Vande Krol v. Indus. Comm’n of Ariz., – 7/11/2023
Arizona Court of Appeals, Division One holds a statutory amendment which relaxes the standard for showing causation for workers’ compensation claims applies when the evidentiary hearing occurs after the amendment.
Arizona’s workers’ compensation system contains special provisions for firefighters who file claims for occupational diseases stemming from unseen or imperceptible dangers inherent in their jobs, such as exposure to carcinogens or other noxious chemicals. In essence, these provisions make it easier for firefighters to demonstrate causation when filing a claim for compensation. One such provision entitles a firefighter to a rebuttable presumption that certain diseases, such as brain cancer, are compensable if the firefighters satisfies certain elements. The 2017 version of the relevant statute set out three elements: (1) the firefighter passed a physical examination before employment and the exam did not indicate the evidence of cancer; (2) the firefighter was assigned to hazardous duty for at least five years; and (3) the firefighter was exposed to a known carcinogen. In 2021, the legislature eliminated the third element.
In October 2020, a firefighter underwent brain surgery to treat a rare form of brain cancer. The surgery was successful, but the firefighter suffered some post-surgical effects. The following January, he submitted a workers’ compensation claim to his employer’s insurer, which listed his date of injury as the date he underwent surgery. The insurer denied the request, and the firefighter requested a hearing with the Arizona Industrial Commission.
The Industrial Commission appointed an ALJ who held an evidentiary hearing in October 2021. The firefighter argued that the 2021 version of the statute should apply; the insurer argued that the 2017 version controlled. The ALJ, based on the fact that the firefighter had listed October 2021 as the date of injury, agreed with the insurer, determining that the 2021 amendments did not contain a retroactivity provision and so only applied to injuries occurring after their effective date. As a result, the ALJ concluded the fire fighter was not entitled to a presumption of compensability and denied his claim. The firefighter appealed to the Arizona Court of Appeals.
On appeal, the Court of Appeals vacated the ALJ’s finding and remanded for further proceedings. In the court’s view, there was no issue of retroactive application of the 2021 amendments because nothing in the statute tied its application to the date of injury. Instead, the statute itself clarified that it applied so long as a claimant was 65 or younger at the time of diagnosis and was within 15 years of their last employment as a firefighter. The ALJ erred by reading in a “date of injury” test for determining whether a firefighter was entitled to a presumption under the 2021 amendments.
Further, the court noted, whether a firefighter was entitled to a presumption was a procedural matter. The rule against retroactivity only applies to changes in substantive rights, and so the 2021 procedural changes would not have implicated the rule against retroactivity. Instead, they applied to all hearings occurring after their effective date, as the firefighter’s hearing did.
Judge Catlett authored the opinion for the court, joined by Judges McMurdie and Brown.
Posted by: Joshua J. Messer