Arizona Court of Appeals Denies Cancer Presumption to Flagstaff Firefighter With Cancer History

The Arizona Court of Appeals has denied a claim by a Flagstaff firefighter that his testicular cancer should be treated as a job-related illness under the state’s cancer presumption law.

Wesley Forbach, a firefighter and engineer, was diagnosed with left side testicular cancer in April 2018. He underwent surgery and after recovery returned to his normal duties. His application for workers comp benefits was denied by Flagstaff’s workers comp insurer.

Forbach requested a hearing before the Industrial Commission of Arizona, arguing he had been exposed to carcinogens at fires and emergency scenes for over 5 years and as such should qualify under a statutory presumption. He also claimed he was exposed to diesel exhaust fumes.

An administrative law judge denied his claim in light of his medical history. As a teenager, Forbach was diagnosed with right side testicular cancer, which was treated by surgical removal. The administrative law judge concluded that Forbach was not entitled to the statutory presumption. Forbach appealed to the Arizona Court of Appeals.

In deciding the case, the court stated:

  • Starting in 2001, with a significant amendment in 2017, the Legislature created a statutory presumption of industrial causation for firefighters and police officers who contract certain diseases under certain conditions.
  • Arizona Revised Statutes section 23-901.01(B) lists diseases that, if contracted by firefighters or police officers, will be presumed to be occupational diseases that arose out of employment if the four requirements in subsection (C) of the statute are met:
    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 [i] exposed to a known carcinogen as defined by the international agency for research on cancer and [ii] informed the department of this exposure, and [iii] the carcinogen is reasonably related to the cancer.
    4. For the presumption provided in subsection B, paragraph 2 of this section, the firefighter received a physical examination that is reasonably aligned with the national fire protection association standard on comprehensive occupational medical program for fire departments (NFPA 1582).
  • A.R.S. § 23-901.01(C). Subsection (F) of the statute allows for a rebuttal of the presumption if a preponderance of the evidence shows a specific, nonindustrial cause of the cancer.
  • In the case before us, the parties dispute only whether the evidence supports one of the presumption requirements: the showing of the reasonable relation between the carcinogen and the cancer required by subsection (C)(3)[iii]
  • In Forbach’s case, we find that the ALJ correctly interpreted and applied A.R.S. § 23-901.01(C).
  • She determined that Forbach had failed to demonstrate “that his exposure to diesel exhaust (or any other assumed carcinogen) is reasonably related to the development of testicular cancer.”
  • Therefore, she did not apply the presumption to Forbach. We find that the record supports her conclusion.
  • Forbach never showed that any known carcinogen to which he was exposed is reasonably related to testicular cancer.
  • Indeed, the only known carcinogen that he identified was benzene, which he admits is not related to testicular cancer.
  • Forbach did not identify any other specific known carcinogen to which he was exposed.
  • Nor did he offer a list of known carcinogens that are related to testicular cancer.
  • Forbach failed to show that a known carcinogen to which he was exposed as a firefighter was reasonably related to his testicular cancer.
  • For that reason, the ALJ correctly did not allow the presumption that his cancer was an occupational disease covered by worker’s compensation.
  • Failing that presumption, Forbach was unable to prove that his condition is a covered occupational disease. The award is affirmed.

Here is a copy of the decision:

FYI… benzene is a well-known byproduct found in diesel exhaust. More on that here.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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