tempe/tempe v. Berner

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

CITY OF TEMPE, Petitioner Employer,

CITY OF TEMPE, Petitioner Carrier,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

LAURA BERNER, Respondent Employee.

No. 1 CA- IC 24-0054
FILED 01-22-2026

Special Action - Industrial Commission
ICA Claim No. 20230950410
Carrier Claim No. 231086363
The Honorable Trudy Rushforth, Administrative Law Judge

AWARD SET ASIDE

COUNSEL

Ritsema Law, Phoenix
By Meghann Fawcett
Counsel for Petitioner Employer and Carrier

Industrial Commission of Arizona, Phoenix
By Afshan Peimani
Counsel for Respondent
Grajeda Weinstein, Phoenix
By Javier C. Grajeda
Counsel for Respondent Employee

OPINION

Presiding Judge Jennifer M. Perkins delivered the opinion of the Court, in
which Vice Chief Judge David D. Weinzweig and Judge Cynthia J. Bailey
joined.

P E R K I N S, Presiding Judge:

¶1 In this special action, we review an Industrial Commission of
Arizona (“ICA”) award. The City of Tempe challenges an administrative
law judge’s (“ALJ”) decision that Tempe Police Department Officer Laura
Berner suffered a compensable mental injury from unexpected, unusual, or
extraordinary work-related stress. For the following reasons, we set aside
the award.

FACTS AND PROCEDURAL HISTORY

¶2 We view all facts in the light most favorable to sustaining the
award. Lawless v. Indus. Comm’n, __ Ariz. __, __, ¶ 2, 571 P.3d 349, 350 (App.
2025).

¶3 Berner had served as a Tempe patrol officer for nine years
when she responded to an emergency call at a Tempe apartment complex
in July 2022. Two victims had been shot in the face and the suspect was at
large. Both victims ultimately survived. When Berner arrived, other officers
were tending to both victims. An officer told Berner the suspect was in a
nearby apartment and asked her to report the suspect’s location on the
radio, but Berner “froze,” and the other officer radioed the information
instead.

¶4 Berner joined several officers and entered the apartment,
where they found the suspect dead from a self-inflicted gunshot wound.
Berner then secured the scene and procured nearby surveillance footage.

¶5 As a result of this incident, Berner stopped working as a
police officer by the end of 2022. In March 2023, she was diagnosed with
post-traumatic stress disorder (“PTSD”). The following month, she filed a

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worker’s compensation injury report, which Tempe denied. Berner
protested the denial, and the ICA set the matter for a hearing.

¶6 At the hearing, Berner testified to her experience during the
July 2022 incident. She called former Sergeant Mike Carleton, a 21-year
Tempe Police Department veteran, as a witness. Carleton retired in 2020
and started a business that provides mental health resources to first
responders. His employment with Tempe overlapped with Berner’s and he
testified that they occasionally responded to the same calls.

¶7 Carleton testified that the July 2022 event was unexpected,
unusual, and extraordinary. He described the incident as a “mass casualty
event” that warranted a “priority zero” response, requiring all available
officers to respond. Carleton explained that “murder-suicides” are not
common in Tempe. He testified Tempe is a small college town in which
typical crimes involve college brawls, not attempted homicides with
multiple victims, but acknowledged the Tempe Police Department interacts
with and assists the Phoenix Police Department.

¶8 In response, Tempe called Jack Harris, a former Phoenix
Police Department chief of police with almost forty years of experience with
that department. Harris testified that violent situations like the July 2022
event are not uncommon or unusual for any police officer, that officers
regularly train for these scenarios, and that Berner performed standard
duties at the scene. Harris also testified that shooting deaths in Phoenix
increased dramatically throughout his career, and that Tempe and Phoenix
police officers often respond to the same scenes.

¶9 The ALJ found that Carleton’s and Harris’ testimony
conflicted on whether this type of incident is unexpected, unusual, or
extraordinary. And she resolved the conflict in Carleton’s favor because of
his “experience working in the Tempe Police Department, the same
department [Berner] worked for,” but did not make a credibility
determination. The ALJ adopted Carleton’s opinion that the incident was
“unusual, extraordinary, and unexpected for an officer patrolling in
Tempe” and concluded that Berner’s mental injury was compensable.

¶10 Tempe asked for administrative review and, after
reconsideration, the ALJ summarily affirmed her decision. Tempe then filed
this statutory special action. We have jurisdiction. A.R.S. §§ 12-120.21(A)(2),
23-951(A).

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DISCUSSION

¶11 We defer to the ALJ’s factual findings but review her legal
conclusions de novo. Lawless, __ Ariz. at __, ¶ 23, 571 P.3d at 353. To prove a
compensable mental injury, an injured worker must show: (1) work-related
stress was a “substantial contributing cause” of the injury, and (2) the stress
was “unexpected, unusual or extraordinary.” A.R.S. § 23-1043.01(B).

¶12 The parties do not dispute that Berner had PTSD, or that
work-related stress was a substantial contributing cause. They dispute only
whether the stress was objectively unexpected, unusual, or extraordinary
and therefore compensable.

¶13 Whether work-related stress is unexpected, unusual, or
extraordinary is “a legal conclusion, not a medical one.” Barnes v. Indus.
Comm’n, 156 Ariz. 179, 182 (App. 1988). We evaluate a claimant’s stress
objectively “from the standpoint of a hypothetical reasonable person with
the same or similar job duties as the claimant,” and not from the claimant’s
subjective experience. France v. Indus. Comm’n, 250 Ariz. 487, 491, ¶ 19 (2021)
(cleaned up). When the claimant is a law enforcement officer, we assess the
event from the perspective of another law enforcement officer. Id. at 492,
¶ 24.

¶14 Tempe argues the ALJ did not apply the objective standard in
finding Berner’s stress was unexpected, unusual, or extraordinary because
she failed to cite relevant law, based her analysis on a narrow comparison
of the Tempe and Phoenix police departments, and improperly adopted the
testimony of Carleton, who was “biased” as “a mental health advocate.”
Alternatively, Tempe argues the award was “wholly unreasonable.”

¶15 The ALJ adopted Carleton’s opinion—that the incident was
unusual, unexpected, and extraordinary for a Tempe patrol officer based
on Tempe’s smaller size and lower crime rate—not because Carleton was
more credible than Harris, but only because he had “experience working in
the Tempe Police Department, the same department [Berner] worked for.”
This was error under the standard articulated in France.

¶16 In France, a Gila County deputy developed PTSD after a
routine welfare check turned into a deadly gunfight. Id. at 488–89, ¶¶ 3–5.
The record showed such incidents were “exceedingly rare” for “a law
enforcement officer.” Id. at 491–92, ¶ 21. The record included testimony
from several experienced law enforcement officers that they had never been
in gunfights themselves and evidence that officer-involved shootings were
“extremely rare” in Gila County. Id. at 492, ¶ 21. The France court concluded

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the incident was unexpected, unusual, or extraordinary because the record
showed the incident was “not the type of incident that is part of a law
enforcement officer’s daily routine.” Id.

¶17 Under France, an ALJ may not limit her evaluation of an
officer’s stress to that of a reasonable person from the same department as
the officer. The proper inquiry considers the stress from the standpoint of a
reasonable law enforcement officer more generally. See id. at 491, ¶ 19. This
is evident in the France court’s repeated conclusions that the event was
objectively unexpected, unusual, or extraordinary for “a law enforcement
officer” generally and not for a Gila County law enforcement officer
specifically. Id. at 491–92, ¶¶ 21–24.

¶18 To be sure, jurisdiction-specific evidence can be relevant in
determining whether an event is unexpected, unusual, or extraordinary for
the typical law enforcement officer. Such was the case in France, in which
the record contained some evidence specific to Gila County. But that
evidence was offered as an example to show the event was rare for the
average law enforcement officer, not for the average Gila County deputy.
Id. at 492, ¶ 21. Put another way, evidence that an incident is unexpected,
unusual, or extraordinary for a particular jurisdiction can be a factor for
evaluating stress from the perspective of a typical law enforcement officer.
But it cannot be the only factor.

¶19 The objective standard does not permit an ALJ to find that an
incident is unexpected, unusual, or extraordinary for a law enforcement
officer based solely on jurisdictional lines. To hold otherwise would be
incompatible with the objective standard stated in France and could create
arbitrary disparities between officers from different departments. See Shelby
Sch. v. Ariz. State Bd. Of Educ., 192 Ariz. 156, 169, ¶ 65 (App. 1998) (equal
protection principles “require that all persons in a given class be treated
equally and that the classification is reasonable and not arbitrary or
capricious.”). For example, consider an incident involving responding
officers from both the Tempe and Phoenix police departments. The officers
perform the same duties, experience the same stress from the same event,
and are both diagnosed with PTSD. But if jurisdictional evidence could be
the sole factor in whether stress is unusual, unexpected, or extraordinary,
an ALJ could find the Tempe officer’s PTSD compensable, but not the
Phoenix officer’s PTSD.

¶20 The ALJ erred by adopting Carleton’s opinion solely because
he had worked for Tempe and Harris for Phoenix. Which in turn means the
ALJ erred by concluding that the stress was unusual, unexpected, and

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extraordinary for a Tempe officer as opposed to an average law
enforcement officer with the same or similar duties as Berner. Because we
hold the ALJ did not properly apply the objective standard for the reasons
stated above, we need not address Tempe’s other arguments.

CONCLUSION

¶21 We set aside the award.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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