IN THE 

## S UPREME 

## C OURT OF THE 

## S TATE OF 

## A RIZONA
IN DIVISION

G ILBERT A GUIRRE , J R

. , Petitioner
,

v.

T HE I NDUSTRIAL C OMMISSION OF A RIZONA , Respondent,

C ITY OF G OODYEAR , Respondent Employer,

C OPPER P OINT A MERICAN I NSURANCE C OMPANY , 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. 2015 2

- 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 ArizonaAGUIRRE V

. ICA/CITY O F GOODYEAR, ET AL

. Opinion of the Court

2 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 ( R ETIRED ) joined.

JUSTICE GOULD , opinion of the Court:

¶1 I n Post v. Indus trial Comm issio n of Ariz ona , 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, includin g 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 meth amphetamine labs. In May 20 15, 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 I CA

. 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 beenAGUIRRE V

. ICA/CITY O F GOODYEAR, ET AL

. Opinion of the Court

3 t hat statute
, a firefighter diagnosed with Aguirre’s type of cancer i s 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 kn own carcinogen

. . . and the carcinogen is reasonably related to the cancer.” § 23

- 901.01 (B)(1), (C)(1)

– (3) ; s ee 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

re asonably related” to his medical condition ).

¶4 The testimony at the h earing focused primarily on whether Aguirre was exposed to any carcinogen s that w ere “reasonably related” to his CML. See § 23

- 901.01(C)(3)

. M arc 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 prot ective gear Aguirre wore, or how long he spent at each fire. Salganick further s tated 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
, t he ALJ denied Aguirre’s claim for benefits. In his decision
, the ALJ briefly summariz ed the testimony and noted that

renumbered . Because no material changes were enacted , f or ease of reference we refer to the current version of the statute.AGUIRRE V

. ICA/CITY O F GOODYEAR, ET AL

. Opinion of the Court

4 “[t]his is a claim under the Occupational Disease Statute § 23

- 901.01 (A) and (B).” T he 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

. T he ALJ summarily affirmed the award

. ¶8 Following a petition for special action, t he court of appeals set aside the awa rd based on “ the absence of legally

- sufficient findings
, ” and held that “ Post ’s requirement that an ALJ make findings sufficient to permit meani n gful 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 B ecause this case involves an issue of statewide importance
, w e grant ed 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 I n Post , the claimant request ed 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 conflict ing medical expert testimony on both issues. Id. However, in his decision
, the ALJ made no findings resolving the conflicting medicalAGUIRRE V

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. Opinion of the Court

5 testimony, nor did he make any findings regarding the material issues in the case. Id. at 8 . Rather, he “m erely 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 W e 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 (s tating 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 finding s ” )

. However, because the ALJ did not comply with his statutory duty, any meaningful appellate review was not pos s ible 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 c onflicts involv ing 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). A lthough the ALJ ge nerally cited the occupational disease statute, he made none of the findings required under § 23

- 901.01 (B) and ( C )

. Specifically, the award neither resolve s the material issue of whether Aguirre “was exposed to a known carcinogen

. . . and the carcinogen is reasonably related to” his CML , nor does it resolv e the conflicting opinions of Drs. Wilkenfeld and Salganick on th is 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. Indus trialAGUIRRE V

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. Opinion of the Court

6 Comm issio n , 114 Ariz. 92 (App. 1977). There, the court of appeals held that apart from t he 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, 37 0

– 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 cla imant’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 conflicti ng testimony of the medical witnesses)

. ¶16 Copper P oint’s reliance on Teller v. Indus trial Comm issio n , 179 Ariz

. 367 (App. 1994)
, and Spielman v. Indus trial Comm issio n , 163 Ariz. 493 (App. 1989)
, is misplaced. Neither case addressed an award that lacked material findings. Rather, i n both cases the court determined that the claimant, by failing to make a request for additional findings , waived that issue on appeal

. Se e 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) (h olding 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, w e set aside the ALJ’s award. Further, we affirm the c ourt of a ppeals decision in part but vacat e paragraphs 16

– 18

.