Craig v. City of phoenix/city of Phx

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

THOMAS CRAIG, Petitioner Employee,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

CITY OF PHOENIX, Respondent Employer,

CITY OF PHOENIX, Respondent Carrier.

No. 1 CA-IC 23-0002
FILED 01-09-2024

Special Action - Industrial Commission
ICA Claim No. 20212770223
Carrier Claim No. 21G10J874066
The Honorable C. Andrew Campbell, Administrative Law Judge

AWARD SET ASIDE

COUNSEL

Ahwatukee Legal Office P.C., Phoenix
By David L. Abney (argued)
Counsel for Petitioner Employee

Industrial Commission of Arizona, Phoenix
By Afshan Peimani
Counsel for Respondent
Lundmark, Barberich, La Mont & Puig, P.C., Phoenix
By R. Todd Lundmark, David T. Lundmark (argued)
Counsel for Respondent Employer and Insurance Carrier

MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding
Judge D. Steven Williams and Judge Samuel A. Thumma joined.

M c M U R D I E, Judge:

¶1 Phoenix Police Sergeant Thomas Craig died from COVID-19
complications. Sergeant Craig’s widow, Lynn Craig, asks us to review the
Industrial Commission of Arizona’s ruling that she failed to prove Sergeant
Craig contracted the virus at work. We set aside the award because the
Commission’s procedural rulings did not achieve substantial justice as
required by A.R.S. § 23-941(F).

FACTS1 AND PROCEDURAL BACKGROUND

¶2 Sergeant Craig worked for the Phoenix Police Department. In
2021, he was the administrative sergeant of the property management unit
responsible for maintaining the building and supervising a squad. He
mostly worked at his desk but interacted daily with co-workers and the
public. On July 19, 2021, Sergeant Craig tested positive for COVID-19. He
was hospitalized on July 25, released soon after, and then hospitalized again
from July 28 until he died on September 3, 2021, from complications of the
viral infection.

¶3 Before he died, Sergeant Craig filed a workers’ compensation
claim alleging he contracted COVID-19 while at work. After his death, Lynn
Craig filed a death benefit claim. The City of Phoenix denied the claims.
Lynn Craig contested those denials, and the Commission held an
evidentiary hearing on both claims.

¶4 Lynn Craig testified that she and her husband did not go out
much that summer but dined at sparsely filled restaurants perhaps twice a

1 “We consider the evidence in a light most favorable to sustaining the
award.” Turner v. Indus. Comm’n, 251 Ariz. 483, 484, ¶ 2 (App. 2021).

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week. Their three adult children lived with them, and the children worked
outside the home.

¶5 Lynn Craig also testified that Sergeant Craig began feeling ill
and fatigued on Saturday, July 10, 2021. He blamed his symptoms on
allergies and went to work July 12, 13, and 14. He appeared well and did
not complain to others of feeling ill during those days.

¶6 On July 15 and 16, Sergeant and Lynn Craig attended a
two-day investment seminar with a close friend, Vincent Del Franco. At
least 30 people attended the workshop, with tables grouped by four or six
persons in a large space. The event lasted about seven hours each day. The
Craigs and Del Franco did not wear masks at the seminar, but some other
attendees did. On Monday, July 19, Sergeant Craig did not feel well, left
work early, and tested positive for COVID-19.

¶7 Del Franco started feeling ill on July 21 or 22. Lynn Craig
tested positive on July 28. Sergeant Craig did not go back to work after
testing positive for COVID-19, and his condition worsened over the next
weeks. He was admitted to the hospital with pneumonia on July 28 and
remained in the hospital until his death five weeks later.

¶8 Sergeant Craig’s secretary, Jacqueline Shepard, testified that
she worked with Sergeant Craig daily. She was out of the office on vacation
in late June 2021 and returned to work on July 12. She worked with Sergeant
Craig on July 12 and 13, but an injury prevented her from returning to work.
She said Sergeant Craig typically held work meetings in his 12 x 12 office,
sometimes closing the door. She also claimed that Sergeant Craig met with
other supervisors in another 12 x 12 office. Shepard reported that Sergeant
Craig often wore a mask because his office was not configured for two
people to stay six feet apart. He usually met with others from outside the
building, including officers and civilian vendors. Shepard maintained the
Department failed to notify her that a close contact of hers had COVID-19
and that at least nine people were missing from Sergeant Craig’s close
contacts list.

¶9 Others who worked with Sergeant Craig also testified. His
supervisor said Sergeant Craig had no symptoms until July 19. He also
testified that Sergeant Craig typically wore a mask when meeting others.
The head of the police department’s safety programs testified there was no
report that anyone on Sergeant Craig’s close contacts list tested positive for
COVID-19 during July.

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¶10 Lynn Craig and the City of Phoenix each called a testifying
medical expert. Lynn Craig called Dr. Craig H. Smith, and the City of
Phoenix called Dr. Daniel E. Brooks. Both experts reviewed medical
records, documents, and Lynn Craig’s statements about her husband’s
condition before his hospitalization.

¶11 Lynn Craig told Dr. Smith that Sergeant Craig was concerned
that someone in his office, probably before July 10, was coughing a lot. This
person was never identified. Lynn Craig learned this information from
Sergeant Craig’s brother, who said he learned it from Sergeant Craig when
they met for a meal. A text message from Sergeant Craig’s brother stated,
“He [Sergeant Craig] mentioned something [about] someone in his office
that had Covid when we were at breakfast on July 10th.” Relying on Lynn
Craig’s information, Dr. Smith testified that this unknown coughing person
was likely infected with COVID-19 and gave it to Sergeant Craig. Dr. Smith
testified that it was statistically more likely that Sergeant Craig became
infected at work because he “spent much more time with highly unknown
individuals” at work and had a higher chance of infection “from
individuals where we just didn’t know if they were infected or not.”

¶12 Dr. Brooks testified that based on what the medical records
noted about the onset of symptoms and COVID-19’s incubation period,
Sergeant Craig was likely exposed around July 15 or 16—when he attended
the financial seminar. Dr. Brooks testified that the proposed course of the
disease, starting with the exposure around July 6, leading to a positive
COVID-19 test result on July 19, and resulting in severe illness on July 25
when Sergeant Craig went to the hospital, would be a “very unique” course
for COVID-19.

¶13 Particularly significant here is that the ALJ sustained hearsay
objections to questions presented to Lynn Craig and Shepard during their
testimony. Lynn Craig testified that Sergeant Craig was concerned about
COVID-19 exposure from the person coughing at work. But the ALJ
sustained the City’s hearsay objection when she was asked about Sergeant
Craig’s awareness of the exposure. Similarly, the ALJ did not allow Shepard
to answer questions about the coughing incident.

¶14 In a post-hearing memorandum provided before the evidence
closed, Lynn Craig provided an offer of proof of the excluded testimony.
See Ariz. Admin. Code R20-5-148(B). First, she avowed that if allowed to
testify, she would testify that Sergeant Craig came home from work shortly
before July 10 and told her that he met with someone in his office who was
coughing and was concerned that this person had COVID-19. She would

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also testify that on July 12, Sergeant Craig told her that the coughing person
had tested positive for COVID-19. He never told her the person’s name. She
also would have testified that Sergeant Craig believed he contracted
COVID-19 at work. Second, if allowed to testify, Lynn Craig avowed that
Shepard would corroborate that Sergeant Craig thought he was exposed to
COVID-19 by the unidentified person coughing in his office. Sergeant Craig
told Shepard that the person had tested positive for COVID-19. Lynn Craig
argued that substantial justice required that the testimony be received and
considered by the ALJ. The City of Phoenix argued that the proposed
testimony was unreliable.

¶15 The ALJ denied the admission of the proposed testimony
because it was “essentially cumulative” and “even if allowed, does not
support a factual determination that the unknown individual was COVID
positive.” After considering the evidence received, the ALJ denied
compensability, concluding that Lynn Craig did not meet her burden of
proof. The ALJ affirmed the decision without further findings or
conclusions upon administrative review. This petition for special action
review followed. We have jurisdiction under A.R.S. §§ 12-120.21(A)(2),
23-951(A), and Arizona Rule of Procedure for Special Actions 10.

DISCUSSION

¶16 When reviewing a workers’ compensation award, we defer to
the ALJ’s factual findings but review questions of law de novo. See Young v.
Indus. Comm’n, 204 Ariz. 267, 270, ¶ 14 (App. 2003). We affirm an ALJ’s
findings if any reasonable evidence theory supports them. Perry v. Indus.
Comm’n, 112 Ariz. 397, 398-99 (1975).

¶17 “[D]eath or injury from COVID-19 is compensable where the
statutory requirements for workers’ compensation are met.” W. Millwork v.
Indus. Comm’n, 105 Ariz. Cases Dig. 47, 49, ¶ 1 (App. Sept. 21, 2023). The
claimant seeking benefits must prove by a preponderance of the evidence
that the infection arose out of and in the course of employment. See A.R.S.
§ 23-1021; Yates v. Indus. Comm’n, 116 Ariz. 125, 127-28 (App. 1977); Warner
v. Indus. Comm’n, 78 Ariz. 317, 319 (1955).

¶18 The ALJ found that Lynn Craig failed to establish a
compensable injury. But the ALJ refused to consider all the evidence
offered. The ALJ did not allow testimony from Lynn Craig and Shepard
that Sergeant Craig had told them that someone he met tested positive for
COVID-19. We must determine whether the exclusion of the evidence was
reversible error.

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¶19 “Parties to an Industrial Commission hearing have a
fundamental right to present evidence to support or defend the claim.”
Horan v. Indus. Comm’n, 167 Ariz. 322, 326 (App. 1991); see also Rosovich v.
Indus. Comm’n, 133 Ariz. 374, 375 (1982) (“A claimant should have an
opportunity to develop the evidence relevant to the hearing.”). The Arizona
Rules of Evidence do not apply to a Commission hearing. Instead, a less
formal standard for the admissibility of evidence applies, with the ALJ to
“conduct the hearing in any manner that will achieve substantial justice.”
A.R.S. § 23-941(F). The statute relaxes evidentiary rules “so that the greatest
amount of competent evidence [is] available to the Commission for its
deliberation upon an award.” Gordon v. Indus. Comm’n, 23 Ariz. App. 457,
460 (1975). The statute expands, rather than restricts, the evidence available
to the ALJ. See McBath & Young Wrecking Co. v. Indus. Comm’n, 123 Ariz. 192,
194 (App. 1979).

¶20 The ALJ may admit and rely on hearsay to support its
findings. Coulter v. Indus. Comm’n, 198 Ariz. 384, 387 (App. 2000). To be sure,
policies underlying the rules of evidence guide the ALJ’s evidentiary
rulings. See id. at 388. For example, the ALJ should consider the reliability
of hearsay, its importance, the availability of similar evidence, the reason
for a declarant’s unavailability, and the importance of cross-examination.
Id. But the ALJ’s proceedings must achieve substantial justice. Id.

¶21 Here, the ALJ sustained the hearsay objections and then
denied the offer of proof, concluding that the proffered testimony 1) was
cumulative and 2) did “not support a factual determination that the
unknown individual was COVID positive.” The ALJ reasoned that it had
considered Lynn Craig’s testimony about Sergeant Craig’s meeting with the
unknown person who coughed in his office. But the ALJ allowed that
testimony only for Sergeant Craig’s mental state. The testimony was
admitted for consideration that Sergeant Craig was concerned about
COVID-19 exposure, not for the proposition that Sergeant Craig met with a
co-worker who was coughing in his office and that the person later tested
positive for COVID-19. Similarly, Dr. Smith considered the testimony when
formulating his expert opinion about causation, but the ALJ still had not
admitted the testimony for its truth. The testimony was not cumulative
because it was admitted for a different purpose. Cf. Felipe v. Theme Tech
Corp., 235 Ariz. 520, 526, ¶ 22 (App. 2014) (Evidence is cumulative if it is
more evidence of the same character and supports a fact already established
by other evidence.).

¶22 Lynn Craig and Shepard would have testified that they were
told the unknown co-worker tested positive for COVID-19 shortly after

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meeting with Sergeant Craig. Even though the text message from Sergeant
Craig’s brother supported that someone in the office had COVID-19, the
proffered testimony would add that the coughing person who met with
Sergeant Craig tested positive. Such testimony would be relevant to
determining whether Sergeant Craig was exposed to a COVID-19-positive
individual at work. Thus, the proffered evidence would support Dr. Smith’s
causation theory, which the ALJ found less probable than Dr. Brooks’s
theory.

¶23 We will not presume that the Commission reached the correct
result if it erroneously excluded important evidence on technical grounds.
See Gordon, 23 Ariz. App. at 460-61; Cash v. Indus. Comm’n, 27 Ariz. App.
526, 533 (1976). Erroneously excluding evidence in an Industrial
Commission case is harmless only if the evidence “could not have swayed
the result.” Horan, 167 Ariz. at 326; see also Gordon, 23 Ariz. App. at 460
(“[R]eversible error is more likely to occur by the exclusion of admissible
evidence than the inclusion of incompetent evidence.”). The City asserted
at oral argument that even if it were error for the ALJ to sustain its hearsay
objections, the error was harmless. As explained, the testimony could have
changed the result if heard and found credible.

¶24 The ALJ may assess witness credibility and the weight of a
witness’s testimony. Koval v. Indus. Comm’n, 23 Ariz. App. 277, 279 (1975).
But “it is almost impossible” to make a credibility judgment “from a written
record.” Brooks v. Indus. Comm’n, 24 Ariz. App. 395, 397 (1975). Without
hearing the testimony, the ALJ concluded that the evidence would not
support a factual determination that the unknown individual had
COVID-19. But if credible, the testimony could have swayed the result. See
Horan, 167 Ariz. at 326. Thus, the ALJ’s evidentiary rulings did not achieve
substantial justice. See A.R.S. § 23-941(F).

CONCLUSION

¶25 We set aside the award.

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

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