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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


              LEONARD DAVID DODGE, Plaintiff/Appellant,

                                        v.

     LAKE HAVASU CITY POLICE PUBLIC SAFETY PERSONNEL
         RETIREMENT SYSTEM BOARD, Defendant/Appellee.

                             No. 1 CA-CV 14-0137
                                FILED 2-17-2015


           Appeal from the Superior Court in Mohave County
                        No. S8015CV201100546
                 The Honorable Lee F. Jantzen, Judge

                                  AFFIRMED


                                   COUNSEL

Robaina & Kresin, PLLC, Phoenix
By Thomas T. Griffin
Counsel for Plaintiff/Appellant

Ryan, Rapp & Underwood, PLC, Phoenix
By David L. Niederdeppe, Cynthia K. Kelley
Counsel for Defendant/Appellee
                       DODGE v. LAKE HAVASU
                         Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court,
in which Judge Patricia K. Norris and Judge Randall M. Howe joined.


D O W N I E, Judge:

¶1           Leonard David Dodge appeals the superior court’s
determination he is ineligible for accidental disability benefits. For the
following reasons, we affirm.

                             BACKGROUND

¶2            Dodge previously worked as a police officer with the Lake
Havasu Police Department. In August 2009, he injured his back during an
altercation with a criminal suspect. Dodge pursued medical treatment, but
reported continuing pain and mobility issues. He returned to intermittent
light duty assignment in November 2009.

¶3            In March 2010, Dodge applied for accidental disability
benefits. The Lake Havasu City Police Public Safety Personnel Retirement
System Board (“Board”) voted to send Dodge for an independent medical
examination (“IME”). See Ariz. Rev. Stat. (“A.R.S.”) §§ 38-847(D)(9) (local
boards may “appoint medical boards”), -859(A)(2) (medical board may
evaluate eligibility for accidental disability pension). Dr. Daniel Sullivan
conducted the IME. See A.R.S. § 38-859(B) (to determine existence of a
disability, medical board “shall be composed of a designated physician or
physicians”).

¶4            Dr. Sullivan’s IME report stated that, were he treating Dodge,
he would discontinue “any further nonoperative measures” such as
physical therapy and chiropractic care. He opined that one option was for
Dodge to “live with” his current condition, which would mean he would
“retire from active duty on the police force as he would be unable to
perform his usual duties as a senior police officer without restriction.”
However, Dr. Sullivan’s recommendation was to treat Dodge “surgically
pending two additional diagnostic tests.” He explained the proposed
testing and surgery, concluding, “It is quite likely [Dodge] would get
resolution of his radicular symptoms and very substantial improvement of
his axial symptoms which would allow him to return to the force after he



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                        DODGE v. LAKE HAVASU
                          Decision of the Court

fully recovered.” In opining about whether Dodge had a physical condition
that permanently prevented him from “performing a reasonable range of
duties within [his] job description,” Dr. Sullivan stated:

      The answer is absent having his spine “fixed”, the patient
      would be permanently prevented from returning to full duty
      without restriction as a police officer. However, as I have
      opined above, I do believe his problem is “fixable”.

(Emphasis added.). Dodge did not undergo the diagnostic testing or
surgery recommended by Dr. Sullivan.

¶5             In May 2010, a majority of the Board voted to award Dodge
accidental disability benefits.1 The Public Safety Personnel Retirement
System (“PSPRS”) sought reconsideration of that decision, noting, inter alia,
that the IME had concluded Dodge’s condition “is not permanent but could
be rectified through surgery.”

¶6           Upon reconsideration, the Board unanimously concluded
Dodge was not eligible for accidental disability benefits. The Board heard
from Dr. Sullivan, who, according to meeting minutes in the record,
described the proposed surgery “as a very commonly done procedure with
a post-operative recourse of about 6-8 weeks in a light duty capacity and
4-6 months for manual labor.” Dr. Sullivan stated the risks of surgery were
“minimal,” with the “biggest risk” being “the satisfaction of the overall
results.”

¶7           Dodge filed a complaint for judicial review in the superior
court challenging the Board’s ineligibility determination. He also applied
for temporary disability benefits. A majority of the Board voted to award
him temporary benefits, and PSPRS did not object.2



1  The dissenting Board member noted Dr. Sullivan’s opinion that Dodge’s
medical issues could be remedied.
2  A “temporary disability” is defined as “a physical or mental condition
that the local board finds totally and temporarily prevents an employee
from performing a reasonable range of duties within the employee’s
department and that was incurred in the performance of the employee’s
duty.” A.R.S. § 38-842(47). Temporary benefits may not be received for
more than twelve months. A.R.S. § 38-844(I).




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                         DODGE v. LAKE HAVASU
                           Decision of the Court

¶8           As the end of his one-year eligibility term for temporary
benefits neared, Dodge asked the Board to appoint a new evaluating
physician, and he once again applied for accidental disability benefits. The
Board voted to obtain another IME. Dr. David Bauer conducted the second
IME. His report states, in pertinent part:

       At this time, there is no physical condition which totally or
       permanently prevents [Dodge] from performing his job as a
       senior police officer for Lake Havasu City. . . . While he has
       some limitations in his range of motion, there are no objective
       physical findings.

¶9           In August 2011, the Board considered Dodge’s second
application for accidental disability benefits and, by unanimous vote,
denied it. Dodge requested reconsideration, but the Board affirmed its
decision. Dodge filed a second complaint for judicial review, and the
superior court consolidated the two actions.

¶10           Because there were no transcripts of the Board proceedings,
the superior court conducted a trial de novo. See A.R.S. § 12-910(C) (superior
court shall conduct trial de novo if proceedings were “not stenographically
reported or mechanically recorded so that a transcript might be made”).
After considering documents from the Board proceedings, Dodge’s
testimony, and arguments of counsel, the court concluded Dodge had failed
to establish the existence of a permanent disability. Among other things,
the court noted Dr. Sullivan’s surgical recommendation and found Dodge
did not “take every step available to remedy the disability.”

¶11           Dodge timely appealed. We have jurisdiction pursuant to
A.R.S. §§ 12-913 and 38-847(J).

                                DISCUSSION

¶12             The superior court accurately described its role in this matter,
stating: “It is the Court’s job in this case to act as a local board to conduct a
hearing consistent with the parameters of A.R.S. § 38-841, et seq., to
determine if [Dodge] has or had an accidental disability and whether or not
that accidental disability is temporary or permanent.” In this context, the
superior court was acting as a trier of fact, not as an appellate body.

¶13          This Court does not reweigh the evidence when reviewing a
decision under the Administrative Review Act. See DeGroot v. Ariz. Racing
Comm’n, 141 Ariz. 331, 335-36, 686 P.2d 1301, 1305-06 (App. 1984). We
determine only whether substantial evidence exists to support the


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                         DODGE v. LAKE HAVASU
                           Decision of the Court

underlying decision. See Siler v. Ariz. Dep’t of Real Estate, 193 Ariz. 374, 378,
¶ 14, 972 P.2d 1010, 1014 (App. 1998). We view the evidence in the light
most favorable to upholding the decision. Prebula v. Ariz. Dep’t of Econ. Sec.,
138 Ariz. 26, 30, 672 P.2d 978, 982 (App. 1983). However, we review issues
of statutory interpretation and other questions of law de novo. Dressler v.
Morrison, 212 Ariz. 279, 281, ¶ 11, 130 P.3d 978, 980 (2006).

¶14            At the outset of the proceedings, the court inquired about the
burden of proof. Dodge’s attorney responded: “I guess I don’t know who
has the burden on that, Your Honor. It’s a complaint pursuant to the
Administrative Appeal Act, but since it’s a trial de novo, there’s nothing
really being appealed. You are sitting in the shoes of the Board making a
decision.” The Board’s counsel argued that “the ultimate burden to satisfy
the Court that the individual is eligible for a pension would rest with the
plaintiff.” Dodge did not disagree and has not argued on appeal that it was
the Board’s burden to prove ineligibility. Cf. Ariz. Admin. Code
R2-19-119(B)(1) (in administrative matters before office of administrative
hearings, “[t]he party asserting a claim, right, or entitlement has the burden
of proof”); Campbell v. Superior Court, 106 Ariz. 542, 550-51, 479 P.2d 685,
693-94 (1971) (“[I]t is well established in this jurisdiction that in a trial de
novo the burden remains the same whether it is in relation to an appeal from
the justice court or an appeal from an administrative agency.”).

¶15             Dodge was eligible for an accidental disability pension if his
employment was “terminated by reason of accidental disability.”
“Accidental disability” is defined 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.”3 A.R.S. § 38-842(1). A finding of accidental 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.” A.R.S. § 38-859(C); see also A.R.S.
§ 38-847(K) (“When making a ruling, determination or calculation, the local
board shall be entitled to rely on information furnished by the employer, a
medical board, the board of trustees, independent legal counsel or the
actuary for the system.”).

¶16           We agree with Dodge that he was not required to prove his
asserted disability would continue into perpetuity in order to qualify for


3     It is undisputed Dodge’s injury occurred in the performance of his
duties as a police officer.



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                       DODGE v. LAKE HAVASU
                         Decision of the Court

accidental disability benefits.    The statutory scheme contemplates
circumstances in which a disability previously determined to be
“permanent” may cease. See A.R.S. §§ 38-844(B) (benefits continue until
plan member dies or disability ceases), -844(E) (pension terminates if
member “[h]as sufficiently recovered, in the opinion of the local board,
based on a medical examination by a designated physician”). We disagree,
though, with Dodge’s contention that the superior court imposed an
additional, impermissible requirement — specifically, that he “undergo a
major surgical procedure” to qualify for accidental disability benefits.

¶17          The superior court’s ruling states, in pertinent part:

      The weight of the evidence shows the Plaintiff has not been
      able to return to work to perform his duties as a police officer
      since the incident in question and that the injury was caused
      by the incident. However, Dr. Sullivan’s IME said there was
      the potential for surgery to fix the injury. Plaintiff has decided
      not to pursue the surgery option because of the risks
      involved. Because the Plaintiff has chosen not to take every
      step available to remedy the disability, based on the evidence
      and the conclusions found in Dr. Bauer’s IME,4 there is
      insufficient evidence before the Court to show that this
      disability is permanent.

The superior court concluded Dodge failed to carry his burden of proving
the existence of a “permanent” disability because, among other things, he
failed to pursue treatment specifically recommended by the medical board
(Dr. Sullivan in this case) that could have resolved his problems. This was
a proper consideration.

¶18           Had Dodge participated in the recommended diagnostic
testing and learned he was not a surgical candidate, the outcome might
have been different. Similarly, had he undergone the recommended
surgery, but experienced little to no improvement, he may have been able
to prove the existence of a permanent injury. Neither of these scenarios
transpired, though, because Dodge did not follow the medical board’s
recommendations. There was no suggestion the recommended tests
carried any risks. Nor was there medical evidence of any serious risks
associated with the recommended surgery, such that a trier of fact might


4     As Dodge notes in his opening brief, the superior court’s reference to
“Dr. Bauer’s IME” may have been “intended as a reference to Dr. Sullivan’s
IME Report.”


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                      DODGE v. LAKE HAVASU
                        Decision of the Court

conclude Dodge had reasonably rejected the medical board
recommendations. The only medical evidence properly before the court on
this point was Dr. Sullivan’s assessment that the risks of surgery were
“minimal.” On this record, substantial evidence supports the superior
court’s determination that Dodge failed to establish his eligibility for
accidental disability benefits.

                            CONCLUSION

¶19          For the reasons stated, we affirm the judgment of the superior
court.




                                 :ama




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