Arizona Court of Appeals, Division One holds that, when assessing a worker’s compensation claim, the Industrial Commission must determine whether a law enforcement officer’s work-related stress was “unexpected, unusual, or extraordinary” for a reasonable officer generally, rather than for a reasonable officer from the same jurisdictional department.

When working as a City of Tempe police officer in 2022, Laura Berner responded to murder-suicide shooting at an apartment complex. Berner stopped working as a police officer due to that incident and was diagnosed with post-traumatic stress disorder. Shortly thereafter, Berner filed a worker’s compensation claim, which Tempe denied. Berner protested the denial, and the Industrial Commission set the matter for hearing before an administrative law judge (ALJ).

To prove a compensable mental injury, Berner needed to show at the hearing that her work-related stress was “unexpected, unusual or extraordinary.”  A.R.S. § 23-1043.01(B).  The parties presented conflicting expert testimony on that issue. Berner’s witness, a former Tempe police officer, testified that the incident was “unexpected, unusual, and extraordinary” for Tempe officers.  Tempe’s witness, a former Phoenix police chief, testified that violent situations like the shooting Berner responded to are not uncommon or unusual for any police officer, that officers regularly train for these scenarios, and that Berner performed standard duties at the scene.

The ALJ resolved the conflicting testimony in Berner’s favor—not based on witness credibility, but solely because Berner’s witness had “experience working in the Tempe Police Department, the same department [Berner] worked for.”  The ALJ thus concluded the incident was unusual, unexpected, and extraordinary “for an officer patrolling in Tempe” and awarded benefits.

The court of appeals set aside the award because the ALJ applied the wrong legal test.  Under France v. Industrial Commission, 250 Ariz. 487 (2021), an ALJ may not limit her evaluation of “unexpected, unusual or extraordinary” stress to that of a reasonable officer from the same jurisdictional department. The proper inquiry considers the stress from the standpoint of a reasonable officer more generally. Jurisdiction-specific evidence may be a factor, but it cannot be the sole focus. Otherwise, there would be arbitrary disparities in awards between officers from different departments—the same incident could be unusual for a Tempe officer but not a Phoenix officer.

Because the ALJ improperly evaluated Berner’s stress from the perspective of a reasonable Tempe officer rather than a reasonable officer more generally, the Court set aside the award.

Judge Perkins authored the opinion of the Court, in which Vice Chief Judge Weinzweig and Judge Bailey joined.

Posted by: Michael Moorin