Bottorff-Dragomir v. american/X L Speacialty

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TANYA BOTTORFF-DRAGOMIR, Petitioner Employee,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

AMERICAN EXPRESS CO, Respondent Employer,

X L SPECIALTY INSURANCE CO, Respondent Carrier.

No. 1 CA-IC 25-0001
FILED 11-24-2025

Special Action - Industrial Commission
ICA Claim No. 20222430166
Carrier Claim No. 4A2209M2CZF-001
The Honorable Jeanne Steiner, Administrative Law Judge

AFFIRMED

COUNSEL

Tanya Bottorff-Dragomir, Glendale
Petitioner Employee

Industrial Commission of Arizona, Phoenix
By Afshan Peimani
Counsel for Respondent

Lundmark Barberich La Mont & Puig PC, Phoenix
By R. Todd Lundmark, David T. Lundmark
Counsel for Respondent Employer and Carrier
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Decision of the Court

MEMORANDUM DECISION

Judge Anni Hill Foster delivered the decision of the Court, in which
Presiding Judge James B. Morse Jr. and Judge Veronika Fabian joined.

F O S T E R, Judge:

¶1 Petitioner Tanya Bottorff-Dragomir challenges the denial of
her claim for workers’ compensation benefits. The Industrial Commission
of Arizona found that she did not experience objectively unexpected,
unusual or extraordinary stress at work and thus did not prove a
compensable mental injury. This Court affirms the award.

FACTS AND PROCEDURAL HISTORY

¶2 This Court views the facts in the light most favorable to
sustaining the Commission’s award. Lovitch v. Indus. Comm’n, 202 Ariz. 102,
105, ¶ 16 (App. 2002).

¶3 Respondent American Express (“AmEx”) employed Bottorff-
Dragomir as a Senior Commercial Loss Mitigation Specialist for many
years. Bottorff-Dragomir worked mainly from home, and most of her work
interactions were through email, texting or video conference.

¶4 In August 2022, Bottorff-Dragomir filed a report of workplace
injury. She claimed she suffered a work-related mental injury based on
repeated psychological abuse by her supervisor, John Hogue. Bottorff-
Dragomir alleged the first instance of Hogue’s conduct that caused her
anxiety occurred during a phone call in September 2021. She stated that
during the call, “Hogue became aggressive, volatile, and demeaning
toward her.” Bottorff-Dragomir raised these concerns to Manpreet Keyser,
a vice president at AmEx, who previously supervised Bottorff-Dragomir
and later supervised Hogue. A second incident occurred in January 2022
when Bottorff-Dragomir alleged Hogue became upset due to a denial of a
personnel request. Bottorff-Dragomir testified that Hogue then directed her
and other senior-level staff to resolve the issue or be subject to performance
plans. Bottorff-Dragomir stated that this behavior made her feel sick to her
stomach. She also claimed that Hogue discouraged her from applying for a
promotion and denied her an interview. After she asked Hogue and Keyser

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for an explanation, Bottorff-Dragomir claimed Hogue yelled at her for
involving Keyser.

¶5 In February 2022, Bottorff-Dragomir attended a series of
performance feedback meetings with her supervisors. During one of these
meetings, Hogue noted in Bottorff-Dragomir’s end-of-year evaluation that
she needed work on her supervisory skills and that she tended to take
things too personally. Bottorff-Dragomir became emotional. In another
meeting, Hogue and Keyser told Bottorff-Dragomir she lacked the
emotional intelligence to understand their decision not to consider her for
a promotion. About a week later, Keyser told Bottorff-Dragomir she could
no longer work from home. Around this time, Bottorff-Dragomir filed a
discrimination complaint with AmEx, which it denied.

¶6 Bottorff-Dragomir sought professional help in March 2022.
Her doctor diagnosed her with Generalized Anxiety Disorder, resulting in
panic episodes related to work activities. A separate doctor subsequently
diagnosed Bottorff-Dragomir with Major Depressive Disorder and PTSD.
Bottorff-Dagomir’s based her claim for workers compensation on these
diagnoses.

¶7 The Commission reviewed Bottorff-Dragomir’s claim and
denied it. Bottorff-Dragomir requested a hearing. The Commission’s
administrative law judge (“ALJ”) heard the appeal over the course of ten
days and allowed subsequent briefing.

¶8 Considering the evidence presented at the hearing and the
briefing, the ALJ found that many of the events Bottorff-Dragomir
experienced were a direct result of performance feedback and job
requirements. The ALJ further explained, citing audio recordings provided
by Bottorff-Dragomir, that there was nothing unexpected, unusual or
extraordinary about the interactions, and that neither Hogue nor Keyser
were abusive, harassing or unprofessional. The ALJ concluded that
Bottorff-Dragomir had not established a compensable injury and denied
her compensation. Bottorff-Dragomir sought reconsideration, and the
Commission affirmed its decision. Bottorff-Dragomir timely appealed, and
this Court accepts jurisdiction. A.R.S. § 12-120.21(B) and 23-951(A).

DISCUSSION

¶9 On appeal, Bottorff-Dragomir contests the denial of two
Motions to Compel, the lack of weight given to her evidence and several
procedural objections. AmEx and Respondent XL argue that ample

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evidence supports the ALJ’s decision and Bottorff-Dragomir raises issues
that she failed to raise below and therefore waived.

¶10 Appellate review is limited “to a determination of whether or
not there is evidence in the record which would justify the finding of the
Commission.” Pac. Fruit Express v. Indus. Comm’n, 153 Ariz. 210, 214 (1987).
“[T]he findings of the administrative law judge and the Commission’s
award must be affirmed if supported by any reasonable theory of the
evidence.” Magma Copper Co. v. Indus. Comm’n, 139 Ariz. 38, 49 (1983). This
Court will uphold evidentiary rulings and enforcement of the workers’
compensation rules of procedures “absent a clear showing of abuse of
discretion.” Nolden v. Indus. Comm’n, 127 Ariz. 501, 504 (App. 1980).

I. Preservation of issues for review.

¶11 Bottorff-Dragomir bore the burden to “develop [the] factual
record before the [Commission] and give the ALJ the opportunity to correct
any legal error” by raising specific objections. T.W.M. Custom Framing v.
Indus. Comm’n, 198 Ariz. 41, 44, ¶ 4 (App. 2000). Thus, issues on appeal not
raised before the Commission are generally not subject to review. See id.
However, even if the record contains no objection, this Court may review
the foundational issue of whether sufficient evidence supports the award.
Id.

¶12 On appeal, Bottorf-Dragomir raises several procedural
objections for the first time. She argues the ALJ improperly denied
protective orders and motions to compel. She also questions the ALJ’s
impartiality. Because Bottorf-Dragomir did not raise these issues with the
Commission, this Court will not review them. Stephens v. Indus. Comm’n,
114 Ariz. 92, 94 (App. 1977). But this Court, in its discretion, will address
Bottorf-Dragomir’s claim of “unequal treatment” by the ALJ due to her
exclusion of Hogue’s prior convictions while admitting an independent
medical exam regarding Bottorf-Dragomir’s health. This Court exercises its
discretion on this issue because the rulings were directly related to the
elements necessary to establish eligibility for benefits.

II. The Commission’s decision is supported by the record.

A. Sufficiency of the evidence

¶13 Bottorff-Dragomir asserts that the ALJ erred in denying
compensation because evidence establishes that the cause of her injury was
an unexpected, unusual or extraordinary stress. See A.R.S. § 23-1043.01(B).

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¶14 To prove a compensable mental injury, a claimant must show
that the work-related stress was both: (1) a “substantial contributing cause”
of the injury; and (2) “unexpected, unusual or extraordinary.” A.R.S. § 23-
1043.01(B). Whether stress experienced by a worker is unexpected, unusual
or extraordinary “is determined ‘from the standpoint of a reasonable
employee with the same or similar job duties and training as the claimant.’”
Lawless v. Indus. Comm’n, ___ Ariz. ___, ¶ 24, 571 P.3d 349, 353, ¶ 24 (App.
2025) (citation omitted). Stress inherent in employment is not unexpected,
unusual, or extraordinary. Id.

¶15 Mental injuries caused by “the many differences and
irritations to which all employees are subjected” are not compensable as
workers’ compensation injuries. Lapare v. Indus. Comm’n, 154 Ariz. 318, 320
(App. 1987) (citation omitted). Similarly, even when an employee
experienced “a buildup of emotional stress for a period of years preceding
the day [the employee] walked off the job,” this Court concluded “[t]he
conflicts [the employee] experienced were part of the usual, ordinary and
expected incidents of [] employment.” Shope v. Indus. Comm’n, 17 Ariz. App.
23, 25 (1972).

¶16 Several witnesses, colleagues and supervisors who were
present at meetings, testified they did not observe Hogue mistreating
employees, including Bottorff-Dragomir. Additionally, the audio evidence
produced by Bottorff-Dragomir contradicted her assertions of what
occurred during her meetings with Hogue and Keyser. This Court assumes
that the ALJ weighed the credibility of the witnesses and will not disturb
the ALJ’s findings on appeal, absent an abuse of discretion. Perry v. Indus.
Comm’n, 112 Ariz. 397, 398 (1975) (appellate courts do not independently
review the evidence or make credibility determinations).

¶17 Sufficient evidence supports the ALJ’s finding that Bottorff-
Dragomir did not prove the work-related stress was unexpected, unusual
or extraordinary. Although Bottorff-Dragomir claimed she felt “sick” and
that her supervisors’ actions were a “mental assault on her” the objective
nature of the legal test does not consider Bottorff-Dragomir’s subjective
feelings. France v. Indus. Comm’n, 250 Ariz. 487, 491, ¶ 19 (2021). Thus, the
ALJ did not abuse her discretion in finding a reasonable employee would
not have found the work-related stress to be unexpected, unusual or
extraordinary.

¶18 Although the ALJ discussed the medical reports in her
findings, the ALJ determined that the injury was not “unexpected, unusual,
or extraordinary” such that it supported medical causation. Therefore, this

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Court rejects Bottorff-Dragomir’s argument that the ALJ should have
considered the medical evidence.

B. Allegations of unequal treatment

¶19 Bottorff-Dragomir argues that the ALJ compelled “unequal
treatment” and acted with bias by improperly excluding evidence of
Hogue’s prior convictions and admitting an independent medical exam
regarding her health.

¶20 Bottorff-Dragomir attempted to admit evidence of Hogue’s
prior convictions to support her claim that she was the subject of
“unexpected, unusual or extraordinary stress” related to her employment.
A.R.S. § 23-1043.01(B). Bottorff-Dragomir claimed the convictions
established “some basis for why I feel the way I feel.” The ALJ explained to
Bottorff-Dragomir that the convictions were over 13-years old and therefore
not proper evidence to impeach Hogue’s character. The ALJ further
explained that Bottorff-Dragomir would have the chance to cross-examine
Hogue and could try to establish her injury.

¶21 Conversely, the ALJ allowed Respondents to admit an
untimely amended independent medical report. A.A.C. R20-5-155(A). The
Arizona Administrative Code requires submission of a medical report 25
days before the first scheduled hearing. A.A.C. R20-5-155(A). However, an
ALJ may suspend the rule if there is a showing of good cause or the parties
agree. A.A.C. R20-5-155(A).

¶22 At a hearing on December 13, 2023, Bottorff-Dragomir
objected to admission of the amended report. Alternatively, she proposed
that if the ALJ admitted the report, her doctors, Dr. Bradley Williams and
Dr. Michael Rockwell, be allowed to testify. Bottorff-Dragomir explained
that if the ALJ accepted late reports from Respondent’s counsel, then her
medical testimony should also be heard. The ALJ then allowed Dr.
Rockwell and Dr. Williams to testify.

¶23 An ALJ is not bound by common law or statutory rules of
evidence or procedure but must conduct a hearing “in any manner that will
achieve substantial justice.” A.R.S. § 23-941(F). Based on the record, this
Court discerns no error or unequal treatment. The ALJ’s determination of
relevance regarding Hogue’s convictions fell within the ALJ’s discretion.
Additionally, the record shows that Bottorff-Dragomir agreed to the
admission of the independent medical report. A.A.C. R20-5-155(E)(2) (the

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ALJ may suspend medical and non-medical reports filed into evidence “[i]f
the parties agree that the judge may accept the medical report into
evidence”).

C. Other issues raised

¶24 To the extent that Bottorff-Dragomir appeals other objections
raised during the hearing process, this Court finds no reversible error. For
example, Bottorff-Dragomir contends that the ALJ should have allowed her
husband to assist her during witness testimony because she was
representing herself. But Bottorf-Dragomir’s request for assistance came
after she demonstrated an ability to ask relevant questions of witnesses on
direct and cross-examination. That ruling was within the sound discretion
of the ALJ, and this Court will not disturb it. See Perry, 112 Ariz. at 398. This
Court’s review of the record reveals the ALJ provided Bottorff-Dragomir
the opportunity to fully present her relevant evidence such that the hearing
provided substantial justice. A.R.S. § 23-941(F).

CONCLUSION

¶25 This Court affirms the award.

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

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