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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                  TODD PASCARELLA, Plaintiff/Appellee,

                                        v.

     MESA POLICE PENSION BOARD, et al., Defendants/Appellants.

                             No. 1 CA-CV 19-0086
                               FILED 1-14-2020


           Appeal from the Superior Court in Maricopa County
                        No. LC2018-000049-001
                 The Honorable Patricia A. Starr, Judge

                                  AFFIRMED


                                   COUNSEL

Yen Pilch & Landeen, P.C., Phoenix
By Neil Landeen
Counsel for Plaintiff/Appellee

Ryan Rapp & Underwood, P.L.C., Phoenix
By David L. Niederdeppe, Cynthia K. Kelley
Counsel for Defendants/Appellants
                    PASCARELLA v. MESA POLICE, et al.
                          Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge James B. Morse Jr. and Judge Diane M. Johnsen joined.


J O N E S, Judge:

¶1           The Mesa Police Pension Board (the Board) appeals from the
superior court’s judgment reversing the Board’s denial of Todd Pascarella’s
application for an accidental disability pension pursuant to Arizona
Revised Statutes (A.R.S.) § 38-844(B). For the following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2             Pascarella worked as a police officer for the City of Mesa (the
City) from the end of 2005 through the summer of 2017.1 As such, he was a
member of Arizona’s Public Safety Personnel Retirement System (APSPRS)
and eligible to apply for an accidental disability pension if his employment
was terminated “by reason of accidental disability.” A.R.S. § 38-844(B).2
Accidental disability is defined by statute as “a physical or mental condition
that the local board finds totally and permanently prevents an employee
from performing a reasonable range of duties within the employee’s job
classification and that was incurred in the performance of the employee’s
duty.” A.R.S. § 38-842(1).

¶3            In August 2017, Pascarella applied for an accidental disability
pension from APSPRS, identifying “PTSD, major depressive disorder,
panic disorder, [and] generalized anxiety” as the nature and cause of his
disability, and citing August 31, 2016 as the date of the “disabling event.”
Pascarella also attached an “injury timeline” to his application that
explained the circumstances he believed were relevant to his claim.



1      “We view the evidence in the light most favorable to upholding the
[Board’s decision].” See Hosea v. City of Phx. Fire Pension Bd., 224 Ariz. 245,
248, ¶ 10 (App. 2010) (citing Weller v. Ariz. Dep’t of Econ. Sec., 176 Ariz. 220,
224 (App. 1993)).

2     Absent material changes from the relevant date, we cite a statute’s
current version.


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                  PASCARELLA v. MESA POLICE, et al.
                        Decision of the Court

¶4            According to Pascarella’s timeline, in August 2016, the City
began investigating his conduct during an on-duty incident that occurred
in June. As the investigation proceeded, Pascarella began to fear he would
lose his job. These circumstances caused him overwhelming stress and
were the “onset of [his] symptoms.” On August 30, Pascarella was put on
administrative leave pending the outcome of the investigation. The
following day, Pascarella’s attorney advised him that the City had concerns
about his June conduct. That news caused Pascarella to “f[a]ll into a major
depressive state, suffer[] anxiety, . . . hav[e] panic attacks[,] . . . [and
experience] sleeping problems.” Pascarella also alleged the “entire
investigation was motivated by revenge” since Pascarella was
unknowingly recorded criticizing fellow officers’ response to a situation
involving Pascarella’s and an officer-in-training’s pursuit of a murder
suspect in March 2015.

¶5            Pascarella also submitted medical records to support his
accidental disability pension application. According to the records,
Pascarella’s primary care physician prescribed him medication for anxiety
within a few weeks after Pascarella learned he might be disciplined.
Pascarella also related a March 2017 incident in which he experienced
stress-related gastrointestinal bleeding. A few months later, Pascarella
sought psychiatric treatment for stress, which he asserted was caused by
being “charged inappropriately” in the internal affairs investigation.

¶6             After reviewing Pascarella’s application, the Board
determined that his disabling condition, namely PTSD, arose from the
internal affairs investigation rather than a “line of duty triggering event.”
Accordingly, the Board found the condition was not “incurred in the
performance” of his duty as a police officer and did not qualify as an
accidental disability within the meaning of A.R.S. § 38-842(1). See
Procedures of the Mesa Fire and Police Pension Boards (Procedures), at ¶
12         (discussing         disability        benefit        applications),
https://www.mesaaz.gov/home/showdocument?id=19642 (last visited
Jan. 7, 2020); https://www.mesaaz.gov/city-hall/advisory-boards-
committees/public-safety-personnel-retirement-system                  (follow
“Procedures” hyperlink). After the Board denied his application, Pascarella
applied for and was granted a rehearing. See A.R.S. § 38-847(H);
Procedures, at ¶ 17.

¶7            At the rehearing, Pascarella suggested the disabling event
was the March 2015 pursuit of the murder suspect, rather than the August
2016 internal affairs investigation as he had originally claimed. Pascarella
explained that in March 2015, he was training a “rookie that [he]’d known


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                  PASCARELLA v. MESA POLICE, et al.
                        Decision of the Court

only a few days” when the rookie had to ram the patrol vehicle, in which
Pascarella was a passenger, into a murder suspect’s vehicle to prevent the
suspect from harming children on a nearby elementary school playground.
Pascarella described the incident, explaining they had to “use force [to] stop
this guy at all costs,” which was “not normal.” He also felt “helpless” based
on his perception that other officers at the scene did not respond
appropriately.

¶8            Pascarella offered additional medical documentation to
support the March 2015 injury date, including an August 18, 2017 letter
from a psychiatrist, Dr. Rosengard. According to Dr. Rosengard, Pascarella
suffered from PTSD, depression, generalized anxiety disorder, and panic
attacks stemming from “a critical incident in March of 2015 and subsequent
repercussions that were taken against [Pascarella] for actions that seemed
to be otherwise appropriate.”3 Dr. Rosengard also explained the role of the
internal investigation in Pascarella’s mental condition, adding:

       As a continuation of this [critical March 2015 incident], there
       was another incident where [Pascarella] w[as] treated badly
       by [his] management and that further exacerbated an already
       fragile mental state. As a result of the initial critical incident
       further magnified by the second incident [Pascarella] w[as] in
       a state that disable[d] [him] from work.

A separate psychiatric assessment, dated August 21, 2017, indicated
Pascarella reported a “history of witnessing violence/crime/battling with
criminal[s]/being subject of the traumatic events (work related) over years”
that caused impairment of his “work and social life.”

¶9            After considering the new information, the Board noted that
Pascarella did not provide any evidence that he sought medical treatment
immediately following the March 2015 incident and that, while that event
was stressful, Pascarella simply acted “in the normal course of what [it]


3       At the rehearing, Pascarella’s counsel asserted the Board had been
earlier presented with a handwritten version of Dr. Rosengard’s now-typed
August 18, 2017 letter at the original hearing. However, the Board “had
trouble reading it, so after the meeting,” Pascarella asked Dr. Rosengard to
“clarify what his chicken scratch handwriting was” for the rehearing.
Regardless, according to the Board’s Procedures, “[t]here shall be no limit
on the Board’s ability to accept and review relevant medical evidence,”
Procedures, at ¶ 12(F), and the record indicates the Board accepted Dr.
Rosengard’s typed letter at the rehearing.


                                       4
                   PASCARELLA v. MESA POLICE, et al.
                         Decision of the Court

expect[ed] police officers to do.”         The Board affirmed its denial of
Pascarella’s application.

¶10             On review, the superior court reversed the Board’s decision,
finding it was “not supported by substantial evidence, was contrary to law,
and constituted an abuse of discretion” and remanded for the Board to
appoint an independent medical examiner (IME). See Procedures, at ¶ 12(F)
(“Board action on a disability benefit application shall be based on medical
evidence by the independent medical examiner appointed by the Board.”);
see also A.R.S. § 38-859 (“A finding of accidental, ordinary, temporary, or
catastrophic disability shall be based on medical evidence by a designated
physician or a physician working in a clinic that is appointed by the local
board . . . that established the disability.”). The Board timely appealed, and
we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 12-913,4 and 38-
847(D)(3), (J).

                                DISCUSSION

¶11            The Board argues the superior court erred in reversing its
denial of Pascarella’s application. On appeal, we “review de novo the
superior court’s judgment, reaching the same underlying issue as the
superior court: whether the [local board’s] action was not supported by
substantial evidence or was illegal, arbitrary and capricious, or involved an
abuse of direction.” See Carlson v. Ariz. State Pers. Bd., 214 Ariz. 426, 430, ¶
13 (App. 2007) (citing Siler v. Ariz. Dep’t of Real Estate, 193 Ariz. 374, 378, ¶
14 (App. 1998)); see also Brodsky v. City of Phx. Police Dep’t Ret. Sys. Bd., 183
Ariz. 92, 94-95 (App. 1995) (citing Havasu Heights Ranch & Dev. Corp. v.
Desert Valley Wood Prods., 167 Ariz. 383, 386 (App. 1990)). To be sure,
“[n]either this court nor the superior court may substitute its judgment for
that of the agency on factual questions or matters of agency expertise.”
Carlson, 214 Ariz. at 430, ¶ 13 (quoting Webb v. Ariz. Bd. of Med. Exam’rs, 202
Ariz. 555, 557, ¶ 7 (App. 2002)). However, we apply our independent
judgment to questions of law, including questions of statutory
interpretation. Id. (quoting Webb, 202 Ariz. at 557, ¶ 7).

¶12        As an initial matter, the parties seemingly dispute which
event — the March 2015 or the August 2016 — forms the basis of


4      Although A.R.S. § 12-913 expressly allows a party to appeal to the
“supreme court,” we have construed this provision as “also allowing an
appeal to the court of appeals, which was created after [A.R.S.] § 12-913 was
enacted.” Svendsen v. Ariz. Dep’t of Transp., Motor Vehicle Div., 234 Ariz. 528,
533, ¶ 13 (App. 2014) (collecting cases).


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                  PASCARELLA v. MESA POLICE, et al.
                        Decision of the Court

Pascarella’s application for accidental disability pension. The record
reflects that, on rehearing, the Board allowed Pascarella to supplement the
record with medical documentation and personal explanation to
demonstrate his disabling condition originated in March 2015. See
Procedures, at ¶ 12(F) (permitting the Board to accept and review relevant
medical evidence with “no limit”). The Board then considered the merits
of Pascarella’s assertion that the relevant event occurred in March 2015; the
Board’s comments indicate it considered whether the March 2015 incident
was sufficiently stressful to cause a disabling condition, as well as whether
Pascarella indeed suffered a disabling condition thereafter. Because the
Board based its decision on the merits of Pascarella’s amended claim, any
discussion of the August 2016 event is irrelevant to the Board’s apparent
determination that Pascarella did not suffer a documented injury following
the March 2015 incident.

¶13            The Board argues the superior court failed to give deference
to its determination that Pascarella failed to offer sufficient evidence of a
medical condition, incurred in the course of his employment in March 2015,
to warrant appointment of an IME to evaluate his claim. But the record
contains an opinion from a medical professional that identified the March
2015 on-duty event, along with “subsequent repercussions” from that
event, as the impetus for Pascarella’s disabling condition. A second medical
record from August 2017 also identifies “work related” traumas that caused
Pascarella physical and emotional impairment. While we may not
substitute our judgment for that of the Board’s, see Carlson, 214 Ariz. at 430,
¶ 13 (quoting Webb, 202 Ariz. at 557, ¶ 7), nor is the Board free to ignore
undisputed medical evidence.

¶14            Here, Pascarella presented medical evidence — however slim
— to support his claim that he suffered a permanent, disabling condition
during the course of his employment as a law enforcement officer. The
Board abused its discretion in substituting its own lay understanding of
medical causation for that of a medical professional. Cf. Hosea, 224 Ariz. at
250-51, ¶ 24 (“[I]n determining whether to grant an accidental disability
pension, such finding [of accidental disability] must be based on ‘medical
evidence’ provided by a medical board.”) (citing A.R.S. § 38-859(C));
Siqueiros v. Indus. Comm’n, 20 Ariz. App. 104, 109 (1973) (“[T]he law is clear
that the medical causation question can be resolved only by expert medical
testimony, and that the [administrative agency] has an obligation not to
ignore all the sworn evidence of the hearing without further hearing or
medical evidence.”).




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                  PASCARELLA v. MESA POLICE, et al.
                        Decision of the Court

¶15           The Board nonetheless relies on Hosea, 224 Ariz. 245, to argue
that further review of Pascarella’s application by an IME is unnecessary
because Pascarella does not meet the statutory prerequisites for an
accidental disability pension. In Hosea, this Court found no error in the
denial of an application for accidental disability pension where an IME
would have been futile. Id. at 251, ¶ 24 (citing Pinal Vista Props., L.L.C. v.
Turnbull, 208 Ariz. 188, 193, ¶ 17 (App. 2004)). But in Hosea, the Board
determined the applicant did not qualify for disability retirement because
he terminated his employment for a reason other than disability. Id. at 251-
52, ¶ 29. We agreed that, under those circumstances, further medical
evidence was irrelevant to the claimant’s eligibility for the pension and
therefore appointment of an IME was unnecessary. Id. at 252, ¶ 30.

¶16            Here, however, the denial of Pascarella’s application is based
upon the existence, nature, and origin of the condition Pascarella asserts
entitles him to an accidental disability pension. Under these circumstances,
further exploration through an IME would not be futile; rather, the IME will
likely provide valuable, objective information regarding the merits and
substance of Pascarella’s claims that will assist the Board in determining
whether his application should be granted. Accordingly, Hosea does not
compel reversal.

                              CONCLUSION

¶17           The superior court’s order reversing the Board’s denial of
Pascarella’s application for an accidental disability pension and remanding
for appointment of an IME is affirmed.

¶18            Pascarella requests an award of attorneys’ fees incurred on
appeal pursuant to A.R.S. § 12-348(A)(2) (authorizing an award of fees to a
party who “prevails by an adjudication on the merits in . . . [a] court
proceeding to review a state agency decision”). Because our decision does
not finally determine Pascarella’s claim for an accidental disability pension
on its merits, the request is premature and denied without prejudice. See
4501 Northpoint L.P. v. Maricopa Cty., 212 Ariz. 98, 101-02, ¶¶ 16-20 (2006).
As the prevailing party, however, Pascarella is awarded his costs incurred
on appeal upon compliance with ARCAP 21(b). See A.R.S. § 12-341.




                           AMY M. WOOD • Clerk of the Court
                           FILED: AA    7
