IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

GILBERT AGUIRRE JR., Petitioner,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

CITY OF GOODYEAR, Respondent Employer,

COPPERPOINT AMERICAN INSURANCE COMPANY, Respondent 

Carrier.

No. 1 CA-IC 17-0017

Special Action - Industrial Commission

ICA Claim No. 20152-040228

Carrier Claim No. 15A00579

Honorable Robert F. Retzer, Administrative Law Judge

AWARD SET ASIDE 

COUNSEL

Taylor & Associates, PLLC, Phoenix

By Thomas C. Whitley, Nicholas C. Whitley 

Counsel for Petitioner

Industrial Commission of Arizona, Phoenix

By Gaetano J. Testini

Counsel for Respondent, ICA

FILED 12-4-2018
2

CopperPoint American Insurance Company, Phoenix

By Mark A. Kendall, Sharon M. Hensley

Counsel for Respondents Employer and Carrier

Toby Zimbalist, Phoenix

Counsel for Professional Firefighters of Arizona, Amicus Curiae

OPINION

Presiding Judge Michael J. Brown delivered the opinion of the Court, in 

which Judge Jennifer B. Campbell and Judge Patricia A. Orozco1 joined.

B R O W N, Judge:

¶1 Gilbert Aguirre Jr. seeks review of an Industrial Commission

of Arizona (“ICA”) award concluding he failed to prove he sustained a 

work-related injury. He argues the administrative law judge (“ALJ”) failed 

to comply with Post v. Industrial Commission, 160 Ariz. 4 (1989), which 

requires an ALJ to make findings that are specific enough to enable proper

judicial review of the award. Because we cannot properly review the award

on this record, we set aside the award. 

BACKGROUND

¶2 Aguirre, a firefighter for the City of Goodyear (“Goodyear”), 

received a blood test for his annual employment physical in May 2015. His 

test results were abnormal and soon thereafter he was diagnosed with 

chronic myeloid leukemia (“CML”). Aguirre filed a workers’ 

compensation claim, which was denied by the respondent carrier, 

CopperPoint American Insurance Company (“CopperPoint”).2 Aguirre 

timely requested an ICA hearing, and the ALJ held hearings where Aguirre 

and two physicians testified. 

 

1 The Honorable Patricia A. Orozco, retired Judge of the Arizona 

Court of Appeals, Division One, has been authorized to sit in this matter 

pursuant to Article VI, Section 3, of the Arizona Constitution.

2 Unless otherwise noted, we refer to Goodyear and CopperPoint 

collectively as “CopperPoint.”
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Opinion of the Court

3

¶3 Aguirre testified that in August 2000 he started working as a 

firefighter in Sierra Vista, and as part of his job duties he responded to both

structural and wildland fires. In August 2007, Goodyear hired Aguirre as 

a firefighter. 

¶4 Following his CML diagnosis, Aguirre obtained his Goodyear 

firefighting records to help him recall the types of fires he responded to and 

his likely chemical exposures. Of the fires identified, Aguirre was most 

concerned about a large fire in a cabinet factory that contained “paints, 

thinners, lacquers, [and] everything that they used to make cabinets,” an 

airport hangar with burning jet fuel, a potato chip factory, a house with 

chlorine stored in the attic, and a number of meth labs. For some fires, 

Aguirre wore a self-contained breathing apparatus (“SCBA”), but for others 

it was not standard practice, and afterwards—when he would not wear a 

SCBA—he would have soot on his hands and face, and up his nose. When 

the firefighters returned to the station after a fire, they would use a garden 

hose and a brush to “try to get as much off of us that we could.” Then they 

cleaned up the equipment and showered. 

¶5 Marc Wilkenfeld, M.D., board certified in occupational 

medicine, authored a report based on Aguirre’s occupational history as a 

firefighter, and testified at the hearing. When attempting to relate a disease 

to an exposure, the doctor explained that several elements were important: 

(1) the correct disease diagnosis, (2) workplace exposures and latency 

periods—the time between “exposures and the development of the 

disease,” and (3) biologic responsibility, i.e., what the medical literature 

says about exposures in terms of carcinogenicity. The doctor addressed 

these points in his report and testimony. 

¶6 As background for his report, Wilkenfeld interviewed 

Aguirre and reviewed his work-related exposures to carcinogenic material 

and medical treatment records. Wilkenfeld stated that Aguirre responded 

to four or five fires per month and had annual physical examinations 

clearing him for work as a firefighter. As a firefighter, Aguirre “had 

repeated exposure to the carcinogens present at the fires, often without

proper protective equipment.” Wilkenfeld concluded that based on his 

review of medical literature, exposure records, and Aguirre’s medical 

history, Aguirre developed CML as a result of such exposures. 

¶7 Wilkenfeld testified about Aguirre’s exposure to chemicals 

and toxins that could lead to a diagnosis of CML, including benzene, 

asbestos, heavy metals, dioxins, and volatile organic compounds, to which 

he was exposed only during his work as a firefighter. Wilkenfeld explained 
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Opinion of the Court

4

that the fires Aguirre identified as being of particular concern were 

dangerous in terms of exposure to carcinogens because they involved oils 

and solvents. He also noted that even if Aguirre used protective gear, he 

still would have been exposed to toxins while cleaning his equipment at the 

fire station after firefighting in toxic environments. 

¶8 Wilkenfeld has experience working with the World Trade 

Center program that has treated firefighters, responders, and survivors of 

the September 11, 2001 attacks (“9/11”) since 2001. He stated that CML is 

on the list of cancers compiled by the federal government that are believed 

to have resulted from 9/11 exposures. He further testified that for 

firefighters present at Ground Zero who developed CML, the federal 

government has accepted latency periods as short as two years. Wilkenfeld 

relied on peer-reviewed studies that have shown increased rates of 

leukemia in firefighters. For these reasons, Wilkenfeld opined that “to a 

reasonable degree of medical certainty,” Aguirre developed CML “as a 

result of exposure that he experienced during his work as a firefighter.”

¶9 Jason Salganick, M.D., board certified in medical oncology, 

produced a report and testified on behalf of CopperPoint. He reviewed 

Aguirre’s testimony, medical treatment records, and the Goodyear call 

records, as well as Wilkenfeld’s report and testimony. Salganick also 

performed a literature search on PubMed and reviewed monographs by the 

International Association for Research on Cancer (“IARC”) and what he 

termed documents “involving 9/11 research and government directive 

protocols for compensation of firefighters.” 

¶10 In his report, Salganick noted that the toxins to which 

firefighters are generally exposed include “benzenes, polycyclic aromatic 

hydrocarbons, aromatic amines, [and] chlorinated dioxins.” He 

acknowledged that benzene is a potential carcinogen and is included in 

IARC’s list of chemicals to which firefighters are presumed to be exposed. 

Salganick testified that firefighters are generally exposed to potential 

carcinogens, including benzene, but he could not determine if Aguirre was 

exposed to a known carcinogen as defined by the IARC because the records 

did not indicate what specific toxins were present at particular fires, what 

protective gear Aguirre wore, or the length of time he spent at each fire. 

¶11 Salganick also explained he was not aware of a reasonable 

relationship between any carcinogen to which Aguirre may have been 

exposed and CML, yet he acknowledged that Aguirre “would have been 

exposed” to various “well-documented substances,” including benzene. 

Salganick stated he was unable to find that Aguirre’s cancer was “causally 
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Opinion of the Court

5

related to his work as a firefighter.” Salganick also explained why his 

opinion differed from Wilkenfeld’s opinion when they had both relied on 

the same studies. Salganick stated that based on his review of the medical 

literature, it was necessary to show a standard mortality ratio (“SMR”) of 

greater than 200, or a two-fold increase in the risk of developing cancer, 

before a study could be considered statistically significant and the cancer 

reasonably related for purposes of establishing a compensable claim. 

According to Salganick, there is a paucity of medical literature meeting that 

standard. As a result, the literature only supported a possible connection 

between Aguirre’s work as a firefighter and CML. Regarding the federal 

government’s 9/11 Ground Zero list of potentially-related cancers, the only 

two on the list that have been recognized as being causally related are 

thyroid and prostate cancer.

¶12 Following the hearings, the parties filed simultaneous posthearing memoranda. In his ruling, after briefly summarizing the testimony, 

the ALJ stated he was more persuaded by CopperPoint’s memorandum 

and concluded that Aguirre “failed to carry his burden of proving by a 

reasonable preponderance of the evidence that he sustained a work related 

injury on May 14, 2015.” Following Aguirre’s request for review, the ALJ 

summarily affirmed the award and Aguirre sought review in this court. 

DISCUSSION

¶13 To establish a compensable injury under the Arizona 

Workers’ Compensation Act, a claimant must prove an accidental injury 

that arose out of, and in the course of, employment. See Ariz. Rev. Stat. 

(“A.R.S.”) section 23-1021; Malinski v. Indus. Comm’n, 103 Ariz. 213, 216 

(1968) (stating that claimant has the burden to affirmatively establish 

entitlement to compensation). An injury includes an occupational disease, 

A.R.S. § 23-901(13)(c), which is compensable only if the claimant meets six 

requirements, including proof of a “direct causal connection between the 

conditions under which the work is performed and the occupational 

disease,” A.R.S. § 23-901.01(A). The compensability of certain occupational 

diseases contracted by firefighters or peace officers, however, involves a 

lower burden of proof, as reflected in A.R.S. § 23-901.01(B):

[A]ny disease, infirmity, or impairment of a firefighter’s or 

peace officer’s health that is caused by . . . leukemia . . . and 

that results in disability or death is presumed to be an 

occupational disease as defined in § 23-901, paragraph 13, 

subdivision (c) and is deemed to arise out of employment.

The presumption is granted if all of the following apply:
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Opinion of the Court

6

1. The firefighter or peace officer passed a physical 

examination before employment and the examination did not 

indicate evidence of cancer.

2. The firefighter or peace officer was assigned to hazardous 

duty for at least five years.

3. The firefighter or peace officer 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.

(Emphasis added.)3 On appeal, CopperPoint does not dispute that 

subsections B(1) and B(2) have been satisfied; instead, it focuses primarily 

on subsection B(3)’s third prong—the requirement that the carcinogen to 

which Aguirre was allegedly exposed is “reasonably related” to his CML. 

To meet that condition, Aguirre had to “demonstrate that at least one

carcinogen he was exposed to during hazardous duty is reasonably related” 

to his CML. Hahn v. Indus. Comm’n, 227 Ariz. 72, 75, ¶ 12 (App. 2011)

(emphasis added). 

¶14 Aguirre argues the ALJ’s award lacks legally sufficient 

findings for this court to be able to review whether the award was 

compensable, citing Post. In Post, our supreme court granted review to 

“examine the need for and degree of specificity in findings and awards

required in workers’ compensation cases.” 160 Ariz. at 5. The Post court 

first noted the lack of specificity in the award at issue there—the ALJ “made 

no factual findings of consequence, resolved no conflicts in the evidence, 

and set forth no conclusions applying law to fact. Instead, . . . he simply set 

forth the ultimate legal conclusion.” Id. Concluding that “judicial review” 

was not possible “on this record,” the court re-affirmed the longstanding 

principle that an award must specify the basis for the ultimate disposition 

 

3 The legislature’s 2017 amendment to § 23-901.01(B) included a 

provision addressing the standard of proof required to rebut the 

presumption. See A.R.S. § 23-901.01(F) (“The presumptions provided in 

subsection B of this section 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.”). Because we only address whether the 

award includes sufficient findings, the 2017 amendment does not affect the 

substance of our analysis. 

 
AGUIRRE v. GOODYEAR/COPPERPOINT

Opinion of the Court

7

and the evidence supporting that basis. Id. at 7–8; see also Douglas Auto & 

Equip. v. Indus. Comm’n, 202 Ariz. 345, 347, ¶ 9 (2002) (stating that an ALJ 

“must make factual findings that are sufficiently comprehensive and 

explicit for a reviewing court to glean the basis for the [ALJ’s] conclusions”); 

Wammack v. Indus. Comm’n, 83 Ariz. 321, 325 (1958) (stating that “the 

findings of administrative agencies must be explicit to enable the reviewing 

court to review the decision intelligently and to ascertain whether the facts 

as found afford a reasonable basis for the decision or be sufficiently definite 

and certain to permit of judicial interpretation”).

A. Waiver

¶15 CopperPoint contends that Aguirre is precluded from seeking 

appellate review of the sufficiency of the ALJ’s findings because he failed 

to raise the issue in his request for review of the award by the ALJ. We are 

not persuaded by this contention for several reasons. First, nothing in Post

suggests a party is required to challenge the sufficiency of findings in a

request for review as a condition of asserting that argument on appeal. See 

160 Ariz. at 7 (requiring ALJs to include sufficient findings to ensure that 

judicial review is possible). 

¶16 Second, although a party seeking to challenge an ICA award 

in the appellate courts must first file a request for review, A.R.S. § 23-943(A), 

that same provision makes it clear that a party has no obligation to include 

any specific arguments in the request to preserve them for appellate review, 

id. (stating that a request for review “need only state that the party requests a 

review of the award” and that the request “may be accompanied by a 

memorandum of points and authorities”) (emphasis added). See generally 

Backus v. State, 220 Ariz. 101, 104, ¶ 11 (2009) (“When statutory language 

admits of only one interpretation, we go no further.”).

¶17 Third, CopperPoint’s reliance on Stephens v. Industrial

Commission, 114 Ariz. 92 (App. 1977), is misplaced. Stephens did not address 

the question presented here—whether the failure to raise a challenge to the 

sufficiency of findings must be raised in a request for review. Instead, the 

issue in Stephens centered on the claimant’s argument that the hearing 

officer erred by addressing whether a permanent disability had been 

proven. Id. at 94, 95. Explaining that the claimant had previously 

challenged the carrier’s notice terminating benefits with no permanent 

disability, we rejected his argument on three grounds: (1) the claimant 

clearly placed the matter at issue in his request for hearing; (2) given the 

lack of evidence presented regarding a permanent disability, the claimant 

necessarily failed to meet his burden; and (3) he failed to raise the issue at 
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Opinion of the Court

8

any point in the ICA proceedings. Id. at 96. Addressing the third ground, 

we explained that consistent with principles of exhaustion of 

administrative remedies, our review would “be limited to the same matters 

which the hearing officer could consider in its review of its own decision.” 

Id. at 95. 

¶18 Here, Aguirre had no obligation to challenge the sufficiency 

of the findings in the ICA proceedings to preserve it for appeal because the 

only action he was required to take under § 23-943 was to file a request for

review; he was not required to raise any specific argument. Thus, unlike

the issue in Stephens, the exhaustion of administrative remedies doctrine 

does not apply here because § 23-943 is permissive as to whether a party

may challenge the sufficiency of the ALJ’s findings in a request for review. 

See Sw. Paint & Varnish Co. v. Ariz. Dep’t of Envtl. Quality, 194 Ariz. 22, 24, 

¶ 14 (1999) (recognizing that “the exhaustion of administrative remedies 

doctrine does not apply in many circumstances, including those where the 

remedy is permissive”).

¶19 Because Stephens does not apply to the issue before us, neither 

does the sole reported decision that relied on Stephens in summarily 

concluding that failure to challenge the sufficiency of the ALJ’s findings in 

a request for review waives that argument on appeal. See Spielman v. Indus. 

Comm’n, 163 Ariz. 493, 496 (App. 1989). Spielman was decided 11 months 

after Post, but did not address it. And the only reported decision citing 

Spielman is Teller v. Industrial Commission, 179 Ariz. 367, 371 (App. 1994), 

which relied solely on Spielman to conclude that failure to raise lack of 

findings in a request for review precludes that party from raising the issue 

on appeal. Teller has never been cited in a reported decision for the 

principle that a party in an ICA proceeding is precluded from challenging

the sufficiency of the ALJ’s findings if it failed to raise that argument in a 

request for review. Because the genesis of these two cases was Stephens, a 

case that did not address the question presented here, we decline to follow 

Spielman and Teller insofar as they would preclude us from deciding 

whether the award in this instance includes sufficient findings.

¶20 Accordingly, we hold that Post’s requirement that an ALJ 

make findings sufficient to permit meaningful judicial review, 160 Ariz. at 

8, applies even if a party fails to raise that specific issue in a request for 

review. We are not suggesting a party should ignore an obvious issue of 

insufficient findings; the better practice would be to bring the matter to the 

ALJ’s attention. But failure to do so does not preclude judicial review. 
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Opinion of the Court

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B. Sufficiency of Findings

¶21 Alternatively, CopperPoint argues the ALJ’s award “contains 

ample findings and conclusions” to permit meaningful appellate review. 

Relying on Pearce Development v. Industrial Commission, 147 Ariz. 582 (1985), 

CopperPoint notes that a court will uphold an award where the ALJ “at 

least draws conclusions on the legal issues” and thereby allows the court to 

“determine from the record” whether the evidence supports the ALJ’s 

conclusions. In Post, our supreme court distinguished Pearce, because the 

ALJ in Pearce “had at least drawn conclusions on the legal issues so that we 

could determine from the record whether the evidence supported his 

conclusions.” 160 Ariz. at 8. The Post court acknowledged that normally,

an appellate court reviews the record in search of support for the award. 

Id. However, in Post, the court was “unable to perform the type of judicial 

review that workers’ compensation cases require.” Id. 

¶22 Here, the lack of specificity in this award mandates the same 

conclusion. The ALJ summarized the facts and the testimony of both 

doctors and came to the bare conclusion that Aguirre “failed to carry his 

burden of proving by a reasonable preponderance of the evidence that he 

sustained a work related injury.” The ALJ did not resolve conflicting 

evidence, make ultimate factual findings, provide legal analysis of 

§ 23-901.01(B)(3), or discuss Hahn, which is the only reported decision to 

date interpreting that statute. See Post, 160 Ariz. at 8 (“If we were to approve 

the award here, however, with no stated resolution of conflicting testimony, 

no findings of ultimate fact, and no conclusions on the legal issues, there 

would be no purpose in requiring [ALJs] to make findings.”). 

¶23 Finally, with no citation to authority, CopperPoint also argues 

the ALJ’s reliance on its post-hearing memorandum makes the findings 

sufficient. Our research reveals one reported decision where this court 

found, under unique circumstances, that an ALJ’s reliance on a party’s legal 

memorandum was sufficient to comply with Post. See Hester v. Indus. 

Comm’n, 178 Ariz. 587, 589–90 (App. 1993) (noting the ALJ’s findings 

“incorporated” one party’s memorandum and the court “could determine 

whether the factual assumptions and legal arguments in this memorandum 

support the no loss award”). Post recognized that an ALJ’s findings do not 

have to be in “any particular form” but the supreme court reiterated that 

“we must know how the [ALJ] reached his or her conclusion.” 160 Ariz. at 

8–9. Stated differently, regardless of the format in which the findings are 

presented, if the award requires us to speculate about how the ALJ resolved 

material disputes in the case, then the findings are insufficient. See id. at 7–

9 (“Although lack of findings on a particular issue does not invalidate an 
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Opinion of the Court

10

award per se,” if we must “speculate” about the basis for the award or 

“assume a factfinder role,” then the award must be set aside.). 

¶24 Here, the ALJ’s decision finding that CopperPoint’s 

memorandum was more persuasive does not satisfy Post. We need not 

address every point in the eight-page memorandum to reach this 

determination, as a few examples will suffice. CopperPoint asserted that 

Aguirre failed to meet the statutory presumption, but even if he did, the 

ALJ “should conclude that Dr. Salganick’s opinions are more probably 

correct that there is insufficient scientific evidence to support a causal 

connection between [Aguirre’s] CML and his work as a firefighter.” But 

CopperPoint cited no authority addressing under what circumstances an 

employer may rebut the presumption under the statute, as worded in 2015. 

See Hahn, 277 Ariz. at 77, ¶ 18 n.3 (declining to address the “nature and 

effect” of the presumption “when it does apply”). 

¶25 CopperPoint argued Aguirre failed to establish, under the 

first prong of § 23-901.01(B)(3), he was exposed to a known carcinogen as 

defined by the IARC, relying on Salganick’s testimony. Wilkenfeld stated 

in his report that Aguirre “had repeated exposures to the carcinogens 

present at the fires,” including “Polycyclic Aromatic Hydrocarbons (PAHs) 

and dioxins.” Wilkenfeld testified that as a firefighter Aguirre would have 

been exposed to “things like benzene.” Salganick testified that nothing in 

the records showed that Aguirre was exposed to a known carcinogen, but 

on cross-examination he agreed Aguirre “would have been exposed” to 

substances such as “benzenes, [etc.]” because “they are generally accepted 

as the kinds of chemicals to which firefighters are exposed.” And Salganick

did not dispute that benzene is listed by the IARC. CopperPoint's 

memorandum, however, did not include any discussion of benzene or the 

other potential carcinogens the doctors discussed in their reports and 

testimony. 

¶26 CopperPoint’s memorandum also seemed to suggest that

Aguirre failed to report his exposure to his employer as required by 

the second prong of § 23-901.01(B)(3). The statute does not address when, 

or in what format, such a report must be given. See § 23-901.01(B)(3). 

Regardless, other than the award’s bare reference to the memorandum, 

nothing else in the record indicates the ALJ relied on either of these prongs 

to conclude that Aguirre failed to meet his burden. 

¶27 CopperPoint argued further that Aguirre “presented 

absolutely no evidence that he was exposed at a particular time to a 

particular carcinogen.” Aguirre challenged this point in his request for 
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Opinion of the Court

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review, asserting that CopperPoint was seeking to impose “an impossible 

burden” by contending that he was required to connect exposure to a 

specific potential carcinogen to a specific firefighting event. Without 

citation to authority, CopperPoint faulted Wilkenfeld for failing to identify 

details such as the year of the exposure, the length of time Aguirre was on 

the scene, whether Aguirre went into the fire or manned a hose or what 

type of protective equipment he used during the alleged exposure. Nothing 

in the statute or Hahn requires this level of detail. As we explained in Hahn, 

application of the statute means Aguirre “need only show a general causal 

link between a carcinogen to which he was exposed and one of the 

enumerated cancers to qualify for the presumption, not that the exposure 

caused his particular cancer.” 277 Ariz. at 76, ¶ 16 (second emphasis added).

¶28 Finally, as to the credibility of witnesses, the memorandum

fails to satisfy Post’s directive that an ALJ “must resolve all conflicts in the 

evidence, especially when the conflicts involve expert medical testimony.” 

160 Ariz. at 8. Although CopperPoint analyzed portions of the testimony, 

the memorandum lacks any meaningful attempt to resolve the various 

conflicts between the opinions offered by Wilkenfeld and Salganick. For 

example, the experts offered conflicting testimony as to what the SMR, or 

increase of risk in developing cancer, must be to show a reasonable relation 

between exposure of a carcinogen and the cancer. According to Salganick, 

anything less than a two-fold increase in the risk means that a connection 

between a carcinogen and the cancer is only possible, not probable, but

Wilkenfeld disputed that a two-fold increase is required to establish a 

probable association. They also offered differing opinions as to what types 

of carcinogens Aguirre was exposed to, if any, and disagreed as to whether 

Salganick was qualified to offer an expert opinion on causation.

¶29 Nothing in the ALJ’s award or the memorandum indicate that 

the ALJ resolved these issues. It is not our role to speculate as to which 

arguments made by CopperPoint the ALJ found more persuasive to 

ultimately conclude that Aguirre failed to meet his burden. Thus, 

referencing the memorandum does not remedy the ALJ’s inadequate

findings. In our view, an ALJ will generally be better served to issue his or 

her own findings instead of relying on a party’s memorandum. Doing so 

will help avoid ambiguities and conflicts that may arise on appeal. Thus, 

at a minimum, an ALJ choosing to rely on a memorandum should carefully 

delineate which portions of the memorandum he or she is relying on and 

how those portions support the award. 

¶30 On this record, we must set aside the award because the lack 

of findings leaves us unable to meaningfully review the ALJ’s decision. See
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Opinion of the Court

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id. at 7 (“[W]e have no way of evaluating the basis of the judge’s award and 

consequently cannot determine the factual support for, or the legal 

propriety of, his conclusion.”). Aguirre needed to show a general causal 

link between his exposure to at least one particular carcinogen and his 

CML, but we are unable to determine whether the ALJ erred by ruling he 

failed to meet that burden—we cannot tell what evidence the ALJ relied on

and why, or what elements of § 23-901.01(B), if any, were not satisfied. 

CONCLUSION

¶31 Given the absence of legally-sufficient findings, we set aside 

the ICA award.