Howe v. phoenix/york

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

ROBERT HOWE, Petitioner,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

CITY OF PHOENIX, Respondent Employer,

YORK RISK SERVICES GROUP, Respondent Carrier.

No. 1 CA-IC 17-0002
FILED 2-22-2018

Special Action - Industrial Commission
ICA Claim No. 20152-250134
Carrier Claim No. 5669222
Anthony F. Halas, Administrative Law Judge (Retired)

AWARD AFFIRMED

COUNSEL

Jerome, Gibson, Stewart, Stevenson, Engle & Runbeck, P.C., Phoenix
By Darryl Engle
Counsel for Petitioner Employee

Industrial Commission of Arizona, Phoenix
By Jason M. Porter
Counsel for Respondent, ICA
Lundmark, Barberich, La Mont & Slavin, P.C., Phoenix
By R. Todd Lundmark
Counsel for Respondents Employer and Carrier

MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Patricia A. Orozco1 joined.

C A M P B E L L, Judge:

¶1 This is a special action review of an Industrial Commission of
Arizona (“ICA”) award and decision upon review for a noncompensable
mental injury claim. On appeal, the petitioner employee (“claimant”)
argues that the administrative law judge (“ALJ”) erred by finding that the
cumulative effect of exposure to traumatic events over his 21-year career as
a police officer for respondent employer, City of Phoenix (“Phoenix”), was
not unexpected, unusual, or extraordinary. Because the evidence of record
and the applicable law support the ALJ’s conclusion that the claimant was
not exposed to unexpected, unusual, or extraordinary stress, we affirm the
award.

STANDARD OF REVIEW

¶2 In reviewing findings and awards of the ICA, we defer to the
ALJ’s factual findings, but review questions of law de novo. Young v. Indus.
Comm’n, 204 Ariz. 267, 270, ¶ 14 (App. 2003). We consider the evidence in a
light most favorable to upholding the ALJ’s award. Lovitch v. Indus. Comm’n,
202 Ariz. 102, 105, ¶ 16 (App. 2002).

FACTS AND PROCEDURAL HISTORY

¶3 In July of 2015, the claimant filed a workers’ compensation
claim for post-traumatic stress disorder (“PTSD”), which he alleged arose
out of “exposure to numerous first responder related calls for service, job
assignments & supervisor responsibilities.” The respondent carrier, York
Risk Services Group (“York”), denied his claim for benefits, and he timely

1The 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.

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requested an ICA hearing. During four ICA hearings, the ALJ heard
testimony from the claimant, two of his superior officers, and two
psychologists.

¶4 The facts developed through that testimony are summarized
as follows: claimant became a Phoenix police officer in June 1994, and had
reached the level of lieutenant at the time of his injury. He testified that he
first sought medical help in July of 2015, because he was experiencing a lack
of motivation at work, felt emotional, was having sleep disturbances, and
had lost interest in his general activities. Shelley Kaufman, Ph.D., and
Richard Rosengard, D.O., diagnosed claimant with PTSD and provided
work restrictions that precluded the claimant from acting as a first
responder.2 Phoenix was unable to accommodate the claimant’s work
restrictions, and he was forced to remain off work utilizing sick and
vacation time.

¶5 The claimant testified about a number of disturbing incidents
where he was either the first officer on the scene or one of the first and had
to respond to the events. These included several fellow officer shootings,
several baby drownings, receiving the dying declaration of a domestic
violence shooting victim, and being held by fellow officers over the I-17 and
Glendale overpass as he leaned out to pull a suicidal woman jumper to
safety. The claimant compiled a list of work events which he found most
stressful, and it was placed in evidence. The event triggering the claimant’s
PTSD was watching a video of a prisoner receiving CPR. He explained the
prisoner looked like a fellow officer and friend that had been shot and killed
in the line of duty. After seeing this video, he began to have flashbacks to
the traumatic work events.

¶6 The employer called Phoenix Commander Jeffrey Alexander
to testify about his 28 years with the police department. Alexander
explained that he currently supervises 300 officers and reports to assistant
chief of police Dave Harvey. Alexander had read the claimant’s January 15,
2016 list of stressful events. He testified that every law enforcement officer
has these experiences and that they were pretty normal for a career as a
police officer. He himself had been involved in officer shootings and had
received dying declarations and responded to homicides. Alexander was
also aware of other officers who had saved suicide jumpers in a similar

2Every sworn police officer is a first responder. They respond to
radio calls for assistance, as well as activity that they witness, i.e.,
jaywalking, bikes with no tail lights, etc.

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manner. He noted that depending on the severity of the event, anywhere
from one to 100-plus officers may respond to a call.

¶7 The ALJ also received testimony of other life stressors.
Alexander directly supervised the claimant for several years during which
time he saw him daily. He provided testimony regarding two of the
claimant’s stressors: his ex-wife and the department’s reorganization.

¶8 In March 2012, the claimant’s ex-wife met with the
Professional Standards Bureau (“PSB”), i.e. internal affairs, regarding text
messages she had received from the claimant. She later obtained an order
of protection prohibiting any contact by the claimant. PSB sent the text
messages to Alexander to address with the claimant, and Alexander
instructed him to keep his communications with his ex-wife professional
and succinct. In June 2014, the claimant contacted AZPOST, the
accreditation entity for all sworn officers in Arizona, and requested an
investigation of his ex-wife for violation of their child custody arrangement.
Assistant Chief Harvey met with the claimant and Alexander and ordered
the claimant not to contact AZPOST again and to address personal issues
through appropriate channels.

¶9 In early 2014, the department experienced significant budget
issues and underwent a reorganization with officer reassignments. The
claimant’s position was eliminated and he was reassigned to patrol, which
required him to bid on a new shift based on his seniority. Alexander stated
that the claimant was a single parent with childcare issues, and he was not
happy about this change.

¶10 Phoenix Assistant Chief David Harvey testified about the
department reorganization. He stated that in early 2014, the claimant’s
position was slotted for elimination. The department had lost 600 positions,
and to maintain 50 percent of its officers on patrol, it had to eliminate one
of eight precincts and rebalance its personnel. Officers were reassigned to
patrol shifts through a rebid process based on seniority. Although the
claimant mainly bid on day shifts, based on his seniority, he ended up with
a midnight shift.

¶11 In April 2014, following surgery for a nonindustrial bicep
injury, the claimant was placed on light duty and assigned to Central
Booking (“CB”). In July 2015, while working at CB, a permanent position
for a lieutenant was advertised, but the claimant was excluded from
applying because of a pending disciplinary suspension arising out of a

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complaint by his ex-wife alleging he had violated an order of protection.
The claimant appealed the pending discipline to the Civil Service Board,
but the board did not overturn the suspension until after the application
process had concluded.

¶12 Assistant Chief Harvey also testified regarding his
approximate 26 years on the police force and his observations of the
claimant. Harvey testified that he was not aware of the claimant’s
difficulties working as a first responder until after he had filed his workers’
compensation claim for PTSD. He stated that while police work can be very
stressful, the claimant’s experiences were not outside the norm.

[A]s a police officer, and obviously the longer you are a police
officer the more experiences you have, our career exposes us
to some very extraordinary events but . . . that is common for
any first responders . . . particularly in big cities.

Specifically, regarding the claimant’s January 15, 2016 email of unusually
stressful events, Harvey testified that these “would be typical experiences
of a police officer.”

¶13 Shelley Kaufman, Ph.D., a licensed psychologist, testified
regarding her treatment of the claimant. She reviewed the claimant’s
employment documents, independent medical reports, and recorded and
rated his symptoms for frequency and severity. Dr. Kaufman was aware of
the claimant’s exposure to homicide scenes, suicides, shooting scenes,
domestic violence, drownings, and fellow officer shootings. In accordance
with DSM-5,3 she diagnosed the claimant with work-related PTSD, and
worked in conjunction with Dr. Rosengard who prescribed medications.

¶14 Dr. Kaufman testified that watching the CPR video of an
inmate that resembled a fellow officer who died in a 2005 shooting
triggered the claimant’s PTSD. She explained that the brain stores traumatic
information, and unless it is processed, it can be triggered by a sight, sound,
or sensation. She stated that although the claimant is improving, he
continues to require active treatment. Dr. Kaufman was aware of the
claimant’s issues with his ex-wife, but she stated that they had not resulted
in a diagnosable condition. Conversely, she testified that a recurring theme
during the claimant’s treatment was his feeling of betrayal by the
department in its handling of his claim.

3Diagnosticand Statistical Manual of Mental Disorders (5th ed.
American Psychiatric Association).

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¶15 Lauren Dawson, Ph.D., a clinical neuropsychologist, testified
regarding her independent psychological examination of the claimant. She
conducted a clinical interview with the claimant during which she obtained
a history. She also reviewed Drs. Kaufman and Rosengard’s treatment
records and performed psychometric testing to evaluate the claimant’s
moods, personality, and level of functioning. The doctor testified that
although most individuals demonstrate symptoms immediately after a
traumatic event, DSM-5 includes a diagnosis for delayed PTSD in which
symptoms do not manifest for at least six months after the traumatic event.

¶16 In this case, Dr. Dawson believed that the claimant’s
triggering event was viewing the CPR video. She diagnosed the claimant
with resolving PTSD causally related to the accumulative effect of traumas
experienced over 21 years as a police officer and an adjustment disorder
with mixed anxiety and depressed mood. She noted that the adjustment
disorder was contributed to by his relationship with his ex-wife and his
perception of the department’s reaction to his PTSD claim.

¶17 After the hearings, the ALJ entered an award for a
noncompensable claim. The claimant timely requested administrative
review, and the ALJ summarily affirmed the award. The claimant next
brought this appeal.

DISCUSSION

¶18 Workers’compensation claims for mental injuries fall within
the ambit of A.R.S. ' 23-1043.01(B), and are not compensable unless
“unexpected, unusual or extraordinary stress related to the employment”
was a “substantial contributing cause of the mental injury.” The claimant
has the burden of proof. Owens v. Indus. Comm’n, 129 Ariz. 79, 82 (App.
1981). In that regard, the claimant must prove that (1) the work-related
stress was a substantial contributing cause of the mental injury, and (2) the
stress was unexpected, unusual, or extraordinary. Findley v. Indus. Comm’n,
135 Ariz. 273, 276 (App. 1983).

¶19 In this case, both psychologists agreed that the claimant had
sustained work-related PTSD. The remaining issue is whether the
accumulated work-related events causing the claimant’s PTSD were
“unexpected, unusual, or extraordinary.”

¶20 The requirement of “unexpected, unusual or extraordinary
stress” is a legal causation standard. Barnes v. Indus. Comm’n, 156 Ariz. 179,

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182 (App. 1988); accord Arizona Workers’ Compensation Handbook
(“Handbook”) § 5.4.2.2, at 5-11 to -13 (Ray J. Davis, et al., eds., 1992 and Supp.
2015). A more stringent causation standard is applied in these cases because
of the difficulty in establishing the causal connection between the work-
related stress and the mental injury. Id.; Findley, 135 Ariz. at 276 (App.
1983).4 Therefore,

the test for determining the measure of emotional stress is not
a subjective one (i.e., how the employee reacts to the job), but
an objective one (i.e., do the duties imposed by the job subject
the claimant to greater stress than his fellow employees).

Barnes, 156 Ariz. at 182 (quoting Archer v. Indus. Comm’n, 127 Ariz. 199, 203
(App. 1980)).

¶21 In this case, the claimant asserts that he met his burden of
proof by presenting evidence that he was exposed to a greater quantity of
stressful events than his fellow Phoenix officers. In response, Phoenix
presented evidence from two longtime officers. Both officers testified that
the events identified by claimant were typical for police work. As stated by
Assistant Chief Harvey, who was himself shot in the line of duty,

the [claimant’s] descriptions of the events that took place,
they are not unique to [claimant] and they are not
extraordinary. They occur with many police officers . . . that
respond to officer-involved shootings and deaths. Same thing
with drownings and any other critical incident in the City of
Phoenix. That’s what we do. That’s our job.

¶22 We find guidance for these facts in Sloss v. Industrial
Commission, 121 Ariz. 10 (1978). In Sloss, the claimant was a highway
patrolman who suffered chronic anxiety due to work-related stress. Id. at
11. This anxiety manifested itself in a physical condition which was
diagnosed as gastritis. Id. The claimant filed claims both for his physical and
emotional conditions. Id. In rejecting the compensability of his claim, the
ALJ found that the stress to which the claimant was exposed in his
employment as a highway patrolman was the same as, and no greater than,
that imposed upon all other highway patrolmen in the same type of duty.

4For the same reason, the rule that the employer takes the employee
as he finds him does not apply to mental injuries. See Archer v. Indus.
Comm’n, 127 Ariz. 199, 204 (App. 1980).

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Id. at 11-12. Therefore, he was exposed to nothing other than the usual,
ordinary, and expected incidents related to the performance of his job as a
highway patrolman. Id. at 12. The supreme court affirmed by finding that
job-related emotional stress is not compensable unless the emotional stress
is unexpected, unusual, or extraordinary. Id. at 11.

¶23 In this case, we find that all sworn Phoenix police officers can
be called on to act as first responders. In any given situation, they may face
the same stressful incidents that the claimant experienced. Although many
of these situations are extremely stressful, on this record, we cannot hold
that the claimant was exposed to any unexpected, unusual, or extraordinary
stressors different than his fellow officers.

CONCLUSION

¶24 For the foregoing reasons, we affirm the award.

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

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