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Pitts v. The Industrial Commission of Arizona

Court of Appeals of Arizona, First Division

March 21, 2019


          Special Action - Industrial Commission ICA Claim No. 20163-060226 Carrier Claim No. CN-13-005314 The Honorable Layna Taylor, Administrative Law Judge

          Law Offices of Robert E. Wisniewski, Phoenix By Robert E. Wisniewski Counsel for Petitioner Industrial Commission of Arizona, Phoenix By Gaetano J. Testini Counsel for Respondent, ICA

          Jones, Skelton & Hochuli, PLC, Phoenix By Gregory L. Folger, Sean M. Moore Counsel for Respondents Employer and Carrier

          Presiding Judge Jennifer B. Campbell delivered the opinion of the Court, in which Judge Paul J. McMurdie and Judge Kent E. Cattani joined.



         ¶1 This is a special action review of an Industrial Commission of Arizona ("ICA") award and decision upon review of Benjamin Pitts' workers' compensation claim. The sole issue presented on appeal is whether Pitts' claim for workers' compensation benefits, based on posttraumatic stress disorder ("PTSD"), was untimely under Arizona Revised Statutes ("A.R.S.") section 23-1061(A). Because insufficient evidence supported the ALJ's finding of untimeliness, we set aside the award.


         ¶2 Pitts worked for the City of Chandler as a police officer between July 2002 and April 2017. In May 2013, Pitts was on duty in his patrol vehicle with his fiancée, who was participating in a ride-along. That evening, Pitts received a service call. Dispatch explained there was a man acting in a disorderly manner and possibly brandishing a gun outside Chandler Regional Hospital. The dispatcher told Pitts the man was walking up the road with hospital security guards following at a distance. Upon arriving in his patrol car, Pitts directed his spotlight at a man fitting the suspect's description. The man then stopped, leveled his gun, and fired. The first bullet shattered the windshield, spraying glass toward Pitts' face and eyes. As multiple bullets continued to pelt the car, Pitts got out and returned fire. Pitts shot the man in the shoulder, ending the gunfight. Neither Pitts nor his fiancée were injured by the spray of bullets.

         ¶3 Pitts took three weeks off work after the incident. A week or two into his leave, his superiors required him to see the police department psychologist, who advised Pitts to "get back on that horse." Although Pitts told the department psychologist he felt unready to work, he resumed his duties a week later. The department psychologist did not provide a diagnosis at that time, and Pitts did not seek or receive any additional treatment related to the shooting incident.

         ¶4 Almost a year later, the man went on trial for shooting at Pitts. Pitts attended the three-week trial daily and testified about the events of that evening. The shooter was convicted and sentenced to over 50 years in prison.

         ¶5 Between the shooting incident and the trial, Pitts experienced emotional problems, including difficulty sleeping and nightmares, anxiety, and social withdrawal. Pitts also became hypervigilant-constantly assessing potential threats to his safety and that of his family. A year after the trial, the shooter's sentence was reduced. Pitts testified at the hearing that the sentence reduction was a "gut punch." In his opinion, the reduction in sentence was based solely on a legal technicality. Over the next six months, Pitts' depression worsened: he lost interest in his children and home life, began having panic and anxiety attacks at work, and experienced tunnel vision, insomnia, dissociative episodes where he lost track of time, and a hollow echoing sound in his ears.

         ¶6 On December 28, 2015, Pitts visited his primary care doctor to obtain sleep medication. The doctor's note from that visit states, "[p]robable PTSD," and opined that Pitts needed to see a psychologist for evaluation. In the ICA proceeding that eventually followed, Pitts testified he did not recall the doctor mentioning the need for psychological treatment.

         ¶7 At the recommendation of fellow officers, Pitts saw a trauma psychologist in January 2016. This was the first time a medical professional diagnosed him with dissociative complex PTSD related to the shooting incident. Based on this medical assessment, he was taken off patrol duty. The trauma psychologist's treatment summary shows that his initial visit occurred on January 21, 2016, with a diagnosis that day or soon thereafter.

         ¶8 Shortly before seeing the trauma psychologist, Pitts made an injury report to Corvel Enterprise Corp., Inc. (the "Carrier"). It was not until the Carrier refused to pay his medical bills that Pitts decided to pursue a workers' compensation claim. On October 27, 2016, he filed a worker's report of injury for PTSD stemming from the shooting incident. The Carrier again denied his claim for benefits, and he timely requested an ICA hearing. ...

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