                                IN THE

    SUPREME COURT OF THE STATE OF ARIZONA
                             IN DIVISION

                         GILBERT AGUIRRE, JR.,
                              Petitioner,

                                   v.

               THE INDUSTRIAL COMMISSION OF ARIZONA,
                             Respondent,

                          CITY OF GOODYEAR,
                          Respondent Employer,

            COPPERPOINT AMERICAN INSURANCE COMPANY,
                        Respondent Carrier.


                          No. CV-19-0001-PR
                         Filed August 15, 2019


       Special Action from the Industrial Commission of Arizona
     The Honorable Robert F. Retzer, Jr., Administrative Law Judge
                           No. 20152-040228
                         AWARD SET ASIDE

             Opinion of the Court of Appeals, Division One
                       245 Ariz. 587 (App. 2018)
             AFFIRMED IN PART, VACATED IN PART



COUNSEL:

Thomas C. Whitley (argued), Nicholas C. Whitley, Taylor & Associates,
P.L.L.C., Phoenix, Attorneys for Gilbert Aguirre, Jr.

Gaetano J. Testini, Los Abogados Hispanic Bar Association, Inc., Phoenix,
Attorney for Industrial Commission of Arizona
             AGUIRRE V. ICA/CITY OF GOODYEAR, ET AL.
                        Opinion of the Court

Sharon M. Hensley, Mark A. Kendall (argued), CopperPoint American
Insurance Company, Phoenix, Attorneys for City of Goodyear and
CopperPoint American Insurance Company

Toby Zimbalist, Phoenix, Attorney for Amicus Curiae Professional
Firefighters of Arizona

JUSTICE GOULD authored the opinion of the Court, in which VICE CHIEF
JUSTICE TIMMER and JUSTICES BOLICK, LOPEZ, and BALES (RETIRED)
joined.

JUSTICE GOULD, opinion of the Court:

¶1             In Post v. Industrial Commission of Arizona, we held that when
an administrative law judge (“ALJ”) fails to make findings on all material
issues necessary to resolve the case, the award is legally deficient and must
be set aside. 160 Ariz. 4, 7–9 (1989). Today, we further hold that a claimant
does not waive appellate review of the legal sufficiency of findings before
the Industrial Commission of Arizona (“ICA”).

                                     I.

¶2             Gilbert Aguirre has worked as a firefighter for the City of
Goodyear (“City”) since August 2007. As a firefighter, he has responded to
several fires, including a large fire in a cabinet factory that contained
“paints, thinners, [and] lacquers,” a fire in an airport hangar with burning
jet fuel, a house fire with chlorine stored in the attic, and several burning
methamphetamine labs. In May 2015, Aguirre was diagnosed with chronic
myeloid leukemia (“CML”). He filed a workers’ compensation claim
alleging that his CML was caused by the toxic chemicals he had been
exposed to while fighting fires for the City.

¶3           After Aguirre’s claim was denied by the City’s workers’
compensation carrier, CopperPoint American Insurance Company
(“CopperPoint”), he requested a hearing before the ICA. At the hearing,
Aguirre asserted a claim for benefits pursuant to A.R.S. § 23-901.01. 1 Under

1     The parties cite to the former version of this statute, which was
amended in 2017. See 2017 Ariz. Sess. Laws, ch. 318, § 1 (1st Reg. Sess.). In
the current version of the statute, some of the sections have been


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              AGUIRRE V. ICA/CITY OF GOODYEAR, ET AL.
                         Opinion of the Court

that statute, a firefighter diagnosed with Aguirre’s type of cancer is entitled
to a presumption that he is suffering from a compensable occupational
disease upon showing that he: (1) “passed a physical examination before
employment and the examination did not indicate evidence of cancer,” (2)
“was assigned to hazardous duty for at least five years,” and (3) “was
exposed to a known carcinogen . . . and the carcinogen is reasonably related
to the cancer.” § 23-901.01(B)(1), (C)(1)–(3); see also Hahn v. Indus. Comm’n,
227 Ariz. 72, 75 ¶ 12 (App. 2011) (holding that in making a claim for
occupational diseases under § 23-901.01, a claimant must “demonstrate that
at least one carcinogen he was exposed to during hazardous duty is
reasonably related” to his medical condition).

¶4            The testimony at the hearing focused primarily on whether
Aguirre was exposed to any carcinogens that were “reasonably related” to
his CML. See § 23-901.01(C)(3). Marc Wilkenfeld, M.D., board-certified in
occupational medicine, authored a report and testified on behalf of Aguirre.
Wilkenfeld testified that Aguirre had repeated exposure to the carcinogens
present at the fires, often without proper protective equipment. Wilkenfeld
further concluded, based on his review of peer-reviewed studies, medical
literature, exposure records, and Aguirre’s medical history, that Aguirre
developed CML “as a result of the exposure to carcinogens he experienced
during his work as a firefighter.”

¶5            Jason Salganick, M.D., board-certified in medical oncology,
prepared a report and testified on behalf of CopperPoint. Salganick
testified that although firefighters are generally exposed to potential
carcinogens, he could not determine if Aguirre was exposed to a known
carcinogen because his records did not identify which specific toxins were
present at particular fires, what protective gear Aguirre wore, or how long
he spent at each fire. Salganick further stated that the medical literature
only supported a possible connection between Aguirre’s work as a
firefighter and CML. Salganick testified that, in his opinion, he could not
conclude whether Aguirre’s CML was “causally related to his work as a
firefighter.”

¶6            After the hearing, the ALJ denied Aguirre’s claim for benefits.
In his decision, the ALJ briefly summarized the testimony and noted that


renumbered. Because no material changes were enacted, for ease of
reference we refer to the current version of the statute.
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              AGUIRRE V. ICA/CITY OF GOODYEAR, ET AL.
                         Opinion of the Court

“[t]his is a claim under the Occupational Disease Statute § 23-901.01 (A) and
(B).” The ALJ then issued the following ruling:

       After a careful review of all the evidence, the undersigned is
       more persuaded by [CopperPoint’s] Legal Memorandum and
       therefore, concludes [that Aguirre] has failed to carry his
       burden of proving by a reasonable preponderance of the
       evidence that he sustained a work related injury . . . .

¶7            Aguirre filed a request for administrative review of the ALJ’s
decision pursuant to A.R.S. § 23-943. In his request, Aguirre did not
specifically challenge the ALJ’s failure to make material findings as
required by Post. See 160 Ariz. at 7–9. The ALJ summarily affirmed the
award.

¶8            Following a petition for special action, the court of appeals set
aside the award based on “the absence of legally-sufficient findings,” and
held that “Post’s requirement that an ALJ make findings sufficient to permit
meaningful judicial review[] applies even if a party fails to raise that specific
issue in a request for review.” Aguirre v. Indus. Comm’n, 245 Ariz. 587, 592
¶ 20, 594 ¶ 31 (App. 2018) (citation omitted).

¶9           Because this case involves an issue of statewide importance,
we granted review. We have jurisdiction pursuant to article 6, section 5(3)
of the Arizona Constitution.

                                       II.

¶10          CopperPoint contends that because Aguirre did not challenge
the lack of material findings required by Post in his request for review, he
has waived appellate review on that issue. For the reasons discussed below,
we disagree.

                                       A.

¶11           In Post, the claimant requested a hearing to reopen his claim
for benefits. 160 Ariz. at 5. The claim required the ALJ to resolve two
material issues: (1) whether the claimant was suffering from a new
condition, and (2) whether the original work-related accident was a cause
of his new condition. Id. at 6–7. At the hearing, the parties presented
conflicting medical expert testimony on both issues. Id. However, in his
decision, the ALJ made no findings resolving the conflicting medical

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              AGUIRRE V. ICA/CITY OF GOODYEAR, ET AL.
                         Opinion of the Court

testimony, nor did he make any findings regarding the material issues in
the case. Id. at 8. Rather, he “merely stated the ultimate conclusion that the
evidence did not establish that [the claimant] had a new condition”
necessary to reopen his claim. Id. at 6.

¶12           We set aside the ALJ’s award as legally deficient because it
contained “no findings at all.” Id. at 8–9. We stated that under Arizona
law, the ALJ was required to make findings of fact and conclusions of law.
Id. at 7 & n.4; see A.R.S. § 41-1063 (stating that final decisions in
administrative cases must “include findings of fact and conclusions of law,
separately stated,” and that each finding of fact must contain an “explicit
statement of the underlying facts supporting the findings”). However,
because the ALJ did not comply with his statutory duty, any meaningful
appellate review was not possible because there was no basis to examine
“the factual support for, or the legal propriety of” the award. Post, 160 Ariz.
at 7. Thus, we held that to permit appellate review, an ALJ must fulfill his
statutory responsibility and make specific findings on all material issues
and resolve all material “conflicts in the evidence, especially when the
conflicts involve expert medical testimony.” Id. at 8; see also Douglas Auto &
Equip. v. Indus. Comm’n, 202 Ariz. 345, 347 ¶ 9 (2002) (holding that an ALJ’s
findings “must be specific, not only to encourage judges to consider their
conclusions carefully, but also to permit meaningful judicial review”); Perry
v. Indus. Comm’n, 112 Ariz. 397, 398 (1975) (stating an ALJ in a workers’
compensation case must resolve conflicts involving expert medical
testimony).

¶13           Here, because the ALJ made no findings, the award is legally
deficient and must be set aside. See A.R.S. § 23-951(D) (stating that on
review, an appellate court may only affirm or set aside an award).
Although the ALJ generally cited the occupational disease statute, he made
none of the findings required under § 23-901.01(B) and (C). Specifically, the
award neither resolves the material issue of whether Aguirre “was exposed
to a known carcinogen . . . and the carcinogen is reasonably related to” his
CML, nor does it resolve the conflicting opinions of Drs. Wilkenfeld and
Salganick on this material issue. See § 23-901.01(C)(3).

                                      B.

¶14           CopperPoint claims, however, that because Aguirre did not
identify the Post issue in his request for review, he has waived it on appeal.
In support of this claim, CopperPoint relies on Stephens v. Industrial

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              AGUIRRE V. ICA/CITY OF GOODYEAR, ET AL.
                         Opinion of the Court

Commission, 114 Ariz. 92 (App. 1977). There, the court of appeals held that
apart from the sufficiency of the evidence or “matters which are extant in
the record,” a party waives any issue not raised in its request for review. Id.
at 95.

¶15             The waiver rule set forth in Stephens does not apply in this
case. Here, the ALJ made no material findings at all. Thus, because he
failed to fulfill his statutory duty, we cannot, as a practical matter, review
his decision on appeal. See supra ¶ 12. As a result, the award is legally
deficient and must be set aside regardless of whether the claimant has
raised the issue. See § 41-1063; Post, 160 Ariz. at 7–8; see also Cammeron v.
Indus. Comm’n, 98 Ariz. 366, 370–71 (1965) (setting aside award where ALJ
failed to make necessary material findings as to whether claimant’s mental
disability was caused by the accident); Hatfield v. Indus. Comm’n, 89 Ariz.
285, 288–89 (1961) (setting aside award because ALJ made no findings as to
material issue of whether claimant’s accident and physical injury caused
her mental illness); Garcia v. Indus. Comm’n, 26 Ariz. App. 313, 315 (1976)
(setting aside award where ALJ made no findings on the material issues in
the case, including necessary findings resolving the conflicting testimony
of the medical witnesses).

¶16             CopperPoint’s reliance on Teller v. Industrial Commission, 179
Ariz. 367 (App. 1994), and Spielman v. Industrial Commission, 163 Ariz. 493
(App. 1989), is misplaced. Neither case addressed an award that lacked
material findings. Rather, in both cases the court determined that the
claimant, by failing to make a request for additional findings, waived that
issue on appeal. See Teller, 179 Ariz. at 371; Spielman, 163 Ariz. at 495–97;
see also Releford v. Indus. Comm’n, 120 Ariz. 75, 77–78 (App. 1978) (holding
that the claimant, by failing to challenge the ALJ’s finding regarding
medical causation in his request for review, waived his claim that the
finding was erroneous on appeal).

                              CONCLUSION

¶17         For the foregoing reasons, we set aside the ALJ’s award.
Further, we affirm the court of appeals decision in part but vacate
paragraphs 16–18.




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