Arizona Officer’s PTSD Not Barred By Three-Year Delay in Filing Claim

Arizona’s one-year filing requirement [see Ariz. Rev. Stat. § 23-1061(A)] is an affirmative defense and the employer or carrier bears the burden of production of evidence to support that defense, held a state appellate court in Pitts v. Indus. Comm’n of Ariz., 2019 Ariz. App. LEXIS 275 (Mar. 21, 2019). Accordingly, where a city police officer was involved in a May 2013 active shootout in which the perpetrator sprayed the windshield of the officer’s patrol car with bullets and the officer did not pursue his workers’ compensation claim until October 2016, three and one-half years after the incident and some ten months after the officer’s initial diagnosis of post traumatic stress disorder (PTSD), it was error for the ALJ to find the filing of the claim untimely, absent an actual showing by the employer that for more than one year prior to filing his claim, the officer knew or had a reasonable basis to know that his symptoms of anxiety, sleeplessness, irritability, and social withdrawal were causally related to the incident.


In May 2013, Pitts was on duty in his patrol vehicle with his fiancée, who was participating in a ride-along. Pitts received an evening service call explaining that there was a man acting in a disorderly manner and possibly brandishing a gun outside a regional hospital. 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 began to fire at the police cruiser. 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, a police department psychologist advised Pitts to “get back on that horse.” Although Pitts told the 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.

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 more than 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 hyper-vigilant—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.”

Pitts’ depression worsened. On December 28, 2015, Pitts visited his primary care doctor to obtain sleep medication. The doctor’s note from that visit states, “probable PTSD,” but Pitts subsequently testified that he did not recall the doctor indicating that particular diagnose nor any need for psychological treatment. Pitts then saw a trauma psychologist in January 2016. At that time, the psychologist diagnosed Pitts with dissociative complex PTSD related to the shooting incident. This was the first such diagnosis.

Limited Evidence Taken at 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 appeared depressed and quit interacting with his children. His fiancée testified that Pitts became hyper-vigilant about his family’s safety. The ALJ found the claim had not been timely filed.

Appellate Court’s Decision

Initially, the Court observed that, in contrast to many physical injuries where a diagnosis is immediate and obvious, the emergence of a mental health injury is difficult to pinpoint. The symptoms in one patient might differ dramatically with those of another. All this was complicated, said the Court, by the potential of “delayed expression,” the fact that while some symptoms immediately appear, there may be a delay-spanning months—even years—in meeting full criteria for a PTSD diagnosis. Here, Pitts was not diagnosed with PTSD 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.

The Court observed that while the ALJ found that Pitts understood he missed work “for reasons related to the shooting” immediately following the incident, no evidence of record supported 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. While Pitts conceded he did not seek medical or psychological help with his symptoms in the years immediately following the shooting, it was the burden of the employer and its carrier to present evidence to support their affirmative defense.

No Support for ALJ’s Finding

The Court stressed that the sole witnesses at the hearing had been Pitts and his fiancée; the employer and carrier had offered no expert testimony at all 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.

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