighter to prove an additional
element if the firefighter has certain diagnosed conditions that are not
relevant here. See §§ 23-901.01(C)(4) (2017), -901.09(B)(3) (2021).

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VANDE KROL V. SUPERSTITION/BENCHMARK
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cancer. The 2021 statute also heightened the evidentiary standard for
respondents to overcome the presumption. Instead of a “preponderance
of the evidence,” the presumption can only be rebutted “by clear and
convincing 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.” § 23-901.09(E) (2021).

¶14 Vande Krol claimed that he was entitled to workers’
compensation benefits under the 2021 statute because he established the
two elements of the presumption, and Respondents failed to prove by clear
and convincing evidence that there is a specific cause of Vande Krol’s cancer
other than his occupational exposure to a carcinogen. See
§ 23-901.09(A)–(B), (E) (2021). Alternatively, Vande Krol argued that,
even if the 2017 statute applied, he was entitled to benefits because he
established the presumption by presenting evidence of his exposure to
known carcinogens that were reasonably related to his brain cancer, and
Respondents failed to rebut the presumption by a preponderance of the
evidence. See § 23-901.01(C), (F) (2017).

¶15 The ALJ issued a written decision. In determining which
statutory version applied to Vande Krol’s claim, the ALJ cited the
legislature’s declaration in § 1-244 that “[n]o statute is retroactive unless
expressly declared therein.” The ALJ observed that there is no provision
in the 2021 statute making the changes retroactive, and thus the 2021 statute
can only apply to claims that arise after its effective date. Because Vande
Krol identified his injury date as October 28, 2020, the ALJ determined that
the 2017 statute applied to his claim.

¶16 Applying the 2017 statute, the ALJ concluded that Vande Krol
satisfied the first two elements of the statutory presumption. Vande Krol
(1) was a firefighter who passed a physical examination before employment
and the examination did not indicate evidence of cancer, and (2) was
assigned to hazardous duty for at least five years. See § 23-901.01(C)(1)–(2)
(2017). But the ALJ determined that Vande Krol failed to establish the
third element in the 2017 statute, as his experts “did not provide a link
between a specific carcinogen and the specific cancer [Vande Krol] has.”
See § 23-901.01(C)(3) (2017). The ALJ explained that while there is not
much research regarding the causes of oligodendroglioma, “[t]he only
known cause is ionizing radiation, which is not present in this case.”
According to the ALJ, Vande Krol “has not established by [a]

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preponderance of the evidence that he sustained a compensable injury on
October 28, 2020” and his “claim is not compensable.” Vande Krol filed a
request for review, and the ALJ affirmed the original decision.

¶17 The court of appeals disagreed with the ALJ as to which
version of the statutory presumption applied. Vande Krol v. Indus.
Comm’n, 255 Ariz. 495, 505 ¶ 43 (App. 2023). The court concluded that the
2021 statute applied to Vande Krol’s workers’ compensation claim, citing
the 2021 statute’s text that specifies who the presumption applies to, the fact
that the 2021 statute became effective before Vande Krol’s evidentiary
hearing, and the court’s determination that the statutory presumption was
procedural in nature. Id. at 501–05 ¶¶ 22–43. According to the court,
application of the 2021 statute to Vande Krol’s claim did “not result in an
impermissible retroactive application.” Id. at 498 ¶ 3. Because the ALJ
did not apply the 2021 statute, the court set aside the ALJ’s award of
non-compensation. Id. at 505 ¶ 43.

¶18 We granted review because determining which version of the
statutory presumption applies to workers’ compensation claims is an issue
of statewide importance that is likely recurring. We have jurisdiction
under article 6, section 5(3) of the Arizona Constitution.

DISCUSSION

¶19 When reviewing the findings and conclusions in a workers’
compensation case, 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). The interpretation and application of a statute
presents questions of law we review de novo. Voice of Surprise v. Hall, 255
Ariz. 510, 513 ¶ 11 (2023).

A. The Legislature Amended Arizona’s Workers’ Compensation Scheme
To Create A Statutory Presumption For Certain Workers.

¶20 The Arizona Constitution mandates that the “legislature shall
enact a workmen’s compensation law” providing compensation for an
employee’s personal injury or death “from any accident arising out of and
in the course of, such employment.” See Ariz. Const. art. 18, § 8. The
legislature enacted that statutory scheme in title 23, chapter 6. See A.R.S.
§§ 23-901 to -1105.

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¶21 In § 23-901(13)(c), the definition of “[p]ersonal injury by
accident arising out of and in the course of employment” includes “[a]n
occupational disease that is due to causes and conditions characteristic of
and peculiar to a particular trade, occupation, process or employment, and
not the ordinary diseases to which the general public is exposed.”
Generally, an occupational disease under § 23-901(13)(c) is deemed to arise
out of employment if the claimant establishes all six requirements in A.R.S.
§ 23-901.01(A)(1)–(6). See In re Bedwell’s Estate, 104 Ariz. at 444. But, as
discussed, the legislature opted to eliminate the standard causation
approach for firefighters with certain diseases, infirmities, and
impairments, and replace it with a statutory presumption instead.

B. The Law Presumes That Statutes Do Not Apply Retroactively.

¶22 One longstanding canon of construction is that “statutes are
presumed to have a prospective and not a retroactive effect.” Gietz v.
Webster, 46 Ariz. 261, 267 (1935). Stated otherwise, the law presumes that
a statute applies only prospectively from the effective date of the statute.

¶23 This “presumption against retroactive legislation is deeply
rooted in our jurisprudence, and embodies a legal doctrine centuries older
than our Republic. Elementary considerations of fairness dictate that
individuals should have an opportunity to know what the law is and to
conform their conduct accordingly; settled expectations should not be
lightly disrupted.” Landgraf v. USI Film Prods., 511 U.S. 244, 265 (1994)
(footnote omitted). “For that reason, the ‘principle that the legal effect of
conduct should ordinarily be assessed under the law that existed when the
conduct took place has timeless and universal appeal.’” Id. (quoting Kaiser
Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 855 (Scalia, J.,
concurring)).

¶24 Notably, this “antiretroactivity principle finds expression in
several provisions of our Constitution.” Id. at 266 (discussing the Ex Post
Facto Clause, see U.S. Const. art. I, § 9, cl. 3; the prohibition on state laws
“impairing the Obligation of Contracts,” see U.S. Const. art. I, § 10, cl. 1; the
Fifth Amendment’s Takings Clause, see U.S. Const. amend. V; the
prohibition on “Bills of Attainder,” see U.S. Const. art. I, § 9, cl. 3; and the
Due Process Clause, see U.S. Const. amend. V). “These provisions
demonstrate that retroactive statutes raise particular concerns” with respect

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to the legislature’s ability “to sweep away settled expectations suddenly
and without individualized consideration.” Id.

C. The Legislature Did Not Expressly Declare That The 2021 Statute
Should Be Applied Retroactively.

¶25 The legislature has specifically directed that “[n]o statute is
retroactive unless expressly declared therein.” § 1-244. Thus, when the
legislature expressly declares that a statute is retroactive, the presumption
against retroactivity does not apply. See Aranda v. Indus. Comm’n, 198 Ariz.
467, 470 ¶ 10 (2000) (“Statutes must contain an express statement of
retroactive intent before retroactive application may occur.”); San Carlos
Apache Tribe v. Superior Court, 193 Ariz. 195, 205 ¶ 14 (1999) (“It is
true . . . that § 1-244 requires an express statement of retroactive intent
before a statute will be considered retroactive.”); see also City of Tucson v.
Clear Channel Outdoor, Inc., 209 Ariz. 544, 549 ¶ 16 (2005) (noting “the settled
rule” that “absent an express legislative statement to the contrary, an
act . . . does not apply to a suit pending at the time the act becomes
effective”). There is a clear benefit in requiring the legislature to provide
an express statement of retroactive intent. Doing so helps ensure that the
legislature has weighed the benefits of a statute applying retroactively
against any potential unfairness or negative effect on private rights.

¶26 The legislature knows how to provide for the retroactivity of
measures that it enacts. In fact, the legislature included several express
retroactivity provisions in acts passed during the 2021 legislative session.
See, e.g., 2021 Ariz. Sess. Laws ch. 43, § 3 (1st Reg. Sess.) (“This act applies
retroactively to from and after December 31, 2020.”); 2021 Ariz. Sess. Laws
ch. 242 § 5 (1st Reg. Sess.); 2021 Ariz. Sess. Laws ch. 375 § 15 (1st Reg. Sess.);
2021 Ariz. Sess. Laws ch. 383 § 6 (1st Reg. Sess.); 2021 Ariz. Sess. Laws ch.
401 § 7 (1st Reg. Sess.). The 2021 statute, however, does not contain an
express retroactivity provision, either in the statutory text or session law.
§ 23-901.09 (2021); 2021 Ariz. Sess. Laws ch. 229 §§ 5–6 (1st Reg. Sess.).

¶27 Even so, it is “not necessary that the legislature use the
expression, ‘this statute shall be retroactive,’ or any similar one,” to
accomplish the purpose of retroactivity. Schuster v. Schuster, 42 Ariz. 190,
199 (1933). “Any language that shows a legislative purpose to bring about
this result is sufficient.” Id. “Declarations of intent may be helpful in
interpretation, but the text of a measure must be considered first and

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foremost.” San Carlos Apache Tribe, 193 Ariz. at 204–05 ¶ 14 (concluding
that there was “an overall legislative intent to apply all of the statutes
retroactively” where “several of the statutes cannot sensibly be applied
prospectively”).

¶28 Vande Krol and amici contend that the 2021 statute contains
express retroactive language. They point to language in the 2021 statute
which states that the presumption “applies to both of the following: 1.
Firefighters . . . currently in service. 2. Former firefighters . . . who are
sixty-five years of age or younger and who are diagnosed with a
cancer . . . not more than fifteen years after the firefighter’s . . . last date of
employment as a firefighter.” See § 23-901.09(C) (2021). They claim that
the 2021 statute ties its applicability to a former firefighter’s age and the
relationship between the date of diagnosis and the last date of employment;
and there is no exception to such application where the claim and date of
injury occurred before the 2021 statute’s effective date.

¶29 We disagree that § 23-901.09(C)(2) (2021) contains an express
declaration of retroactivity for a former firefighter like Vande Krol. See
§ 1-244. Section 23-901.09(C)(2) simply defines the general class of people
eligible for the statutory presumption (the “who”) and provides an end date
for their eligibility (a statute of limitations of sort). It does not, however,
express when the statutory presumption applies or that it should have
retroactive application. See Landgraf, 511 U.S. at 288 (Scalia, J., concurring)
(“[R]efinement and subtlety are no substitute for clear statement.”). And
although the legislature did not create an exception to application of the
2021 statute where the claim and date of injury occurred before the effective
date of the statute, our inquiry is not focused on what is not in the 2021
statute. Instead, our inquiry is on whether retroactivity is “expressly
declared” in the statute. See § 1-244.

¶30 The 2021 statute fails to evince the legislature’s intent that it
apply retroactively. It does not contain express retroactive language or
any other language indicating that the legislature intended the 2021 statute
to apply to claims pending when the 2021 statute became effective. The
text does not show any legislative purpose to bring about the result of
retroactivity or “an overall legislative intent to apply [the 2021 statute]
retroactively.” See San Carlos Apache Tribe, 193 Ariz. at 204–05 ¶ 14;
Schuster, 42 Ariz. at 199. In sum, there is nothing in the 2021 statute that

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overcomes the presumption against retroactivity. 3 See § 1-244.

D. The Presumption In The 2021 Statute Is Substantive In Nature.

¶31 “[T]he absence of any legislative declaration about
retroactivity does not end our inquiry.” State v. Fell, 210 Ariz. 554, 560 ¶ 22
(2005). Although § 1-244 categorically applies to all statutes, this Court
has held that “[e]nactments that are procedural only, and do not alter or
affect earlier established substantive rights may be applied retroactively.
Even if a statute does not expressly provide for retroactivity, it may still be
applied if merely procedural because litigants have no vested right in a
given mode of procedure.” Aranda, 198 Ariz. at 470 ¶ 11 (internal citations
omitted); see also Bouldin v. Turek, 125 Ariz. 77, 78 (1979); San Carlos Apache
Tribe, 193 Ariz. at 205 ¶ 15. But the legislature “may not disturb vested
substantive rights by retroactively changing the law that applies to
completed events.” San Carlos Apache Tribe, 193 Ariz. at 205 ¶ 15. Thus,
we must now determine whether the presumption in the 2021 statute is
procedural or substantive in nature.

¶32 “Substantive law ‘creates, defines and regulates rights.’”
Aranda, 198 Ariz. at 470 ¶ 12 (quoting Hall v. A.N.R. Freight Sys., Inc., 149
Ariz. 130, 138 (1986)). Conversely, a procedural law “prescribes the
method of enforcing such rights or obtaining redress.” Hall, 149 Ariz.
at 138 (quoting Allen v. Fisher, 118 Ariz. 95, 96 (App. 1977)); see also Aranda,
198 Ariz. at 470 ¶ 12 (explaining a procedural law “relates to the manner
and means by which a right to recover is enforced or provides no more than
the method by which to proceed”); Daou v. Harris, 139 Ariz. 353, 358 (1984)
(“[T]he methods of perfecting and processing such rights are procedural.”);
State v. Birmingham, 96 Ariz. 109, 110 (1964) (“[T]he adjective, remedial or
procedural law is that which prescribes the method of enforcing the right
or obtaining redress for its invasion. It is often said the adjective law
pertains to and prescribes the practice, method, procedure or legal
machinery by which the substantive law is enforced or made effective.”).

3 Interpreting the 2021 statute in this manner does not nullify the express
language of § 23-901.09(C)(2) (2021), as amici claim.
Section 23-901.09(C)(2) (2021) is still given effect in the prospective
application of the 2021 statute.

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¶33 Before us is a unique presumption that certain enumerated
diseases, infirmities, and impairments are deemed occupational diseases
arising out of employment, entitling a firefighter to workers’ compensation
benefits, as long as that firefighter proves certain enumerated elements and
respondents do not rebut the presumption. See § 23-901.01(B), (C) (2017);
§ 23-901.09(A)–(B) (2021).

¶34 In evaluating the nature of the presumption in the 2021
statute, we begin with this Court’s observation in State v. Grilz, 136 Ariz.
450 (1983), that the United States Supreme Court has “identified several
kinds of presumptions”:

A “permissive presumption” is really nothing more than an
inference. It allows the trier of fact to infer the presumed fact
from proof of the basic facts, but places no burden of any kind
on the defendant. A “mandatory presumption” requires the
trier of fact to find the presumed fact upon proof of the basic
fact unless the defendant has presented some evidence to
rebut the presumption. The class of mandatory presumptions
is further divided into two parts. There are mandatory
presumptions that merely shift the burden of production to
the defendant. Once the defendant meets that burden the
ultimate burden of proof is on the prosecution. The second
type of mandatory presumption entirely shifts the burden of
proof to the defendant. Finally, a “conclusive presumption”
is simply a rule of law. It is [irrebuttable] and requires the trier
of fact to find the presumed fact once the basic facts are
established.

Id. at 457 (internal citations omitted) (citing Sandstrom v. Montana, 442 U.S.
510 (1979); County Court of Ulster County v. Allen, 442 U.S. 140 (1979)).

¶35 Arizona case law has generally described evidentiary
presumptions as procedural in nature. For example, in Flores v. Tucson
Gas, Electric Light & Power Co., 54 Ariz. 460 (1939), this Court explained that
a “presumption is not evidence of anything, and only relates to a rule of law
as to which party shall first go forward and produce evidence sustaining a
matter in issue.” Id. at 463, 466 (quoting Peters v. Lohr, 124 N.W. 853, 855
(S.D. 1910)); see also Grilz, 136 Ariz. at 455 (“[T]he presumption of sanity is
a procedural device that places on the defendant the burden of producing

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evidence sufficient to raise a reasonable doubt as to sanity.”); Golonka v. Gen.
Motors Corp., 204 Ariz. 575, 590 ¶ 50 (App. 2003) (“Arizona courts generally
hold that a presumption is a procedural device that shifts the burden of
producing contrary evidence to the party opposing the presumed fact but
leaves the burden of persuasion on the proponent of the evidence.”); Ariz.
R. Evid. 301 (“In a civil case, unless a statute or these rules provide
otherwise, the party against whom a presumption is directed has the
burden of producing evidence to rebut the presumption. But this rule
does not shift the burden of persuasion, which remains on the party who
had it originally.”). Nevertheless, we must approach our analysis of
whether the presumption in the 2021 statute is procedural or substantive
“with the goal of determining, absent labels, the true function of the
statute.” See Seisinger v. Siebel, 220 Ariz. 85, 93 ¶ 31 (2009) (citing Readenour
v. Marion Power Shovel, 149 Ariz. 442, 446 (1986), for the point that “a statute
excluding evidence is not inevitably procedural; privilege statutes exclude
highly relevant evidence but are nonetheless substantive”).

¶36 Arizona’s workers’ compensation statutes contain six
requirements that a claimant must ordinarily prove to establish that an
occupational disease arises out of employment; these requirements did not
change between the 2017 statute and the 2021 statute. See § 23-901(13)(c);
§ 23-901.01(A) (2017); § 23-901.01(A) (2021).

¶37 But in cases where the firefighter relies on the statutory
presumption to establish that the cancer arose out of employment, the 2021
statute eliminated a defense that respondents previously had. Under the
2017 statute, respondents could defend the claim by bringing evidence that
the firefighter was not exposed to a known carcinogen, as defined by the
international agency for research on cancer, that is reasonably related to the
firefighter’s type of cancer. See § 23-901.01(C)(3) (2017). A successful
defense would prohibit the firefighter from using the presumption and
defeat fulfillment of the firefighter’s obligation to establish that the cancer
arose out of employment. See § 23-901.01(A)–(C) (2017). But under the
2021 statute, that defense is not allowed for respondents once the firefighter
establishes that he or she (1) passed a physical examination before
employment that did not reveal cancer, and (2) was assigned to hazardous
duty for at least five years. § 23-901.09(B) (2021). The only rebuttal
allowed is for respondents to show that “there is a specific cause of the
cancer other than an occupational exposure to a carcinogen.”
§ 23-901.09(E) (2021).

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¶38 On the other side of that same coin are the changes that the
2021 statute made to the firefighter’s burden. Under the 2021 statute, the
presumption entitling the firefighter to compensation is established with
the firefighter presenting evidence that he or she (1) “passed a physical
examination before employment and the examination did not indicate
evidence of cancer,” and (2) “was assigned to hazardous duty for at least
five years.” § 23-901.09(B) (2021). The 2021 statute entirely eliminated
the firefighter’s burden under the 2017 statute to also produce evidence that
the firefighter 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.”
See § 23-901.01(C)(3) (2017); § 23-901.09(B) (2021). While reducing the
firefighter’s burden, the 2021 statute simultaneously and relatedly
heightened respondents’ burden to rebut the presumption from “a
preponderance of the evidence” to “clear and convincing evidence that
there is a specific cause of the cancer other than an occupational exposure
to a carcinogen.” Compare § 23-901.01(F) (2017), with § 23-901.09(E) (2021).

¶39 Thus, the 2021 statute eliminated the firefighter’s burden to
prove exposure to a known carcinogen that is reasonably related to the
cancer and placed the burden on respondents to prove, by a new
heightened standard, a specific cause of the cancer other than an
occupational exposure to the carcinogen. Put differently, the 2017 statute
required firefighters to prove the cancer was job-related (that through their
work they were exposed to a known carcinogen that is reasonably related
to the cancer), whereas the 2021 statute eliminated that burden and
required respondents to prove the cancer was not job-related (that there is a
specific cause of the cancer other than an occupational exposure).
Accordingly, the “true function” of the amendments was to alter the nature
of a compensable claim by materially changing the elements needed to
establish or defend against the presumption. See Seisinger, 220 Ariz. at 93
¶ 31.

¶40 A workers’ compensation law is substantive when it “creates,
defines and regulates rights” to benefits. See Aranda, 198 Ariz. at 470 ¶ 12
(quoting Hall, 149 Ariz. at 138). The presumption in the 2021 statute
substantially defines and regulates a firefighter’s right to workers’
compensation benefits for certain enumerated diseases, infirmities, and
impairments. It does not merely “relate[] to the manner and means by

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which a right to recover is enforced” or provide “the method by which to
proceed.” See id. Accordingly, the presumption in the 2021 statute is
substantive. See Seisinger, 220 Ariz. at 95 ¶ 40 (concluding that statute
heightening the qualifications for expert witnesses testifying about
standard of practice or care in medical malpractice cases is “substantive
insofar as it requires a certain type of evidence to prove an element of [a]
tort”); Hall, 149 Ariz. at 138–39 (stating that the defense of contributory
negligence is a substantive legal right); City of Littleton v. Indus. Claim
Appeals Off., 370 P.3d 157, 165 ¶ 24, 167–68 ¶¶ 33–37 (Colo. 2016) (describing
a workers’ compensation statute with a presumption for firefighters as
substantive in nature).

¶41 The court of appeals cited two cases in support of its
conclusion that the 2021 statute contains a procedural presumption, but
they do not alter our analysis. First, in Combs v. Commissioner of Social
Security, 459 F.3d 640, 642 (6th Cir. 2006), the Sixth Circuit analyzed “a
change in a rule governing the adjudication of social security disability
benefits claims” that “required more detailed proof of disability from obese
claimants by eliminating a presumption of disability for obesity.” The
court determined that the rule change was “more procedural than
substantive in nature” because “[t]he ultimate criteria of disability
eligibility [were] not changed.” Id. at 647 (“The substantive requirements
for disability eligibility have not changed, only the way in which the agency
goes about determining whether they are present.”). Here, unlike in
Combs, the substantive requirements for benefits eligibility have changed
and the presumption in the 2021 statute is an integral and substantive part
of a firefighter’s right to benefits. That presumption does not merely
“govern the process of administrative adjudication” of the claims. See id.
at 642.

¶42 Second, in Maryland Casualty Co. v. Williams, 377 F.2d 389,
394 (5th Cir. 1967), the Fifth Circuit analyzed presumptions in a different
context—the choice of law context. There, the court noted the general rule
that presumptions are procedural in nature, but it also observed that there
are exceptions to this general rule. Id. at 394–95. One such exception is
where a presumption is created in aid of the enforcement of a substantive
right, such that “the substantive right as conferred and the presumption
created in aid of it are so inseparably bound together.” Id. at 395. Here,
the presumption in the 2021 statute was created in aid of the firefighter’s
claim for workers’ compensation benefits and is an integral part of that

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Opinion of the Court

claim.

E. The Substantive Right of Respondents Vests Upon The Filing Of The
Workers’ Compensation Claim.

¶43 We must now determine whether the substantive right of
Respondents vested, and if so when. The timing of vesting is important
because “substantive rights may not be impaired once vested.” Hall, 149
Ariz. at 140; see also San Carlos Apache Tribe, 193 Ariz. at 205 ¶ 15
(“[L]egislation may not disturb vested substantive rights by retroactively
changing the law that applies to completed events.”).

¶44 To begin, we note that this Court provided a definition of
vested rights shortly after statehood:

Rights are vested, in contradistinction to being expectant or
contingent. They are vested, when the right to enjoyment,
present or prospective, has become the property of some
particular person or persons as a present interest. They are
expectant, when they depend upon the continued existence of
the present condition of things until the happening of some
future event. They are contingent, when they are only to come
into existence on an event or condition which may not happen
or be performed until some other event may prevent their
vesting.

Steinfeld v. Nielsen, 15 Ariz. 424, 465 (1913) (quoting Pearsall v. Great N. Ry.
Co., 161 U.S. 646, 673 (1896)).

¶45 Relying on Steinfeld, this Court in Hall concluded that a right
to a defense vested when a lawsuit was filed:

We believe that a right vests only when it is actually assertable
as a legal cause of action or defense or is so substantially relied upon
that retroactive divestiture would be manifestly unjust. The
defense of contributory negligence, while a substantive right,
does not vest until a lawsuit has been filed. Prior to that time it
is merely an inchoate right which cannot be asserted until the
happening of some future event. Contributory negligence is
an affirmative defense which may not be asserted until the

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Opinion of the Court

plaintiff has filed his lawsuit. When a lawsuit is commenced the
defendant gains an immediate fixed right to assert any
substantive defense, which may not thereafter be prejudiced
by the state.

Hall, 149 Ariz. at 140 (emphasis added) (internal citations and quotation
marks omitted). The substantive right to the defense of contributory
negligence vests upon the plaintiff’s filing of a lawsuit because at that point,
the right is no longer contingent or a mere expectancy. Id. at 140–41.
“When a lawsuit is commenced the defendant gains ‘an immediate fixed
right’ to assert any substantive defense, which may not thereafter be
prejudiced by the state”—in other words, the right has become a present
interest. Id. at 140 (quoting In re Dos Cabezas Power Dist., 17 Ariz. App. 414,
418 (1972)). Before then, the assertion of the defense is contingent upon a
future event or condition (e.g., the filing of a lawsuit) that may or may not
happen. Id. Thus, the controlling date for vesting purposes is the filing
date of a lawsuit. Id. at 141 (“[A]n earlier established substantive right,
once vested by the filing of a lawsuit, may not be impaired.” (internal
quotation marks omitted) (quoting Abrams v. Horizon Corp., 137 Ariz. 73, 77
(1983))).

¶46 Indeed, “[t]he notion that rights do not vest until the
commencement of legal proceedings is not new to our jurisprudence.” Id.
at 140–41 (discussing Allen, 118 Ariz. 95; Gulf Homes, Inc. v. Gonzales, 139
Ariz. 1 (App. 1983); Bouldin, 125 Ariz. 77; Abrams, 137 Ariz. 73). And this
same rationale applies in the workers’ compensation context. By filing a
workers’ compensation claim, the claimant commences a legal proceeding
for obtaining an award of workers’ compensation benefits. See A.R.S.
§ 23-1061. The claimant must file the claim for benefits to enable the ICA
to acquire jurisdiction over the claim. § 23-1061(A). An interested party
may request a hearing before an ALJ concerning the claim, and the
procedures allow parties to discover and exchange information, including
through interrogatories, depositions, subpoenas, medical examinations,
and medical reports. See A.R.S. §§ 23-941, -1026, -1061; Ariz. Admin. Code
R20-5-114, -131, -141 to -144, -155, -666.

¶47 When a firefighter files a workers’ compensation claim,
respondents gain an immediate fixed right—that is no longer contingent or
expected—to assert application of then-existing substantive law pertaining

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to the statutory presumption. 4 Indeed, if the burden of proof and
standards by which a workers’ compensation claim is adjudicated change
while a claim is pending, this could interfere with respondents’ ability to
evaluate, investigate, respond to, and defend against the claim, including
the discovery and collection of evidence in reliance on existing law when
the claim was filed.

¶48 Vande Krol filed his workers’ compensation claim in
January 2021—eight months before the 2021 statute became effective. Like
the filing of the lawsuit in Hall, Vande Krol’s filing of the workers’
compensation claim fixed the substantive right of Respondents to assert the
applicability of the 2017 statute in effect at that time—namely, that (1) the
burden to establish a key factor of causation was on Vande Krol for him to
successfully invoke the statutory presumption, and (2) Respondents could
rebut that presumption by a preponderance of the evidence that there is a
specific cause of the cancer other than occupational exposure to a
carcinogen. This right vested when Vande Krol filed his workers’
compensation claim because the presumption and rebuttal in the 2017
statute were “actually assertable” at that time. See Hall, 149 Ariz. at 140.

¶49 Further, suddenly removing Respondents’ right to assert the
applicability of the 2017 statute in the middle of its pending case and just
days before the start of the evidentiary hearing would be manifestly unjust.
See San Carlos Apache Tribe, 193 Ariz. at 205 ¶ 15 (concluding that a vested
right is one that is “actually assertable as a legal cause of action or defense
or is so substantially relied upon that retroactive divestiture would be
manifestly unjust” (quoting Hall, 149 Ariz. at 140)).

¶50 For these reasons, we disagree with Vande Krol and amici
that the substantive right of respondents remains contingent until the
firefighter presents sufficient evidence to meet the threshold requirements
of the statutory presumption in the first place. The contingent right
becomes fixed before that point—when the workers’ compensation claim is
first filed.

4 Aranda explained that a “substantive property right in workers’
compensation payments vested once the Industrial Commission’s Findings
and Award became final,” but this was referring to a “vested right in the
claimants to receive the monthly disability benefits”—not a vested right of
respondents which is the issue before us. 198 Ariz. at 472–73 ¶ 27.

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¶51 Finally, the hearing date or date of adjudication is not when a
substantive right vests. See In re Shane B., 198 Ariz. 85, 87 ¶ 7 (2000)
(“Courts look to the date of the offense, rather than the date of adjudication,
to determine retroactivity of application.”). These dates are often in flux
during the pendency of a claim and are too arbitrary to determine when a
right vests.

F. Arizona Law Requires Application Of § 1-244 In This Case.

¶52 Our dissenting colleague contends that the 2021 statute is
“clear and unambiguous” and that it applies to claims, like Vande Krol’s,
that were pending but not yet adjudicated when the 2021 statute became
effective. Infra ¶¶ 62, 67, 71–74. The dissent points to a provision in the
2021 statute stating that the presumption “applies to both of the following”:
(1) firefighters currently in service, and (2) former firefighters who are sixty-
five or younger and diagnosed with cancer not more than fifteen years after
the firefighter’s last date of employment. § 23-901.09(C) (2021). This
text, according to the dissent, reflects “the manifest intent of the legislature”
that the 2021 statute applies to claims pending but unadjudicated as of its
effective date. Infra ¶ 74; see A.R.S. § 1-211(A). For this reason, the
dissent believes a statement of retroactivity in the 2021 statute was not
necessary for it to apply to Vande Krol’s claim. We disagree.

¶53 The general “applies to” text in the 2021 statute does not make
it clear and unambiguous that the legislature intended judges to begin
applying the 2021 statute on its effective date, even to claims that had been
filed many months before. Although the 2021 statute says “it applies” to
designated classes of firefighters, it does not say when it applies. In
drafting other statutes with “applies to” text, the legislature has made clear
when application of a new statutory provision is to begin. In particular,
the legislature has specified when a new statutory provision is intended to
apply to claims that are pending as of its effective date. See, e.g., 2012 Ariz.
Sess. Laws ch. 109, § 2(B) (2d Reg. Sess.) (“This act applies to all asbestos
claims that are filed against a successor corporation on or after the effective
date of this act and to any pending asbestos claims against a successor
corporation in which trial has not commenced as of the effective date of this act,
except that any provision of this act that would be unconstitutional if
applied retroactively shall be applied prospectively.” (emphasis added));
1997 Ariz. Sess. Laws ch. 259, § 2 (1st Reg. Sess.) (“Section 1 of this act applies

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Opinion of the Court

to all actions pending on the effective date of this act.” (emphasis added)); 1992
Ariz. Sess. Laws ch. 165, § 14 (2d Reg. Sess.) (stating the exemption “applies
to all actions now pending or brought on or before January 1, 1994” (emphasis
added)); 1976 Ariz. Sess. Laws ch. 170, § 26(2) (2d Reg. Sess.) (stating that
“[t]his act applies to any proceedings in court then pending” with certain
exceptions (emphasis added)). The legislature has made the timing of
such application clear in other contexts as well—for example, “on or after
the effective date of” the statute, “before or after” a specific date, or “on or
after” a specific date. See, e.g., A.R.S. § 8-386.01(E); A.R.S. § 12-3403; A.R.S.
§ 14-12503; A.R.S. § 14-6311; A.R.S. § 20-1231(H); A.R.S. § 33-2201; A.R.S.
§ 44-7004; A.R.S. § 47-7703. The legislature has also specified such timing
in the workers’ compensation context. See 2018 Ariz. Sess. Laws ch. 175,
§ 2 (2d Reg. Sess.) (“This act applies to workers’ compensation policies
issued or renewed on or after July 1, 2019.”). Here, one thing is clear: the
legislature did not state that the 2021 statute applied to pending workers’
compensation claims in which a hearing had not commenced as of the 2021
statute’s effective date.

¶54 The dissent correctly observes that Arizona’s Constitution
directs the legislature to enact a workers’ compensation law, see Ariz. Const.
art. 18, § 8, and that this Court has pronounced that we construe our
workers’ compensation laws “with a view of effectuating their evident
purpose of placing the burden of injury and death upon industry.” Peter
Kiewit Sons’ Co. v. Indus. Comm’n, 88 Ariz. 164, 173 (1960) (quoting Nicholson
v. Indus. Comm’n, 76 Ariz. 105, 108 (1953)). But had the legislature
intended to make the 2021 statutory presumption applicable to pending but
unadjudicated claims as of its effective date, it would have made such
timing clear, as it has before. It did not do so in the 2021 statute, and thus
we cannot ignore the legislature’s explicit direction in § 1-244 that “[n]o
statute is retroactive unless expressly declared therein.”

¶55 The dissent argues that Schuster supports a conclusion that
the 2021 statute applies to Vande Krol’s claim. In Schuster, the statute at
issue provided that a divorce may be granted when the husband and wife
“have not lived or cohabited together” for five years. 42 Ariz. at 199.
This Court determined such text “clearly refers to the past as well as to the
future” and meets the requirement of express retroactivity. Id. But
“have not lived or cohabited” (past and future tense) is different than the
2021 statute’s “applies to” text that does not clearly refer to the past. Thus,
Schuster does not support application of the 2021 statute to Vande Krol’s

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Opinion of the Court

claim.

¶56 Further, the dissent emphasizes that Vande Krol’s claim was
unadjudicated as of the effective date of the 2021 statute. But the record
in this case illuminates why using an adjudication date as the cutoff date
can present a manifest injustice. Vande Krol’s hearing was originally
scheduled to begin on August 3, 2021—nearly two months before the
effective date of the 2021 statute. Then, just two weeks before the hearing,
Vande Krol requested a 90-day continuance because he had recently
retained an attorney. The hearing was rescheduled to commence on
October 5, 2021—after the effective date of the 2021 statute. If the
adjudication date were the defining line, this would be manifestly unjust to
Respondents, who prepared their defense relying on the 2017 statute.
And if we hinged retroactivity on the serendipity of where parties are in the
litigation process, it could invite gamesmanship by respondents and
claimants in future cases.

¶57 Relatedly, the dissent argues that Respondents were on notice
of the 2021 statute’s enactment and that between the enactment and the
hearing, nothing prevented them from “reconsidering Vande Krol’s claim
or the arguments they intended to present at his hearing” and they could
have requested a continuance. Infra ¶ 87. But applying the 2021 statute
would incorrectly divest Respondents of a vested substantive right
conferred by the 2017 statute. See San Carlos Apache Tribe, 193 Ariz. at 205
¶ 15. Thus, whether they had adequate notice of the statutory change is
irrelevant. Regardless, Respondents cannot be deemed dilatory or
penalized in this manner because the hearing date was supposed to
commence before the 2021 statute’s effective date.

¶58 The dissent also points out that, in 2021, the legislature made
amendments to title 20 that generally permitted insurers to raise statewide
insurance rates and adjust premiums related to firefighter workers’
compensation claims brought under the presumption. See 2021 Ariz. Sess.
Laws ch. 229, §§ 1–3, 8 (1st Reg. Sess.). While these amendments
recognized that the cost of claims would increase with the 2021 statutory
presumption, they did not articulate when those claims would begin
increasing, and certainly did not state they would begin rising with
then–pending cases. These amendments could simply mean that insurers
may increase their rates to cover anticipated increased costs due to claims
filed after the effective date of the 2021 statute. Indeed, allowing insurers

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Opinion of the Court

to adjust rates for anticipated increases in payouts seems to be
forward-looking rather than indicating retroactivity. Nonetheless, the
legislature’s decision to allow for rate adjustments does not address the fact
that the 2021 statute substantively impacted Respondents’ ability to defend
this specific claim.

¶59 Further, the dissent minimizes Landgraf’s fundamental
unfairness principles in this case because of the different factual
circumstances before us. But the “settled expectations” at issue here are
just as pronounced as in Landgraf. 511 U.S. at 265. Requiring a
respondent to set aside the 2017 statutory presumption and proceed under
the 2021 statutory presumption mere days before the hearing would
disrupt its “settled expectations.” When a claim is filed, a respondent
relies on existing law—including the elements of the claim and defense and
the burden of proof on each party—to decide whether to accept or deny
that claim. In preparing for a hearing, a respondent relies on such existing
law to evaluate the exact questions to ask in a deposition, the particular
documents to obtain through subpoenas, and the specific information to
request in interrogatories. Reducing a firefighter’s burden to establish
causation in a way that eliminates a defense mere days before a hearing
works a fundamental injustice to a respondent. See Cravens, Dargan & Co.
v. Superior Court, 153 Ariz. 474, 476 (1987) (“Fair notice and hearing are
fundamental and elementary requirements of due process.”). Indeed, an
essential component of due process is its promise that statutes give people
fair notice of what the law is and what it demands of them. See United
States v. Davis, 588 U.S. 445, 451 (2019).

¶60 The dissent also minimizes the impact of the particular
presumption before us, arguing that “there is no such thing as a ‘rebuttable
presumption defense’ to a workers’ compensation claim.” Infra ¶ 84.
But when a firefighter invokes this statutory presumption in a workers’
compensation case, it is precisely how that firefighter establishes causation.
In other words, it is causation. And most certainly, parties may—and
frequently do—defend legal claims based on lack of causation.

CONCLUSION

¶61 We hold that the 2017 statute applies to Vande Krol’s
workers’ compensation claim. We vacate the court of appeals’ opinion.
Because the court of appeals concluded that the 2021 statute applied, it did

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Opinion of the Court

“not address whether the ALJ correctly interpreted the 2017 statute.”
Vande Krol, 255 Ariz. at 505 ¶ 43. We did not take review of that issue and
therefore remand to the court of appeals to determine whether the ALJ
correctly interpreted and applied the 2017 statute to Vande Krol’s claim.

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JUSTICE MONTGOMERY, DISSENTING

MONTGOMERY, J., dissenting.

¶62 The clear and unambiguous terms of A.R.S. § 23-901.09, as
amended in 2021, apply to Vande Krol’s claim for compensation, and any
requirement for a statement of retroactivity is unwarranted given the
prescriptions of A.R.S. § 1-211, the nature of the Workers’ Compensation
Act (“WCA”), and article 18, section 8 of the Arizona Constitution. I
therefore respectfully dissent.

TEXT OF § 23-901.09

¶63 “We ‘determine the plain meaning of the words the
legislature chose to use, viewed in their broader statutory context.’” In re
Drummond, 257 Ariz. 15, 18 ¶ 5 (2024) (quoting Columbus Life Ins. Co. v.
Wilmington Tr., N.A., 255 Ariz. 382, 385 ¶ 11 (2023)). When a statute’s plain
language is unambiguous it is dispositive, id., and “we do not resort to other
canons of statutory interpretation,” Stambaugh v. Killian, 242 Ariz. 508, 511
¶ 17 (2017).

¶64 As amended in 2021, § 23-901.09(A)(1) provides: “Any
disease, infirmity or impairment of a firefighter’s . . . health that is caused
by brain . . . cancer . . . and that results in disability or death is presumed to
be an occupational disease . . . and is deemed to arise out of employment.”
§ 23-901.09(A)(1) (2021) (the “Presumption”). The Presumption applies if
the two conditions set forth in § 23-901.09(B) are met: the firefighter must
have (1) “passed a physical examination before employment and the
examination did not indicate evidence of cancer”; and (2) been “assigned to
hazardous duty for at least five years.” And § 23-901.09(C) specifies that
the Presumption applies to firefighters who are: 1) currently in service, and
2) aged sixty-five or younger and diagnosed with brain cancer not more
than fifteen years after their last date of employment as a firefighter.
Lastly, the 2021 amendments (“Amendments”) also eliminated a third
condition that the firefighter has been “exposed to a known carcinogen,”
provided notice of the exposure, and that “the carcinogen [wa]s reasonably
related to the cancer.” § 23-901.01(C)(3) (2017).

¶65 Relatedly, the Amendments changed the standard of proof
required to rebut the Presumption. Enacted in 2017—sixteen years after
the Presumption was first enacted as § 23-901.01(B) (2001)—the legislature

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JUSTICE MONTGOMERY, DISSENTING

initially permitted the Presumption to “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.” § 23-901.01(F) (2017). Clear and
convincing evidence is now required. § 23-901.09(E) (2021).

¶66 The Amendments also made changes to sections of title 20
that permitted insurers to raise statewide insurance rates and adjust
premiums related to firefighter workers’ compensation claims brought
under the Presumption. See 2021 Ariz. Sess. Laws ch. 229, §§ 1–3 (1st Reg.
Sess.). Furthermore, the legislature specifically noted that it intended the
changes to A.R.S. § 20-359 to “authorize workers’ compensation insurers
covering firefighters . . . to modify previously filed premium rates to cover
anticipated increased claims costs resulting from the new coverages to be afforded
those insureds pursuant to section 23–901.09, Arizona Revised Statutes, as
added by this act.” Id. § 8 (emphasis added). Because the class of
firefighters “insured pursuant to § 23-901.09” is only limited by the
requirements of § 23-901.09(B), it is incongruent for the reasons that follow
to conclude that the legislature did not expect § 23-901.09 to be applied to
insureds such as Vande Krol—without regard to when a claim was filed.

¶67 There is nothing in the text of the amended statutory
framework, or in any of the other provisions of the Amendments, that
conditions application of the Presumption based on the date of an injury or
when a compensation claim is filed. The only limitation based on timing
is that the firefighter must be “diagnosed with a brain cancer not more than
fifteen years after the firefighter’s last date of employment.” 5 And even
though the 2021 statute may relate to antecedent facts or conditions (i.e.,
age, date of diagnosis, last date of employment), this does not require
retroactive application. See Tower Plaza Invs. Ltd. v. DeWitt, 109 Ariz. 248,
250 (1973) (“[A] statute is not retroactive in application simply because it
may relate to antecedent facts.”); see also Cohen v. State, 121 Ariz. 6, 9 (1978)
(“[L]aws are not retrospective by their mere relation to antecedent
conditions.”); Landgraf v. USI Film Prods., 511 U.S. 244, 273 (1994) (“When

5 Of note is the fact that the stated purpose for including the fifteen-year
diagnosis limitation in 2017 was to “[l]imit application of new and existing
cancer presumptions to conditions diagnosed within 15 years of a
firefighter’s or peace officer’s last date of employment.” See Ariz. State
Senate Fact Sheet for H.B. 2161, 53d Leg., 1st Reg. Sess. (May 25, 2017)
(emphasis added). No such concern is expressed in the Amendments.

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JUSTICE MONTGOMERY, DISSENTING

the intervening statute authorizes or affects the propriety of prospective
relief, application of the new provision is not retroactive.”). Additionally,
we have long recognized that workers’ compensation matters are
adjudicated in a legislatively established forum that has “the right to
determine questions of fact and to apply the existing law thereto in matters
within the jurisdiction conferred upon it by the [WCA].” Fed. Mut. Liab.
Ins. Co. v. Indus. Comm’n, 31 Ariz. 224, 228 (1926) (emphasis added).
Simply put, there is nothing to preclude application of the Presumption to
Vande Krol’s claim that was unadjudicated as of the effective date of the
Amendments.

¶68 This would not be the first time our Court has recognized that
a statute applies “to situations existing when it was passed.” Schuster v.
Schuster, 42 Ariz. 190, 199 (1933). For example, in Schuster we held that a
statute that allowed a couple to obtain a divorce if they had not lived
together for five years encompassed the time a couple had not lived
together before the statute was passed. Id. at 192, 199. Despite the statute
not containing an express statement of retroactivity, we dismissed the
argument that the five-year period of separation must take place after the
statute was enacted because the statute was meant to apply to situations
already existing upon enactment. Id. at 199.

¶69 In this regard, the text of § 23-901.09(B) is due more
consideration than the majority gives it. See supra ¶ 55. As further
discussed below concerning issues of fairness, since 2001, the Presumption
has referred to the past and the future by permitting a claim for an injury
that occurred during a past hazardous assignment but was not diagnosed
for as many as fifteen years after a last date of employment.

¶70 Conversely, in cases like Aranda v. Industrial Commission, 198
Ariz. 467, 470 ¶ 10 (2000), and City of Tucson v. Clear Channel Outdoor, Inc.,
209 Ariz. 544, 547–48 ¶¶ 11–12 (2005), the Court was squarely presented
with issues regarding retroactivity, though neither case applied A.R.S.
§ 1-244 to the detriment of the party aggrieved. In Aranda, the Court
considered a law that suspended workers’ compensation benefits for
incarcerated adults or juveniles. 198 Ariz. at 469 ¶ 4. Retroactivity was
thus at issue because the Court had to consider “the applicability of [the
statute] to pre-determined, final compensation awards.” Id. at 470 ¶ 9.
Additionally, the legislature provided for an effective date later than what

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JUSTICE MONTGOMERY, DISSENTING

would otherwise have been in place. Id. ¶ 10. Here, however, the
Amendments were enacted with an effective date before there was any
adjudication of Vande Krol’s compensation claim and without any intent,
implicit or otherwise, to affect adjudicated claims.

¶71 In Clear Channel, the facts and law required the Court to
consider the retroactive application of a statute because it did not address
whether a statute of limitations period applied to existing claims at the time
of its enactment. 209 Ariz. at 547 ¶ 10 (reviewing A.R.S. § 9-462.02(C),
which established a statute of limitations for municipal actions in zoning
matters regarding nonconforming billboards). If the statute of limitations
applied, the new law would preclude adjudication of such claims. Id.
¶¶ 9–10. Accordingly, this Court declined to read the statutory provisions
as applying to claims filed prior to the statute’s effective date. Id. at 548–50
¶¶ 15–19. Here, we are faced with whether the Amendments apply to a
claim prior to any adjudication.

¶72 Despite the clear import of the text of § 23-901.09 establishing
that the Amendments apply to existing claims not yet adjudicated at the
time the Amendments were enacted, the majority nevertheless invokes
§ 1-244 and the related procedural/substantive analysis to require a
retroactivity statement for application of the Presumption to Vande Krol’s
compensation claim. This is unwarranted and contrary to Arizona law.

A.R.S. § 1-211 PRECLUDES RECOURSE TO § 1-244

¶73 Section 1-244 provides that “[n]o statute is retroactive unless
expressly declared therein.” In addition to the fact that § 23-901.09 is not
being retroactively applied in this case, reliance on § 1-244 is unwarranted
because of § 1-211. See supra ¶ 52.

¶74 Section 1-211(A) directs that: “The rules and the definitions
set forth in this chapter shall be observed in the construction of the laws of
the state unless such construction would be inconsistent with the manifest intent
of the legislature.” (Emphasis added.) See also State v. Allred, 102 Ariz. 102,
103 (1967) (discussing § 1-211 and stating that “[a]ll other rules of statutory
construction are secondary and are to be used only to aid in the proper
application of [§ 1-211]”). As set forth above, the manifest intent of the
legislature, as reflected in the plain meaning of the Amendments, renders

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§ 23-901.09 applicable to workers’ compensation claims pending as of the
effective date. Applying § 1-244 as the majority does results in a
construction of § 23-901.09 that is inconsistent with the manifest intent of
the legislature and contrary to § 1-211. Additionally, § 1-211(B) requires
that “[s]tatutes shall be liberally construed to effect their objects and to
promote justice.” 6 And interpreting the Amendments to apply § 23-901.09
to Vande Krol’s compensation claim comports with the WCA.

THE WCA AND THE CONSTITUTION

¶75 Delegates to the Arizona Constitutional Convention in 1910
expressly sought to redress the plight of injured workers. See Grammatico
v. Indus. Comm’n, 211 Ariz. 67, 70–71 ¶¶ 10–17 (2005) (discussing history
and development of workers’ compensation in Arizona); see also The Records
of the Arizona Constitutional Convention of 1910, at 881–87 (John S. Goff ed.,
1991); John D. Leshy, The Making of the Arizona Constitution, 20 Ariz. St. L.J.
1, 92–95 (1988); J. Wagoner, Arizona Territory 1863–1912: A Political History
460–64 (1970). And in 1925 the people of Arizona amended article 18,
section 8 to direct the legislature to extend the benefits of the WCA to public
employees and enact further reforms “which provided the most generous
state compensation benefits nationally for that era.” Sandra A. Day, How
Did We Get Here? The Development of Arizona Workers’ Compensation Law, 36
Ariz. Att’y 10, 11 (Apr. 2000). “Any conflict between an employer and
employee was to be resolved in an informal administrative setting designed
to ensure the quickest and most direct route to any required
decision-making.” Id. at 45.

¶76 Furthermore, we read the provisions of the WCA in light of
article 18, section 8 of the Arizona Constitution. See Roberts v. Spray, 71
Ariz. 60, 70 (1950) (noting that when statutes and the Constitution “relate
to the same subject, like statutes in pari materia, they are to be construed
together” (quoting Cooper Mfg. Co. v. Ferguson, 113 U.S. 727, 733 (1885))).
And “[i]n construing [the WCA and article 18, section 8] there are certain

6 In the context of the WCA, “[a] liberal construction is not synonymous
with a generous interpretation . . . . It is not in the power of this court to
‘give’ but it definitely is its duty to interpret the law to insure that what the
law gives is not withheld.” Nicholson v. Indus. Comm’n, 76 Ariz. 105, 109
(1953).

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principles which we must always keep before us: They must be considered
as a whole so as to effectuate the purpose of the legislature and of the people
as set forth in the constitution and the Act, and, so far as statutes are
concerned, are to be construed liberally and remedially.” Pressley v. Indus.
Comm’n, 73 Ariz. 22, 28 (1951); see also Atkinson, Kier Bros., Spicer Co. v. Indus.
Comm’n, 35 Ariz. 48, 50, 52–54 (1929) (discussing enactment of the 1925
amendment extending compensation under the then-effective version of
the WCA to a broader class of workers); Marquez v. Rapid Harvest Co., 1 Ariz.
App. 562, 565 (1965) (“We must read the Act in the light of the Constitution
and adopt the construction which harmonizes with constitutional
provisions.”). As relevant here, article 18, section 8 of the constitution
provides that:

The legislature shall enact a workmen’s compensation law
applicable to workmen engaged in manual or mechanical
labor in all public employment whether of the state, or any
political subdivision or municipality thereof as may be
defined by law . . . by which compensation shall be required
to be paid to any such workman, in case of his injury and to
his dependents, as defined by law, in case of his death, by his
employer, if in the course of such employment personal injury
to or death of any such workman from any accident arising
out of and in the course of, such employment, is caused in
whole, or in part, or is contributed to, by a necessary risk or
danger of such employment, or a necessary risk or danger
inherent in the nature thereof . . . and, provided further, in
order to assure and make certain a just and humane
compensation law in the state of Arizona, for the relief and
protection of such workmen, their widows, children or
dependents, as defined by law, from the burdensome,
expensive and litigious remedies for injuries to or death of
such workmen, now existing in the state of Arizona, and
producing uncertain and unequal compensation therefor,
such employee, engaged in such private employment, may
exercise the option to settle for compensation by failing to
reject the provisions of such workmen’s compensation law
prior to the injury . . . .

¶77 With respect to our jurisprudence concerning the WCA, we
have been just as clear as the text of § 23-901.09: “We believe the decisions,

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English and American, are agreed that the compensation laws should be
given a liberal construction, with a view of effectuating their evident
purpose of placing the burden of injury and death upon industry, and we
are in entire accord with that construction.” Ocean Accident & Guarantee
Corp. v. Indus. Comm’n, 32 Ariz. 265, 271–72 (1927); see also Dunn v. Indus.
Comm’n, 177 Ariz. 190, 194 (1994) (“The workers’ compensation laws should
be construed with a view toward advancing the purpose of placing the
burden of injury and death upon industry.”). Thus, “[n]o rule is to be
adopted and applied which will make ineffectual the evident purpose of
the law that those covered by the act who are injured while engaged in
industrial work are to be compensated.” Goodyear Aircraft Corp. v. Indus.
Comm’n, 62 Ariz. 398, 402 (1945); see also Carbajal v. Indus. Comm’n, 223 Ariz.
1, 3 ¶ 10 (2009) (“When construing workers’ compensation statutes, we
favor interpretations that make the claimant whole.”); Unigard Mut. Ins. Co.
v. Martin, 134 Ariz. 144, 147 (App. 1982) (“In workmen’s compensation
proceedings, the objective is to have industry fully bear its share of human
injury as a cost of doing business, and the compensation law is liberally
construed to achieve that objective.”).

¶78 Thus, our constitution, statutes, and our own precedent
recognize that the burden under the workers’ compensation scheme is on
the employer. See Ocean Accident, 32 Ariz. at 272 (explaining that the
workers’ compensation scheme “requir[es] the employer to
compensate . . . injuries that arise out of and in the course of the
employment”). Applying § 23-901.09 to Vande Krol’s claim is entirely
consistent with the overall function of workers’ compensation legislation.

OTHER RETROACTIVITY CONCERNS

¶79 The majority’s analysis echoes Respondents’ arguments that
the Amendments impermissibly “diminish[] an employer’s right to defend
against” a claim that arose, but was not adjudicated, before the
Amendments being enacted, while eliminating the need for an employee to
prove that an injury “arose out of and was incurred during the course and
scope of employment.” In addition to addressing Respondents’
arguments, the majority also considers whether applying § 23-901.09 as
amended to Vande Krol’s claim would comport with principles of fairness
or constitute a manifest injustice.

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¶80 The majority initially relies on Landgraf to address these
concerns with a purportedly retroactive application of § 23-901.09. But
rather than support the majority’s analysis and conclusion, Landgraf
illustrates why retroactivity principles are not at issue here concerning
fairness. Additionally, Hall v. A.N.R. Freight Sys., Inc., 149 Ariz. 130 (1986),
demonstrates that this case neither implicates Respondents’ ability to
mount a defense nor results in a manifest injustice. 7

A. Elementary Considerations Of Fairness.

¶81 Landgraf addressed whether certain statutory provisions
applied to a matter “that was pending on appeal” when Congress enacted
the legislation in question. Landgraf, 511 U.S. at 247. After discussing
differing canons of construction that could be applicable in the case, 8 the
Court discussed the point that “[e]lementary considerations of fairness
dictate that individuals should have an opportunity to know what the law
is and to conform their conduct accordingly; settled expectations should not
be lightly disrupted.” Id. at 264–65. We must, though, consider this
proposition carefully in the context of the WCA.

¶82 In the context of the WCA and workers’ compensation,
“settled expectations” are not even remotely similar to those in Landgraf
such that considerations of fairness implicate the presumption against
retroactivity. In Landgraf, the concern was the increase in damages a
plaintiff could seek due to a discriminatory discharge by an employer. Id.
at 253–54. In addition to backpay, the amendments in question permitted
compensatory damages and punitive damages under certain
circumstances. Id. The Court characterized the changes as “effect[ing] a

7 Additionally, neither Hall nor any other Arizona cases relied on by the
majority acknowledge § 1-211 nor do they invoke § 1-244 to the detriment
of an employee under the WCA.
8 The first canon provides that “a court is to apply the law in effect at the

time it renders its decision.” Landgraf, 511 U.S. at 264 (quoting Bradley v.
Sch. Bd. of Richmond, 416 U.S. 696, 711 (1974)). “The second is the axiom
that ‘[r]etroactivity is not favored in the law,’ and its interpretive corollary
that ‘congressional enactments and administrative rules will not be
construed to have retroactive effect unless their language requires this
result.’” Id. (quoting Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208
(1988)).

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major expansion in the relief available to victims of employment
discrimination.” Id. at 255.

¶83 With respect to the WCA and § 23-901.09, firefighter
employers are already on notice that past conduct of which they were
unaware may later result in an award of compensation. Indeed,
§ 23-901.09(C)(2)’s allowance of claims for brain cancer diagnoses arising
within fifteen years following employment makes it clear that there are
potential activities that may have taken place early in a firefighter’s career
that an employer had no knowledge of and cannot address that will result
in a compensation award for brain cancer in the future. This limitation
reflects the settled understanding that compensation for work-related
injuries in the context of the inherently risky and hazardous occupation of
firefighting may not arise from circumstances that the employer had
specific advance notice of to guard against in the first place. It is the very
nature of the WCA to require that “industry must bear the burden . . . . This
was the intent and the purpose of sections 3–8, art. 18, of our Constitution.”
Oatman United Gold Min. Co. v. Pebley, 31 Ariz. 27, 32 (1926) (emphasis
added).

B. No Denial Of The Right To A Defense.

¶84 The majority errs in relying on the changes to the
Presumption to conclude that the Amendments divested Respondents of a
vested right. As noted by the majority, Hall stands for the proposition
“that a right vests only when it is actually assertable as a legal cause of action
or defense or is so substantially relied upon that retroactive divestiture would
be manifestly unjust.” 149 Ariz. at 140 (emphasis added). But, unlike the
contributory negligence defense under review in Hall, this case involves
changes to a rebuttable presumption under the WCA that did not eliminate
a defense. And there is no such thing as a “rebuttable presumption
defense” to a workers’ compensation claim. Cf. Obregon v. Indus. Comm’n,
217 Ariz. 612, 613 ¶ 5 (App. 2008) (reviewing a suspended benefits claim
due to employee’s criminal conviction for fraudulently seeking to obtain
compensation benefits pursuant to A.R.S. § 23-1028); Glodo v. Indus.
Comm’n, 191 Ariz. 259, 261 (App. 1997) (reviewing whether claim was
properly denied pursuant to A.R.S. § 23-1021(A) because injury was
“purposefully self-inflicted”); see also 100A C.J.S. Workers’ Compensation
§ 1012 (2024) (“Among the affirmative defenses that must be raised in a

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VANDE KROL V. SUPERSTITION/BENCHMARK
JUSTICE MONTGOMERY, DISSENTING

workers’ compensation case are waiver, estoppel, a claim of setoff, fraud,
intoxication, and abandonment of treatment.”); 3 Modern Workers
Compensation § 305:7 (2024) (“An employee claiming workers’
compensation benefits generally has the burden of proving that at the time
of the injury giving rise to his or her claim, he or she was an employee.”).

¶85 Here, Respondents defended against Vande Krol’s claim by
arguing that he was unable to prove that his brain cancer arose out of and
in the course of his employment as a firefighter. The argument further
rests on the assertion that Vande Krol cannot establish the requirements for
the 2017 version of the Presumption. With respect to the Amendments,
the Presumption is just as rebuttable as it was under the lower standard of
proof in 2017 and Respondents can still argue causation. See supra ¶ 60.
Accordingly, the amendments did not take away a “defense” from
Respondents or any other substantive right.

C. No Manifest Injustice.

¶86 There is also no “manifest injustice” to Respondents in
applying the Presumption to Vande Krol’s pending claim. Hall, 149 Ariz.
at 140. Given the nature of the WCA, article 18, section 8, and the
expressed intent of the legislature to address “anticipated increased claims
costs resulting from new coverages to be afforded those insureds pursuant
to section 23-901.09,” the workers’ compensation system is functioning as
expected. See Magma Copper Co. v. Gonzales, 62 Ariz. 9, 13 (1944) (“It should
be remembered that the [workers’ compensation] law does not rest upon
fault but upon the thesis that the occupation or business or art should bear
the human wear and tear incident to its prosecution at least to a large
extent.”); Marriott Corp. v. Indus. Comm’n, 147 Ariz. 116, 121 (1985) (“[It is]
the long held view that the purpose of the workers’ compensation system
is to dispense with, as much as possible, the litigation between employer
and employee and to place upon industry the burden of compensation.
The protection of a workers’ compensation system is constitutionally
mandated.” (internal citation and footnote omitted)).

¶87 Lastly, Respondents were on notice as of the enactment of the
Amendments that claims involving brain cancer were going to be easier for
firefighters to establish. Cf. Wilco Aviation v. Garfield, 123 Ariz. 360, 362
(App. 1979) (“Here, the enactment of A.R.S. § 10-095 places appellees upon

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VANDE KROL V. SUPERSTITION/BENCHMARK
JUSTICE MONTGOMERY, DISSENTING

notice that if they wish to reinstate their corporate charter, they had best do
so before the new statute becomes effective.”). Between the time of
enactment and the hearing, nothing in the record indicates Respondents
were prevented from reconsidering Vande Krol’s claim or the arguments
they intended to present at his hearing. Likewise, there is nothing in the
record that indicates Respondents could not have requested their own
continuance. 9 And, as noted, the legislature permitted insurance carriers
to adjust premiums based on changes to § 23-901.09, expressly
acknowledging the possibility of increasing claim costs. Thus, the fact that
§ 23-901.09(A)(1) operates to make it easier for Vande Krol to receive
compensation is consistent with the WCA and does not result in a
disadvantage or unfairness to Respondents let alone any manifest injustice
for retroactivity purposes.

CONCLUSION

¶88 Section 23-901.09, like all legislation born from article 18,
section 8, necessarily operates with the intent and purpose to compensate
as many employees as are qualified under the WCA. Moreover, this
interpretation and application of § 23-901.09 advances the remedial
purpose of the WCA. Thus, consistent with § 1-211, we cannot ignore the
fact that the Amendments contain provisions that necessarily cover
firefighters whose injuries arose under conditions existing prior to the
effective date of the Amendments, as well as the fact that the legislature
made allowances for the expected increase in claims costs that an award for
Vande Krol entered after the effective date would necessarily fall within.

¶89 Accordingly, I would affirm the court of appeals’ conclusion,
albeit with different reasoning, and set aside the ALJ’s decision.

9 And to be fair to Vande Krol, the continuance he requested was for his
recently retained attorney to be prepared for a contested hearing at which
Respondents were represented by counsel.

34