Aguirre v. The Industrial Commission of Arizona, 081519 AZSC, CV-19-0001-PR

Docket Nº:CV-19-0001-PR
Opinion Judge:GOULD JUSTICE
Party Name:Gilbert Aguirre, Jr., Petitioner, v. The Industrial Commission of Arizona, Respondent, City of Goodyear, Respondent Employer, CopperPoint American Insurance Company, Respondent Carrier.
Attorney: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 Sharon M. Hensley, Mark A. Kendall (argued), CopperPo...
Judge Panel:JUSTICE GOULD authored the opinion of the Court, in which VICE CHIEF JUSTICE TIMMER and JUSTICES BOLICK, LOPEZ, and BALES (Retired) joined.
Case Date:August 15, 2019
Court:Supreme Court of Arizona
 
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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

Supreme Court of Arizona

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)

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 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.

OPINION

GOULD JUSTICE

¶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 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...

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