Vande Krol v. superstition/benchmark

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

ROBERT VANDE KROL, Petitioner Employee,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

SUPERSTITION FIRE & MEDICAL, Respondent Employer,

BENCHMARK INSURANCE, Respondent Insurance Carrier.
No. 1 CA-IC 22-0046
FILED 7-11-2023

Special Action - Industrial Commission
ICA Claim No. 20210280125
Carrier Claim No. 7138292
The Honorable Amy L. Foster, Administrative Law Judge

AWARD SET ASIDE

COUNSEL
Taylor & Associates, PLLC, Phoenix
By Thomas C. Whitley, Nicholas C. Whitley
Counsel for Petitioner Employee

Industrial Commission of Arizona, Phoenix
By Gaetano J. Testini
Counsel for Respondent

Norton & Brozina, PC, Phoenix
By Christopher S. Norton
Counsel for Respondent Employer and Respondent Carrier
 VANDE KROL v. SUPERSTITION/BENCHMARK
Opinion of the Court

OPINION

Judge Michael S. Catlett delivered the opinion of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Michael J. Brown joined.

C A T L E T T, Judge:

¶1 Arizona’s workers’ compensation system provides covered
firefighters with benefits for workplace injuries. Yet not all firefighting
injuries are alike. Physical injuries stemming from perceptible dangers (like
burns or smoke inhalation from rushing into a burning building) are easily
provable. Occupational diseases stemming from imperceptible dangers
(like cancer from inhaling carcinogens or other noxious chemicals) are more
difficult (if not impossible) to prove, particularly as to causation.

¶2 So, starting in 2001 the Arizona Legislature made it easier for
firefighters (and peace officers) to satisfy causation in some circumstances.
It did so by granting firefighters a statutory presumption that certain
diseases, including brain cancer, are compensable, provided the firefighter
satisfies certain elements. See A.R.S. § 23-901.01 (2017); A.R.S. § 23-901.09
(2021). The legislature, in 2017, changed the law to provide additional
guidance about the amount and nature of the evidence needed to rebut the
presumption. See 2017 Ariz. Sess. Laws ch. 318 (1st Reg. Sess.) (H.B. 2161).
And in 2021, the legislature again changed the law, further relaxing the
showing required to invoke the presumption and heightening the standard
required to rebut it. See 2021 Ariz. Sess. Laws ch. 229 § 6 (1st Reg. Sess.)
(S.B. 1451). We refer to the 2017 version of the statutory framework as the
“2017 statute” and the 2021 version as the “2021 statute.”

¶3 This appeal turns on whether the 2021 statute applies when
the listed injury date falls before, but the evidentiary hearing occurs after,
the effective date of that statute. We hold the 2021 statute applies, which
does not result in an impermissible retroactive application. We, therefore,
set aside the Administrative Law Judge’s (“ALJ”) award of no
compensation and remand for further proceedings under the 2021 statute.

FACTS AND PROCEDURAL BACKGROUND

¶4 Superstition Fire and Medical (“Superstition”) employed
petitioner Robert Vande Krol (“Vande Krol”) as a firefighter and engineer.

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After eighteen years of service, at the age of fifty, he was diagnosed with
oligodendroglioma, a rare form of brain cancer.

¶5 Vande Krol underwent brain surgery (a right craniotomy) on
October 26, 2020, which successfully removed the tumor. Post-surgery,
Vande Krol experienced headaches, memory problems, loss of some
peripheral vision, and vertigo. In January 2021, Vande Krol submitted a
worker’s report of injury, listing his date of injury as October 28, 2020.
Superstition’s insurer, Benchmark Insurance Company (“Benchmark”),
denied the claim. Vande Krol requested a hearing with an ALJ. The
Industrial Commission obliged, appointing an ALJ who held an evidentiary
hearing over three non-consecutive days beginning on October 5, 2021.

¶6 Following those hearings, the ALJ issued a written decision
denying Vande Krol’s workers’ compensation claim. The ALJ concluded
that because there was no provision in the 2021 statute stating the changes
made therein apply retroactively, the 2021 statute applied only to injuries
occurring after the 2021 statute’s effective date. Then, applying the 2017
statute instead, the ALJ concluded Vande Krol failed to show he was
exposed to known carcinogens causing his specific type of brain cancer.
Vande Krol filed a Request for Review, after which the ALJ affirmed her
original ruling.

¶7 Vande Krol timely petitioned for review. We have
jurisdiction under A.R.S. § 12-120.21(B), A.R.S. § 23-943(H), and Arizona
Rule of Procedure for Special Actions 10.

DISCUSSION

¶8 When reviewing a worker’s compensation award, we defer to
the ALJ’s factual findings. Special Fund Division v. Indus. Comm’n, 252 Ariz.
267, 269 ¶ 6 (App. 2021). The interpretation and application of a statute
presents a question of law we review de novo. Vangilder v. Ariz. Dep’t of
Revenue, 252 Ariz. 481, 485 ¶ 11 (2022).

I. The Statutory Framework

A. The 2017 and 2021 Statutes

¶9 Arizona’s workers’ compensation laws grant employees
compensation for personal injury or death from any accident arising out of
and in the course of employment. Ariz. Const. art. 18, § 8. An occupational
disease is considered a compensable injury provided a claimant satisfies six
listed elements. See A.R.S. § 23-901.01(A). But due to their increased risk of

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exposure to known carcinogens, since 2001, the legislature has required
firefighters (and peace officers) to satisfy a lesser burden for certain
diseases, including brain cancer. See A.R.S. § 23-901.01(B)–(C). The
legislature amended the statutory framework for firefighters several times
over the past two decades, including, as relevant here, in 2017 and 2021.

¶10 Under the 2017 statute, a firefighter is entitled to a
presumption that certain diseases are occupational diseases “arising out of
employment” if, as relevant here, the firefighter:

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.

3. 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.

A.R.S. § 23-901.01(C) (2017). This presumption “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[.]” A.R.S. § 23-
901.01(F) (2017).

¶11 In 2021, the legislature again amended the statute by
eliminating one element for invoking the presumption under the 2017
statute. To qualify for the presumption under the 2021 statute, the evidence
must show the firefighter:

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.

A.R.S. § 23-901.09(B) (2021).1 The presumption may now only be overcome
with “clear and convincing evidence that there is a specific cause of the cancer
other than an occupational exposure to a carcinogen[.]” A.R.S. § 23-
901.09(E) (2021) (emphasis added).

1 Both statutes require a firefighter prove an additional element if the
firefighter is diagnosed with certain enumerated diseases not relevant here.

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B. Uncontested Elements

¶12 Here, the ALJ found and both parties agree Vande Krol
satisfied the first two elements in the 2017 statute—the only two elements
required in the 2021 statute. Vande Krol was a firefighter who passed a
physical examination before employment. He continuously underwent
yearly physicals that were reasonably aligned with the national fire
protection association standard on comprehensive occupational medical
programs for fire departments. None of those exams revealed cancer.
Finally, he was assigned to hazardous duty for more than five years before
his diagnosis. So, we agree Vande Krol satisfied two of the three elements
in the 2017 statute and each relevant element in the 2021 statute. But the
parties disagree over which version of the statute applies. If the 2021 statute
applies, Vande Krol is entitled to the statutory presumption. It is less clear
he gets the presumption if the 2017 statute applies. Thus, whether the 2021
statute applies is the question to which we now turn.

II. The 2021 Statute Applies

A. Retroactivity Framework

¶13 Under Arizona law, when the legislature enacts a statute, the
default rule is that the statute, once effective, applies only prospectively. In
other words, courts apply a “canon of construction” that “statutes are
presumed to have a prospective and not a retroactive effect.” Gietz v.
Webster, 46 Ariz. 261, 267 (1935). That presumption, which we refer to in
shorthand as the presumption against retroactivity, “is deeply rooted in our
jurisprudence, and embodies a legal doctrine centuries older than our
Republic.” Landgraf v. USI Film Prods., 511 U.S. 244, 265 (1994). The
presumption protects due process by ensuring fair notice of the law, and
equal protection by protecting disfavored groups from post-hoc
discrimination. See Opati v. Republic of Sudan, 140 S. Ct. 1601, 1607 (2020).

¶14 There are at least three instances, however, where the
presumption against retroactivity does not come into play, even if a change
occurs after events giving rise to a lawsuit. The first is when the legislature
expressly declares the statute applies retroactively. The second is when a
statute impacts a judicial, administrative, or other proceeding that has not
yet occurred. And the third is when the enactment is procedural and does
not affect substantive rights (or at least such rights that have vested). We
describe each instance in more detail, and then explain why the 2021 statute
applies here.

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1. Express Language

¶15 Like other secondary canons of construction, the presumption
against retroactivity does not apply when the legislature expressly and
plainly indicates the new statute applies to a given situation. The
legislature has written this notion into positive law, instructing that “[n]o
statute is retroactive unless expressly declared therein.” A.R.S. § 1-244
(emphasis added). Thus, the legislature may give a statute retroactive effect
by “direct[ing] that it applies retroactively.” State v. Williams, 254 Ariz. 516,
__ ¶ 11 (App. 2023).

¶16 How do we know the required language when we see it? The
legislature need not use magic words. See Schuster v. Schuster, 42 Ariz. 190,
199 (1933). Instead, “[a]ny language that shows a legislative purpose to
bring about [retroactivity] is sufficient.” Id. We use the same rules of
statutory construction we ordinarily use. This “requires us to determine
the meaning of the words the legislature chose to use.” S. Ariz. Home
Builders Ass’n v. Town of Marana, __ Ariz. __, 522 P.3d 671, 676 ¶ 31 (2023).
“We do so . . . according to the plain meaning of the words in their broader
statutory context, unless the legislature directs us to do otherwise.” Id.

¶17 Here is the twist. Typically, when the plain meaning of the
words employed are ambiguous, we have several secondary interpretative
tools at our disposal. See Romero-Millan v. Barr, 253 Ariz. 24, __ ¶13 (2022)
(“When a statute is ambiguous, we consult ‘secondary interpretation
methods[.]’”) (cleaned up). But if the statutory language is unclear as to
retroactivity, we use one—and just one—interpretive tool: we employ the
presumption against retroactivity. See Garcia v. Browning, 214 Ariz. 250,
252–53 ¶ 11 (2007), superseded by statute as stated in State v. Montes, 226 Ariz.
194 (2011) (“In A.R.S. § 1–244, the legislature has plainly directed that we
are not to look to external sources, such as legislative history, to determine
whether a statute is to be applied retroactively.”); see also Biden v. Nebraska,
No. 22-506, 600 U.S. __, 2023 WL 4277210 *16 (June 30, 2023) (Barrett, J.,
concurring) (describing the “presumption against retroactivity” as “a
strong-form canon counsel[ing] a court to strain statutory text to advance a
particular value”).

2. Non-Retroactive Application

¶18 There are other times when a statute can apply to facts
occurring before its effective date even if the statute does not
unambiguously say that it should be applied retroactively. One is when the

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statute, while post-dating the events at issue, is not actually applied
retroactively.

¶19 Saying “this new statute cannot be applied retroactively”
raises a question—what underlying events or facts determine whether the
statute is being applied retroactively? It is common, for example, for the
legislature to pass a statute impacting how a judicial or administrative
proceeding is conducted. And, at times, such a statute’s effective date lands
during ongoing proceedings. One might be tempted to say there that the
statute cannot apply because the statute post-dates the start of litigation or
the events leading to it, resulting in a retroactive application. Yet that is not
how this Court typically handles the situation. Rather, when that occurs,
we allow the new statute to apply immediately. See Wilco Aviation v.
Garfield, 123 Ariz. 360, 362 (App. 1979) (“[S]tatutory changes in procedures
or remedies may be applied to proceedings already pending[.]”); State
Comp. Fund of Ariz. v. Fink, 224 Ariz. 611, 613 ¶ 9 (App. 2010) (“New rules
of procedure are often applied to actions already pending.”). Doing so
recognizes that “[a]pplication of a statute in a particular situation is not
necessarily ‘retroactive’ simply because it relates to antecedent facts.” Fink,
224 Ariz. at 613 ¶ 9.

¶20 Distilled down, we apply a rather straightforward
framework: applying a new procedural statute to a future procedure is not
applying the statute retroactively and is generally permissible. See State v.
Perez-Gutierrez, __ Ariz. ___, 2023 WL 3312385, at *1 ¶7 (App. May 9, 2023)
(applying a new statute regulating sentencing procedures when the
effective date occurred before sentencing); Fink, 224 Ariz. at 613 ¶¶ 6–11
(applying a 2007 statute regarding intervention to a 2006 action arising from
a 2004 accident); Garcia, 214 Ariz. at 253 ¶ 12 (“If the provisions of Senate
Bill 1145 apply only to the conduct of the trial, . . . then application of the
new justification defense statutes is required.”); but see A.R.S. § 1-246
(“When the penalty for an offense is prescribed by one law and altered by
a subsequent law, . . . the offender shall be punished under the law in force
when the offense was committed.”); A.R.S. § 12-505 (setting special rules for
applying changes in statutes of limitation). If, however, a new statute
would change a procedure already completed, the new statute does not
invalidate such procedure. See City of Tucson v. Clear Channel Outdoor, Inc.,
209 Ariz. 544, 549 ¶ 17 (2005) (“[C]hanges in modes of procedure do not
invalidate completed procedural actions valid under the law in effect at the
time they were taken.”).

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3. Procedural Enactments

¶21 There are also “judge-made exceptions to the general
statutory rule about retroactivity.” Id. at 548 ¶ 12. One such exception is
that “[e]nactments that are procedural only, and do not alter or affect earlier
established substantive rights may be applied retroactively.” Aranda v.
Indus. Comm’n, 198 Ariz. 467, 470 ¶ 11 (2000). Procedural enactments may
be applied retroactively “because litigants have no vested right in a given
mode of procedure.” Id.; Mia. Copper Co., 17 Ariz. at 193 (“[T]here is no
vested right in the modes of procedure.”). Thus, while a new procedural
statute does not invalidate procedures already completed (see supra ¶ 20), it
can be applied in situations where doing so might otherwise be thought of
as retroactive. For example, a statutory change to a procedural rule after a
procedure is completed might not be valid reason to reverse a judgment on
appeal, but the new rule could apply to proceedings on remand if the
judgment is otherwise set aside.

B. Application to the 2021 Statute

1. The 2021 Statute’s Text

¶22 The ALJ applied the 2017 statute, in part, because “[t]here is
no provision in [the 2021 statute] that the changes are retroactive.” The ALJ
looked to the date of injury listed in Vande Krol’s application for benefits
(October 28, 2020) in determining whether retroactivity is implicated.
Because the date of injury occurred before the 2021 statute’s effective date,
the ALJ concluded that using the 2021 statute would result in an
impermissible retroactive application. But the ALJ’s analysis overlooked
that the 2021 statute, in A.R.S. § 23-901.09(C)(2), expressly lays out when it
applies (and by implication when it does not); application does not hinge
on the date of injury.

¶23 In deciding when the 2021 statute applies, we start with the
plain meaning of its text. The legislature directed that the presumption
therein “applies to . . . [f]ormer firefighters . . . who are sixty-five years of
age or younger and who are diagnosed with [brain cancer] not more than
fifteen years after the firefighter’s last date of employment as a
firefighter[.]” A.R.S. § 23-901.09(C)(2). Thus, application of the 2021 statute
turns on: (1) the firefighter’s age at the time of diagnosis and (2) a maximum
length of separation from employment at the time of diagnosis. The
legislature did not except application where the date of injury (however one
defines it) occurred before the 2021 statute’s effective date.

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¶24 Nonetheless, the ALJ focused solely on the date of injury
listed in Vande Krol’s claim for benefits. Doing so is inconsistent with the
legislature’s directive on when the 2021 statute applies. Tellingly, the date
of injury Vande Krol listed is the date he reported his diagnosis to his
employer, not the date he underwent surgery, was diagnosed with cancer,
or started experiencing side effects, demonstrating the arbitrariness of
using a firefighter’s listed date of injury, rather than the criteria the
legislature chose, in determining retroactivity.

¶25 The legislature can (and should) include provisions in statutes
defining their application. See A.R.S. § 1-244. When it does, courts and
administrative agencies should start there. They should not, instead, work
in the opposite direction, using alternative criteria combined with
secondary tools of interpretation to alter when a statute applies. But that is
what happened here when the ALJ foreclosed the 2021 statute’s application
based on the listed date of injury (again, not one of the criteria in the statute)
and the presumption against retroactivity.

¶26 A hypothetical scenario shows why pegging the presumption
against retroactivity to the date of listed injury is problematic. Imagine a
firefighter who is 62 and retired 5 years ago. In 2023, he is diagnosed with
brain cancer, which he thinks he can trace to a chemical fire in 2001
(although he cannot be sure). When he applies for benefits in 2023, he lists
his date of injury as the date of that fire, not knowing the legal implications
of doing so. Under the plain text of the 2021 statute, it should apply to the
firefighter’s claim and be used to determine whether he is entitled to
benefits—after all, he is under 65 and has been separated from employment
for less than 15 years. See A.R.S. § 23-901.09(C)(2).

¶27 Under Benchmark’s view, adopted by the ALJ, the
firefighter’s claim would be subject, instead, to the version of the statute
existing in 2001, despite that the injury was undiscovered for years and the
date of actual injury is unknowable. Using the date of listed injury and the
presumption against retroactivity excises a portion of the class of
individuals to whom the 2021 statute would otherwise apply—those who
unwittingly list a date of injury prior to the 2021 statute’s effective date.
This does more than strain statutory text; it overrides it. The better course
is to refrain from using a secondary tool of interpretation to alter the
legislature’s unambiguous text (which implements the legislature’s policy
choice about when a statute applies), particularly when applying the text in
a particular proceeding does not implicate retroactivity (see infra ¶¶ 29-32).

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¶28 At the time of his hearing, Vande Krol was 51 and was
diagnosed with brain cancer in 2020, less than 15 years before ending his
employment. Under the statute’s unambiguous text, the 2021 statute
should have been applied to Vande Krol’s proceedings. Cf. Opati, 140 S. Ct.
at 1608–09 (concluding the presumption against retroactivity was overcome
when Congress allowed certain plaintiffs to invoke a new cause of action in
“Prior Actions” and “Related Actions”).

2. The 2021 Statute’s Non-Retroactive Application

¶29 Applying the 2021 statute to Vande Krol’s proceedings based
on the criteria in the text—age and years of separation (see A.R.S. § 23-
901.09(C)(2))—does not violate retroactivity principles because the 2021
statute became effective before the start of Vande Krol’s hearings.

¶30 The 2021 statute deals primarily with the showing the parties
must make to obtain or defeat the presumption that certain cancers are
work-related. See generally A.R.S. § 23-901.09. At the earliest, the statute
comes into play in a particular proceeding once an ALJ begins to hear and
consider the parties’ evidence during a formal hearing. The Governor
signed the 2021 statute into law on April 14, 2021, and the 2021 statute
became effective on September 29, 2021. Vande Krol’s hearing started on
October 5, 2021, almost six months after the 2021 statute’s passage and
about a week after its effective date. This, therefore, is a situation where
new rules should have been applied “to [an] action[] already pending.”
Fink, 224 Ariz. at 613 ¶ 9; see also In re Dos Cabezas Power Dist., 17 Ariz. App.
414, 420 (1972) (“Every right or remedy created solely by a modified statute
disappears or falls with the modified statute unless carried to final judgment
before the repeal or modification[.]”(emphasis added)).

¶31 This situation bears a strong resemblance to that in Fink. The
plaintiff there sued a tire manufacturer in 2006, arising out of a motor
vehicle accident in 2004. See Fink, 224 Ariz. at 612 ¶ 1. One year into the
litigation, the legislature amended the workers’ compensation laws
(specifically, A.R.S. § 23–1023(C)) to “provid[e] a workers’ compensation
carrier or self-insured employer the right to intervene in personal injury
actions to protect their interests.” Id. ¶ 3. In 2009, the plaintiff’s insurance
company moved to intervene, and the tire manufacturer successfully
opposed the request by convincing the superior court that applying a 2007
statute to a 2006 action arising out of a 2004 accident would be an
impermissible retroactive application. Id. at 613 ¶¶ 6–8. This Court
disagreed, explaining that “[t]he intervention applies to future events—
preparation for trial and trial—and does not change or alter the significance

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of past events.” Id. ¶ 8. Thus, “on a common sense level, application in
2009 of the 2007 amendment is not a retroactive application.” Id.

¶32 The same goes here. The 2021 statute, when it became
effective, applied to a future event—Vande Krol’s evidentiary hearing—
and did not change or alter the significance of past events. The 2021 statute
did not alter anything previously occurring in the proceedings or the facts
giving rise to Vande Krol’s claim. Simply put, applying the 2021 statute to
a later hearing “is not a retroactive application.” Id.; see also Landgraf, 511
U.S. at 273 (“[I]n many situations, a court should ‘apply the law in effect at
the time it renders its decision,’ even though that law was enacted after the
events that gave rise to the suit.” (citation omitted)).

3. The 2021 Statute’s Procedural Nature

¶33 There is another reason the 2021 statute should have been
applied: the statute is procedural in nature and “do[es] not alter or affect
earlier established substantive rights[.]” Aranda, 198 Ariz. at 470 ¶ 11. Our
supreme court has clarified that a substantive law “creates, defines and
regulates rights,” whereas a procedural law “prescribes the method of
enforcing the right or obtaining redress[.]” State v. Birmingham, 96 Ariz. 109,
110 (1964). In the workers’ compensation context, a procedural statute
serves “to facilitate the manner and means by which benefits are
administered.” Aranda, 198 Ariz. at 470–71 ¶ 13. Procedural statutes “do
not create, define, or regulate the right to receive benefits.” Id. at 471 ¶ 13.

¶34 The 2021 statute regulates how firefighters obtain redress for
occupational diseases. The 2021 statute does not create a new right to
redress; firefighters have long been entitled to redress for occupational
diseases, including in the 2017 statute. The 2021 statute does not define the
right to receive benefits. The 2021 statute does not alter the definition of the
term “occupational disease” in A.R.S. § 23-901(13)(c), the definition of the
broader term “[p]ersonal injury by accident arising out of and in the course
of employment” in A.R.S. § 23-901(13), or the general right to workers’
compensation in A.R.S. § 23-1021.

¶35 The 2021 statute also does not sufficiently regulate the right
to receive benefits to be considered a substantive law. The ultimate
presumption afforded to firefighters under the 2021 statute is the same as
that afforded to them under the 2017 statute, even if there are now less
elements to obtain that presumption. As relevant here, the 2021 statute did
two things: it removed one requirement under the 2017 statute for
obtaining the presumption, and it increased the evidentiary burden for

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overcoming it (from a preponderance of the evidence to clear and
convincing evidence). These changes—although undoubtedly important to
those seeking or opposing benefits—are far enough removed from the core
right to benefits to avoid the substantive label.

¶36 Arizona courts have consistently explained that legal
presumptions are procedural in nature; we see no reason to depart here.
See State v. Grilz, 136 Ariz. 450, 455 (1983) (“[T]he presumption of sanity is
a procedural device[.]”); State v. Nihiser, 191 Ariz. 199, 203 (App. 1997) (“We
view presumptions as procedural, rather than evidentiary, concepts.“);
Seiler v. Whiting, 52 Ariz. 542, 549 (1938) (“A presumption is not evidence of
anything, and only relates to a rule of law as to which party shall first go
forward and produce evidence sustaining a matter in issue” (citation
omitted)); see also Ariz. R. Evid. 301.

¶37 This does not mean that a presumption can never be
substantive. The Fifth Circuit has provided guidance—albeit in a different
context (choice of law)—on when a presumption is procedural and when it
is substantive. In Maryland Casualty Co. v. Williams, the court described “the
general rule that presumptions are procedural in nature.” 377 F.2d 389, 394
(5th Cir. 1967). But a presumption is substantive when it is “conclusive,”
which “may be described as one which is final and irrebuttable, an inference
which must be drawn from proof of given facts which no evidence,
however strong, can overcome.” Id. On the flip side, “a procedural
presumption is one which is rebuttable, it operates to require the
production of credible evidence to refute the presumption, after which the
presumption disappears.” Id.

¶38 We agree with the Fifth Circuit’s framework and apply it here.
The 2021 statute contains a procedural presumption—the presumption is
rebuttable and disappears with clear and convincing evidence of “a specific
cause of the cancer other than an occupational exposure to a carcinogen.”
A.R.S. § 23-901.09(E).

¶39 Our conclusion is consistent with the en banc Sixth Circuit’s
analysis in Combs v. Commissioner of Social Security, 459 F.3d 640 (6th Cir.
2006). There, the court considered “whether a change in a rule governing
the adjudication of social security disability benefits claims that is applied
as of its effective date to all pending cases has an impermissibly retroactive
effect.” Id. at 642. The new rule at issue “required more detailed proof of
disability from obese claimants by eliminating a presumption of disability
for obesity.” Id. The en banc Sixth Circuit concluded that the new rule was
not impermissibly retroactive because the presumption was procedural. Id.

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at 647. While acknowledging that “the change may be outcome-
determinative for some claimants,” the court said the presumption was
procedural because “[t]he substantive requirements for disability eligibility
have not changed, only the way in which the agency goes about
determining whether they are present.” Id.

¶40 Contrast the situation here with that in Aranda, where a
statutory revision to the workers’ compensation laws was substantive. The
statute there suspended payment of workers’ compensation to any
employee who had “[b]een convicted of a crime and is incarcerated in any
state, federal, county or city jail or correctional facility.” 198 Ariz. at 470 ¶
9. Our supreme court said the statute was substantive because it could
“eliminate a claimant’s legal authorization to receive benefits based on his
incarcerated status.” Id. at 471 ¶ 15. The effect of the 2021 statute—further
clarifying how to process a claim for benefits in a specific factual context
(occupational diseases impacting firefighters)—is a far cry from the
statute’s effect in Aranda—permanently eliminating vested benefits for an
entire class of workers’ compensation recipients.

¶41 Even if the 2021 statute could be deemed substantive, it still
applies because it did not impact a right that vested before the 2021 statute’s
effective date. “[A] substantive legal right may be subject to retroactive
impairment before it becomes a vested right.” Id. at 471 ¶ 16. A right cannot
be vested if it remains contingent. See Steinfeld v. Nielsen, 15 Ariz. 424, 465
(1913). Rights remain contingent “when they are only to come into
existence on an event or condition which may not happen[.]” Id.

¶42 In the workers’ compensation arena, a “substantive property
right in workers’ compensation payments vest[s] once the Industrial
Commission’s Findings and Award became final.” Aranda, 198 Ariz. at 473
¶ 27. To the extent Benchmark (as the insurer) had a vested right in the
proceedings, the best we can imagine is a vested right in successfully
defending against monetary payment under the insurance policy. But even
if Benchmark had such a right, the right had not vested vis-à-vis Vande
Krol’s claim because his formal hearing had not begun, let alone had any
award of non-compensation become final, when the 2021 statute became
effective. Pre-hearing, any right to successfully defend against Vande
Krol’s claim was subject to several events and conditions which may not
have happened, making any such right contingent. See id. at 471 ¶ 16.

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 VANDE KROL v. SUPERSTITION/BENCHMARK
Opinion of the Court

CONCLUSION

¶43 We conclude the 2021 statute applies to Vande Krol’s
workers’ compensation claim, and we, therefore, need not address whether
the ALJ correctly interpreted the 2017 statute. Because the ALJ did not
apply the 2021 statute, we set aside the award of non-compensation. The
parties and the ALJ all correctly agreed Vande Krol satisfied the elements
necessary to invoke the presumption in the 2021 statute. We remand to
allow the ALJ to determine in the first instance whether Benchmark
presented clear and convincing evidence to rebut the presumption. See
A.R.S. § 23-951(B); Kennecott Copper Corp. v. Indus. Comm’n, 62 Ariz. 516,
521–22, 528 (1945) (reviewing court can only set aside the award and must
assume on rehearing due consideration will be given to facts).

AMY M. WOOD • Clerk of the Court
FILED: AA

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