                                 IN THE
             ARIZONA COURT OF APPEALS
                              DIVISION ONE


                       BENJAMIN PITTS, Petitioner,

                                     v.

      THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

               CITY OF CHANDLER, Respondent Employer,

         CORVEL ENTERPRISE CORP. INC., Respondent Carrier.

                           No. 1 CA-IC 18-0005
                             FILED 3-21-2019


                  Special Action - Industrial Commission

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

                          AWARD SET ASIDE


                                COUNSEL

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
                     PITTS v. CHANDLER/CORVEL
                          Opinion of the Court



                                OPINION

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


C A M P B E L L, Judge:

              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 post-
traumatic 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

               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.

              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.




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                      PITTS v. CHANDLER/CORVEL
                           Opinion of the Court

              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.

               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.

              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.

              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.

               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.
The ALJ held a hearing, limited to the issue of timeliness, and heard
testimony from Pitts and his fiancée.

            Pitts’ fiancée testified that she had lived with Pitts since the
incident and witnessed the May 2013 shooting. She explained that
sometime in July 2015, Pitts began to disassociate, hide in his room, and
stop communicating, doing chores, or getting dressed for the day. He



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                           Opinion of the Court

appeared depressed and quit interacting with his children. His fiancée
testified that Pitts became hypervigilant about his family’s safety.

               Following the hearing, the ALJ determined Pitts’ claim was
untimely and that the ICA thus lacked jurisdiction. Pitts timely requested
administrative review, and the ALJ supplemented and affirmed the
decision. Pitts next brought this special action.

                               DISCUSSION

              Pitts asserts that the ALJ erred in finding his claim untimely,
arguing that he did not know of his condition until early 2016 when he was
diagnosed with PTSD and began treatment. The City and the Carrier
respond that the ALJ correctly concluded that Pitts knew both the nature
and seriousness of his injury within one year of the incident. Because
neither the City nor the Carrier presented adequate evidence to support a
finding that the claim was untimely, we set aside the award.

              A workers’ compensation claim must be filed “within one
year after the injury occurred or the right thereto accrued.” A.R.S. § 23-
1061(A). A compensable injury becomes manifest—and the one-year period
begins to run—when the injured employee recognizes the nature of his
injury, the seriousness of the injury, and the probable causal relationship
between the injury and the employment. Pac. Fruit Express v. Indus. Comm’n,
153 Ariz. 210, 214 (1987). The ALJ considers these factors together to
determine “when the claimant knew or should have known that he
sustained a compensable injury.” Id.; see A.R.S. § 23-1061(A). This rule
allows compensation for an injury that manifests and becomes
compensable sometime after the triggering event. See Henry v. Indus.
Comm’n, 157 Ariz. 67, 70 (1988) (holding that a claim filed by a police officer
24 years after a traumatic incident was timely when “the condition [of
PTSD] was not diagnosable at the time [the claimant] first sought
treatment”).

              The party opposing the claim based on timeliness of filing
under A.R.S. § 23-1061(A) must raise the issue as an affirmative defense.
Allen v. Indus. Comm’n, 152 Ariz. 405, 412 (1987) (“The one-year filing
requirement is in the nature of an affirmative defense and will be deemed
waived unless timely asserted.”); see Ariz. R. Civ. P. 8(d)(1)(P). That party
then bears the burden of production of evidence to support the affirmative
defense. Nat’l Bank of Ariz. v. Thruston, 218 Ariz. 112, 119, ¶ 26 (App. 2008);
see Hughes Aircraft Co. v. Indus. Comm’n, 125 Ariz. 1, 4 (App. 1979) (“While
the Rules of Civil Procedure do not apply to Industrial Commission



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                           Opinion of the Court

proceedings, the rationale [therein] .. . . [is] equally applicable to both
proceedings . . . .”). In this instance, the City and the Carrier were
responsible for producing sufficient evidence to support a determination of
when the injury manifest to the degree that it became a compensable injury,
which would trigger the running of the one-year statute of limitations.

               As the trier of fact, the ALJ reviews the evidence presented to
determine when a compensable injury manifests and the statute of
limitations begins to run. Pac. Fruit Express, 153 Ariz. at 214. On appeal, this
court limits its review to whether the record supports the ALJ’s finding. Id.
We will affirm so long as reasonable evidence supports the award, viewing
the record in the light most favorable to the ALJ’s decision. Delgado v. Indus.
Comm’n, 183 Ariz. 129, 131 (App. 1994). Here, the ALJ found that Pitts’ claim
was untimely based solely on testimony from Pitts and his fiancée. The
ALJ’s conclusion, in relevant part, read as follows:

       Here . . . the applicant knew, in the year following the
       shooting incident that he was missing more time from work
       than previously, for reasons related to the shooting. He had
       constant difficulty sleeping, nightmares, emotional instability
       and social withdrawal throughout the first year following the
       incident. Those symptoms only increased over the next
       eighteen months, which finally led the applicant to see his
       primary care doctor in December 2015 to get sleep
       medication. While he may not have known what was
       happening to him . . . he did not seek medical or psychological
       help with his symptoms between June, 2013, and December,
       2015, though there is no evidence that he was prevented from
       doing so. . . . Based on all the foregoing, it is found that the
       applicant’s claim was untimely filed . . . .

               In contrast to many physical injuries where a diagnosis is
immediate and obvious, the emergence of a mental health injury is difficult
to pinpoint. See City of Glendale v. Indus. Comm’n, 1 CA-IC 17-0049, 2018 WL
2676431, at *3, ¶ 17 (Ariz. App. June 5, 2018) (mem. decision) (“[A testifying
doctor] stated that she reached a ‘tentative’ diagnosis of PTSD at her first
appointment with the claimant . . . [but likely did not immediately] share[]
her diagnosis with the claimant . . . because she needed to gather and verify
his symptoms.”). The Diagnostic and Statistical Manual of Mental Disorders
(“DSM-5”), included in the hearing file and cited in Pitts’ psychological
reports, sets forth a complex diagnosis scheme for PTSD, noting that “[t]he
essential feature of [PTSD] is the development of characteristic symptoms



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                      PITTS v. CHANDLER/CORVEL
                           Opinion of the Court

following exposure to one or more traumatic events.” Am. Psychiatric
Ass’n, Diagnostic and Statistical Manual of Mental Disorders 274 (5th ed. 2013).

               Characteristic symptoms of PTSD after exposure to a
traumatic event are defined in the DSM-5 and include the presence of the
following: “intrusion symptoms” such as recurrent distressing dreams or
memories or prolonged psychological distress after exposure to stimuli
related to the traumatic event; persistent avoidance of stimuli associated
with the event, such as internal or external reminders; negative alterations
in cognition and mood, such as memory loss of the event, lowered self-
esteem, or detachment from others; marked alterations in personality;
clinically significant impairment in important areas of functioning; and that
any of these characteristic disturbances exceed one month and are not
attributable to any other cause. Id. at 271-72.

            While PTSD is a specific diagnosis with characteristic
symptoms, the DSM-5 instructs that the presentation of symptoms varies
widely:

       In some individuals, fear-based re-experiencing, emotional,
       and behavioral symptoms may predominate. In others,
       anhedonic or dysphoric mood states and negative conditions
       may be most distressing. In some other individuals, arousal
       and reactive-externalizing symptoms are prominent, while in
       others, dissociative symptoms predominate. Finally, some
       individuals exhibit combinations of these symptom patterns.

Id. at 274.

                To complicate the issue further, the concept of “delayed
expression” recognizes that while some symptoms immediately appear,
there may be a delay—spanning months or even years—in meeting full
criteria for a PTSD diagnosis. Id. at 276; Howe v. Indus. Comm’n, 1 CA-IC 17-
0002, 2018 WL 1004292, at *3, ¶ 15 (Ariz. App. Feb. 22, 2018) (mem. decision)
(“DSM-5 includes a diagnosis for delayed PTSD in which symptoms do not
manifest for at least six months after the traumatic event.”). See Underwood
v. Zurich Ins. Co., 854 S.W.2d 94, 96, 99 (Tenn. 1993) (discussing a workers’
compensation suit where a psychiatrist reported that the claimant’s PTSD
symptoms were “subtle in onset”). With these considerations in mind, fact-
intensive medical determinations are especially important when ruling on
the timeliness of a workers’ compensation claim involving PTSD. See
Brunell v. Wildwood Crest Police Dep’t, 822 A.2d 576, 599-600 (N.J. 2003).




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                     PITTS v. CHANDLER/CORVEL
                          Opinion of the Court

             In this case, the record shows that Pitts experienced a
traumatic incident. He then developed symptoms that increased in nature
and severity over a period of years. Pitts was not diagnosed with PTSD,
however, until January 2016, and the Carrier did not present evidence to
show that his symptoms had become acute enough to allow a diagnosis of
PTSD before that time.

              Despite the complex nature of a PTSD diagnosis, neither the
City nor the Carrier offered the necessary evidence to allow the ALJ to
resolve when the injury became compensable or when Pitts knew or should
have known that his injury had become acute enough to constitute a
compensable claim. While the ALJ found that Pitts understood he missed
work “for reasons related to the shooting” immediately following the
incident, no evidence of record supports a finding that he knew or should
have known of his condition at the time of the shooting or at any specific
time thereafter when he began to avoid work. Pitts concedes he did not seek
medical or psychological help with his symptoms in the years immediately
following the shooting. However, neither the City nor the Carrier—who
bear the burden of production in their affirmative defense—presented
evidence to identify at what point in time Pitts’ condition required him to
do so. Cf. Pac. Fruit Express, 153 Ariz. at 212-13 (affirming a finding of
timeliness when the ALJ identified the precise medical test after which the
claimant knew or should have known his hearing loss was a compensable
injury).

               Furthermore, the record does not indicate a point (other than
the date Pitts was diagnosed as having PTSD) at which Pitts’ symptoms had
progressed to the point that a diagnosis would have been possible. Due to
the complex nature of a PTSD diagnosis, expert testimony is generally
required to assess when such a diagnosis could have been made. See Tronsen
v. Indus. Comm’n, 18 Ariz. App. 149, 150 (1972) (noting that when the answer
to a question of fact is within the purview of medical experts, an ALJ must
generally rely on testimony from such experts); Cash v. Indus. Comm’n, 27
Ariz. App. 526, 532 (1976). Here, the sole witnesses at the administrative
hearing were Pitts and his fiancée. No expert testimony was presented to
support the conclusion that Pitts could have been diagnosed earlier than
January 2016 or whether someone with PTSD would be more or less likely
to understand the severity of the symptoms and seek treatment for the
condition.

             The City and the Carrier failed to meet their burden of
proving the claim untimely. They submitted no competent evidence to
allow the ALJ to ascertain when Pitts’ claim became compensable and when


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                     PITTS v. CHANDLER/CORVEL
                          Opinion of the Court

he knew or should have known it had become compensable, as required to
identify the date on which the clock on the one-year limitation began to run.
On this record, the ALJ’s finding of untimeliness was not supported by the
record and Pitts was entitled to a hearing on the merits.

                              CONCLUSION

             For the foregoing reasons, we set aside the ALJ’s award.




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




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