Arizona Court of Appeals Division One Holds That Firefighters and Peace Officers Are Required to Prove a General Causal Connection Between Their Disease and Employment to Qualify for Workers’ Compensation Benefits Pursuant to A.R.S. § 23-901.01(B).

Hahn, a fifty-two-year-old firefighter, was assigned to hazardous duty for at least five years during his employment with the City of Phoenix and was repeatedly exposed to toxins, which he reported to his employer on forty-one occasions.  Hahn was diagnosed with colon cancer and submitted a claim for workers’ compensation benefits.  His employer denied the claim and, after Hahn requested a hearing, the ALJ likewise denied Hahn’s claim for benefits, concluding that “the evidence tends to point to other non-industrial risks as being more predominant such as having a significant family history of rectal and colon cancer, and early discovery of pre-cancerous polyps (mother, sister, and brother).”  Upon a request for review, the ALJ reaffirmed her decision.  Hahn filed a petition for special action asking for a review of the ALJ’s decision on review and the Court of Appeals accepted jurisdiction.

The Court of Appeals first noted that the sole issue on appeal was whether the ALJ misconstrued § 23-901.01(B) and erred in finding that Hahn was not entitled to the statutory presumption that his colon cancer is an occupational disease.  Arizona’s workers’ compensation laws place the burden on the claimant to prove that he is entitled to compensation by a preponderance of the evidence.  Section 23-901.01(B), however, imposes a lesser burden on firefighters and peace officers with regard to certain diseases:

Notwithstanding subsection A of this section and § 23-1043.01, any disease, infirmity or impairment of a firefighter’s or peace officer’s health that is caused by brain, bladder, rectal or colon cancer, lymphoma, leukemia or aden carcinoma or mesothelioma of the respiratory tract 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:

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. 

The Court noted that the there was no dispute regarding whether Hahn met any of the exceptions in § 23-901.01(B) with the exception of the final requirement in subpart 3 that the carcinogen be reasonably related to the cancer.  Because Hahn had admittedly made no attempt to satisfy this requirement during the hearing, the ALJ found that the presumption did not apply.  On appeal, Hahn argued that requiring a claimant to prove that a carcinogen to which he was exposed was reasonably related to cancer would be contrary to the legislative intent.  The Court of Appeals, however, declined to delve into the legislative history of the statute because its plain language unambiguously required a claimant to prove that a carcinogen was reasonably related to the cancer.  The Court found that the result in applying the plain language of the statute, though perhaps not what the Legislature had intended, was not absurd.  The Court, therefore, affirmed the ALJ’s denial of benefits.

Judge Hall authored the opinion; Judges Weisberg and Gemmill concurred.