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.
OPINION
CAMPBELL, JUDGE
¶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.
BACKGROUND
¶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. ...