Opinion
No. 2 CA-CV 2017-0139
03-01-2018
JAMES FEDOR, AN INDIVIDUAL, Appellant, v. TUCSON POLICE PUBLIC SAFETY PERSONNEL RETIREMENT SYSTEM BOARD, AN ADMINISTRATIVE AGENCY; JONATHAN ROTHSCHILD, MAX PARKS, REBECCA HILL, MICHAEL DIETSCH, AND TERRENCE O'HARA, IN THEIR OFFICIAL CAPACITIES AS MEMBERS OF TUCSON POLICE PUBLIC SAFETY PERSONNEL RETIREMENT SYSTEM BOARD, Appellees.
COUNSEL Law Office of Dale Norris, LLC, Phoenix By Dale F. Norris Counsel for Appellant Bossé Rollman PC, Tucson By Richard M. Rollman and Kevin J. Kristick Counsel for Appellees
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f). Appeal from the Superior Court in Pima County
No. C20164252
The Honorable Gus Aragón, Judge
AFFIRMED
COUNSEL Law Office of Dale Norris, LLC, Phoenix
By Dale F. Norris
Counsel for Appellant Bossé Rollman PC, Tucson
By Richard M. Rollman and Kevin J. Kristick
Counsel for Appellees
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Judge Espinosa and Judge Eppich concurred. VÁSQUEZ, Presiding Judge:
¶1 James Fedor, a former Tucson police officer, appeals from the superior court's judgment affirming the Tucson Police Public Safety Personnel Retirement System Board's (the Board) denial of his application for a permanent accidental-disability pension pursuant to A.R.S. § 38-844(B). Fedor contends the Board abused its discretion in denying his application and the court abused its discretion by affirming that decision and awarding the Board attorney fees and costs. For the reasons stated below, we affirm.
On the cover pages of his opening and reply briefs, Fedor states, "Oral Arguments Requested." In the court of appeals, parties must file a "separate request for oral argument" and may not include it in the briefs. Ariz. R. Civ. App. P. 18(a); see Svendsen v. Ariz. Dep't of Transp., Motor Vehicle Div., 234 Ariz. 528, n.8 (App. 2014). Accordingly, we do not consider the request.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the Board's decision. See Hosea v. City of Phx. Fire Pension Bd., 224 Ariz. 245, ¶ 10 (App. 2010). Fedor joined the Tucson Police Department (TPD) as a trainee in July 2011. He was promoted to police officer in November 2011, becoming a member of the Arizona Public Safety Personnel Retirement System (APSPRS). The two incidents at the center of Fedor's disability claim are as follows.
¶3 On March 23, 2012, Fedor responded to a call of domestic violence and came into close contact with an armed and suicidal individual. After the arrival of a SWAT team and ensuing confrontation several hours later, an officer shot and killed the individual. During the post-incident interview with a TPD detective, Fedor did not volunteer any concern he had about the incident, nor did he state or suggest he was suffering from any kind of distress as a result. He saw TPD psychologist, Luz M. Cornell, Ph.D., about a week after the incident and, although he stated he had no lingering symptoms or concerns about continuing to perform his duties, he did admit to feelings of anxiety and self-doubt and questioned whether he could have done more during the incident. He reported that his ability to concentrate was affected for a few days.
¶4 The second incident occurred on May 26, 2013. Fedor was among officers who responded to a fatal shooting at a high school graduation, during which he began to administer CPR to the victim until a superior officer directed him to stop. Fedor took time off the day after the incident, and, when he spoke with Dr. Cornell the following day, he reported some distress, stating the "worst moment" was being forced to stop providing CPR. But he reported his sergeant had been receptive to his concerns and was willing to take those concerns up through the chain of command. He initially reported trouble concentrating, intrusive thoughts, hyper-alertness, self-doubt, guilt feelings, and low self-esteem. During a follow-up visit with Cornell in June, however, he said he had increased support from peers and was aware that a victim with multiple gunshot wounds was not likely to survive, but was upset with the sergeant who had told him to stop CPR and was upset with himself for having to quit the procedure. He also denied having any symptoms that would keep him from working. At no time during Fedor's employment with TPD did Cornell ever diagnose him as suffering from Posttraumatic Stress Disorder (PTSD).
¶5 On April 2, 2015, almost two years after the second incident, Fedor submitted his notice of resignation from TPD, effective May 1, 2015. In it, he stated, "It has been a pleasure having the privilege of working for this organization and has afforded me many career developing opportunities. I am leaving to attend law school in an effort to pursue a career in law."
¶6 In January 2016, Fedor saw Amy White, Psy.D., for what her records described as "symptoms of posttraumatic stress related to his career as a police officer for Tucson" and multiple incidents. Fedor was hospitalized in February after he expressed suicidal ideations, and he apparently attempted to take his own life while hospitalized. Hospital personnel diagnosed unspecified bipolar and related disorder and PTSD "related to experiences in the military and as a police officer."
The record shows Fedor was enrolled in law school at the time he first consulted Dr. White. But at the rehearing on his application for disability benefits on September 6, 2016, he testified that he had withdrawn after attempting suicide in February 2016.
Fedor is a former lance corporal in the Marine Corps Reserve.
¶7 Fedor applied for an accidental-disability pension on March 15, 2016, stating he had experienced "several critical incidents leading to the development of sever[e] PTSD." He submitted medical records from January and February 2016 in support of his application.
¶8 To qualify for an accidental-disability pension pursuant to § 38-844(B), Fedor was required to establish his "employment . . . terminated by reason of accidental disability," defined as "a physical or mental condition that . . . 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). The Board considered Fedor's application at its April 5, 2016 meeting and, upon a Board member's motion, adjourned into executive session. Based on the record before us, it does not appear Fedor, who was present, objected.
¶9 During the brief executive session, the Board discussed the significance of Fedor's statement in his letter of resignation that he was "leaving to attend law school in an effort to pursue a career in law." The Board also discussed the fact that the letter made no mention of his having PTSD symptoms or his suffering from any impediment that made him unable to do his job as a police officer. Although one Board member mentioned that Fedor apparently had applied for accommodations under the Americans with Disabilities Act at the law school, he noted there was "absolutely no documentation saying what those [disabilities] are" or "other follow-up explaining what that [disability] is." Additionally, the Board discussed the fact that all of the supporting medical records were dated after Fedor's resignation.
That the executive session was brief is reflected by the fact that the transcript from that portion of the Board's meeting is only three pages in length, even considering that the transcript specifies at the end that some portion was redacted. Moreover, the minutes for that Board meeting, which covered multiple issues, show it was called to order at 9:03 a.m. and ended at 9:41 a.m.
¶10 The Board then adjourned from executive to regular session. The transcript shows a Board member moved to consider the application "based on the information that we discussed in executive session." The minutes reflect the Board denied Fedor's application "based on the fact that the medical evidence that was provided to the Local Board concerned only periods of time that were subsequent to his termination." The Board's chairman, Mayor Jonathan Rothschild, invited Fedor to stay after the meeting to talk to the Board's counsel "off the record" so he could explain what some of the Board's "concerns were and maybe how they can be addressed or not." Fedor said, "Okay."
¶11 Fedor filed a request for rehearing pursuant to A.R.S. § 38-847(H) and a memorandum in support of that request, submitting additional information, including Dr. Cornell's treatment notes. Fedor argued in his memorandum that the notes showed he had been experiencing symptoms consistent with PTSD around the time of the incidents. He also included an affidavit from his direct supervisor at TPD describing the changes in his attitude and demeanor that had affected his job performance before he resigned. The Board addressed the request for rehearing at its August 2, 2016 meeting, noting the additional medical records and discussing whether Fedor had been diagnosed with PTSD before he resigned. The Board asked Fedor to provide a transcript of Cornell's notes because they were illegible and continued the rehearing until the September meeting, at which time it would either affirm its prior decision or refer the case to a medical board for an independent medical examination (IME). See A.R.S. § 38-859 (setting forth purpose and role of medical board in evaluating disability-pension eligibility). Fedor filed a second memorandum in support of his request for rehearing. He included Cornell's transcribed treatment notes, which showed he had complained of symptoms consistent with PTSD on two occasions but did not include a diagnosis of PTSD. Moreover, the notes reflected that Fedor's symptoms had resolved and that he had continued to fully perform his duties.
¶12 At the rehearing in September, Fedor was represented by counsel, who specified that the following documentation was now before the Board: a letter from psychiatrist Karl Marku, M.D., an opinion letter from Dr. White, and an opinion letter from Shellie Ruge, a licensed practicing counselor. Counsel pointed to Dr. Cornell's records as well, including the Post-Incident Interview Officer Information form, which he argued showed Fedor had been experiencing "some post traumatic response" after the two incidents noted above and another incident involving child abuse. Fedor's counsel argued he had submitted sufficient evidence to warrant referral for an IME, which would inform the Board how Fedor had been affected by the incidents. Counsel acknowledged that Hosea, 224 Ariz. 245, was the closest case to Fedor's situation, but he argued it was distinguishable because in that case, "[t]he medical evidence in no way supported an award of a disability pension," unlike in this case.
¶13 Fedor testified at the rehearing about the two incidents and the effect they had on him. He acknowledged he had denied symptoms that could have prevented him from working when Dr. Cornell interviewed him in May 2013, but he explained he was embarrassed, "felt incredibly weak," and was afraid he would lose his job. He stated that his guilt feelings from the first incident were related to the fact that another officer, his "best friend," had to shoot the person because Fedor had not acted. He also stated his frustration from the second incident stemmed from his superior officer ordering him to stop giving CPR.
¶14 Although unsure of the timeframe, Fedor testified he was first diagnosed with PTSD by his primary care physician, followed by Dr. White in January 2016, and then a psychiatrist after he was hospitalized in February 2016. Fedor was asked about a questionnaire completed for White, in which he stated he had been receiving medication for PTSD since July 2015, and he responded that his primary care physician had prescribed the medication. But he essentially conceded that he had not provided supporting documentation on that issue to the Board. The Board also questioned why, in his resignation letter, he did not mention anything about the job being too stressful for him or state that he could not fully perform his duties. In explaining this, he responded it was due to his "embarrassment and fear," as well as his wanting "to make a clean break, have [his] reputation in place when [he] left, and [to] try to just get better." Fedor added that he did not think he had known what was wrong before he terminated his employment. He explained he experienced panic attacks at work, knew he was feeling depressed, and was "unhappy with [his] job," but he added, "I didn't have anybody say to me[, 'Y]ou have PTSD['] . . . until later," adding that his symptoms grew worse after he left.
¶15 After some discussion, a Board member moved to reverse the initial decision and refer Fedor for an IME for further evaluation, and Rothschild seconded the motion. But the motion failed, which meant the Board had upheld its initial decision to deny Fedor's application for a disability pension.
¶16 Fedor appealed the Board's decision to the superior court pursuant to A.R.S. § 12-905(A). See also § 38-847(J). In May 2016, following briefing, oral argument, and the parties' submission of proposed findings of fact and conclusions of law, the court entered an under-advisement ruling that contained findings of fact and conclusions of law. The court's findings included that Fedor had not expressed distress related to the first incident, first mentioning it to Dr. Cornell in March 2012 and only in the form of guilt over not shooting the individual himself sooner, requiring another officer to do it. The court further found Fedor had claimed the feelings had lasted only a few days and completed a form that suggested the incident did not affect his ability to work. With respect to the second incident, the court found Fedor did report some distress to Cornell afterwards, but only in the form of lingering frustration and anger because he was directed to stop administering CPR to the victim.
¶17 The superior court summarized the proceedings before the Board, acknowledged the Board's discretion in assessing the evidence, and found the Board's decision was supported by substantial evidence. Specifically, the court found the evidence showed Fedor had worked full-time for almost two years after the second incident, and it stated the Board was free to reject Fedor's explanations for minimizing his reactions to the incidents and making no mention of an inability to do his job in his letter of resignation. The court concluded that the Board had not abused its discretion in finding Fedor had failed to establish the threshold criteria for eligibility, which is that he had resigned because of a disability. The court entered a final judgment in July, affirming the Board's decision and awarding the Board $9,500 in attorney fees and $194.10 in taxable costs. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-913.
Discussion
Denial of Application for Accidental-Disability Pension
¶18 Fedor contends that "[t]his case is not a request to award [him] a disability pension"; rather, he maintains it "is merely to send [him] for an [IME] thereby complying with state law and the Local Board's own rules," permitting his "application to be evaluated on the basis of medical evidence." He argues the Board ignored the evidence he submitted and "its decision was for reasons that were only discussed in executive session and not disclosed to the applicant or in a public session." He insists the "unrefuted" evidence shows he "suffers from disabling PTSD, and his condition was incurred in the performance of his duties as a police officer, the condition is permanent, and it prevents him from performing a reasonable range of duties in his job classification."
¶19 The superior court reviewed the Board's decision under the correct standard, which required it to affirm the Board unless its decision was "not supported by substantial evidence, [was] contrary to law, [was] arbitrary and capricious or . . . an abuse of discretion." A.R.S. § 12-910(E); see also Parsons v. Ariz. Dep't of Health Servs., 242 Ariz. 320, ¶ 10 (App. 2017). In reviewing the superior court's ruling, we must "'independently examine the record to determine whether the evidence supports the judgment,' under a preponderance of the evidence standard." Parsons, 242 Ariz. 320, ¶ 10, quoting Webb v. State ex rel. Ariz. Bd. of Med. Exam'rs, 202 Ariz. 555, ¶ 7 (App. 2002); Ariz. Admin. Code R2-19-119(A). "[W]e view the evidence in the light most favorable to upholding the agency's decision, [but] we are not bound by the agency's or the superior court's legal conclusions or statutory interpretations." Parsons, 242 Ariz. 320, ¶ 10; see also JHass Grp. L.L.C. v. Ariz. Dep't of Fin. Insts., 238 Ariz. 377, ¶ 20 (App. 2015). We do not reweigh the evidence. See DeGroot v. Ariz. Racing Comm'n, 141 Ariz. 331, 335-36 (App. 1984). Rather, we, like the superior court, determine only whether substantial evidence exists to support the underlying decision. See Siler v. Ariz. Dep't of Real Estate, 193 Ariz. 374, ¶¶ 13-14 (App. 1998).
This subsection of the statute was amended, effective June 30, 2017, after the superior court issued its decision; the changes were not substantive but rather reordered the wording. See 2017 Ariz. Sess. Laws, ch. 329, § 2.
¶20 At the outset, we reject Fedor's repeated suggestions that the Board acted improperly in conducting portions of its discussions in executive session and not revealing the content of those discussions in its minutes or while in regular session. Fedor argues this procedure deprived him of an opportunity to refute the basis for the Board's denial of his application after the April 2016 meeting because it was based on reasons discussed during the executive session. He insists he did not know the true basis for the Board's decision until the Board filed its answering brief in the superior court.
¶21 First, as we previously noted, it does not appear Fedor complained during the proceedings when the Board went into executive session or entered its ruling on rehearing. Perhaps more importantly, based on the opening and reply briefs he filed in superior court, it does not appear he raised this argument before that court, but only obliquely asserted it in his proposed findings of fact and conclusions of law. Notably, the court did not mention this argument in its under-advisement ruling, and Fedor did not seek additional findings or conclusions. Accordingly, any claim of error related to the Board's discussions in executive session is waived. See Neil v. City of Kingman, 169 Ariz. 133, 136 (1991); see also Harris v. Cochise Health Sys., 215 Ariz. 344, ¶ 17 (App. 2007) (appellate court generally will not address arguments raised for first time on appeal); DeGroot, 141 Ariz. at 340 (generally, "failure to raise an issue before an administrative tribunal precludes judicial review of that issue on appeal unless the issue is jurisdictional in nature").
Section 38-431.03(A)(1), A.R.S., states that an employee "may demand that the discussion or consideration occur at a public meeting." Again, from the record before us, it does not appear Fedor made any such demand. Moreover, as pointed out above, the Board's chairman had invited Fedor to stay after the meeting to talk to the Board's counsel "off the record" for more information about the Board's concerns, and although it is not clear whether Fedor took that opportunity, he had responded, "Okay."
¶22 In any event, the Board adequately informed Fedor of the basis for its initial denial of the application and permitted him to provide the Board with additional records in connection with his request for rehearing. It seems apparent that Fedor's sole reason for leaving TPD expressed in his letter of resignation would be a significant, if not the dispositive, factor in the Board's determination of why he had left and whether he had terminated his employment "by reason" of a disability. See § 38-844(B) (availability of pension for member "terminated by reason of accidental disability"). Fedor presumably recognized the significance of the conflict between his resignation letter and his disability claim, asserted months after he terminated his employment. Indeed, that recognition is evident from his attempt to explain it in his Memorandum in Support of Rehearing. He stated that Dr. Cornell had "encouraged him not to report his feelings to the department because of the potential stigma it might cause," and he asserted that, under Parkinson v. Guadalupe Public Safety Retirement Board, 214 Ariz. 274 (App. 2007), it was proper for him to have left for other reasons without impeding his disability claim because the disability need not be the "sole reason" but "a reason." The record thus belies Fedor's claim that he did not know the letter was material to the Board's denial of his application until January 2017, when the Board filed its answering brief in superior court. Board members specifically asked Fedor about the letter at the September 2016 meeting.
We disagree with Fedor's characterization of the letter as an "additional reason" for the Board's denial of his application. Rather, it was part of its singular, threshold determination of whether he left TPD because of a disability, its very nature making its materiality readily apparent.
¶23 Next, Fedor argues the matters discussed by the Board during the executive session are not a "legal action" and such discussion was therefore contrary to the law. Fedor's reliance on A.R.S. §§ 38-431.03(D), 41-1063, and City of Prescott v. Town of Chino Valley, 166 Ariz. 480 (1990), for that proposition are misplaced. The specific discussion about the import of the resignation letter was not a "decision" on a matter separate from the Board's initial determination that he was not entitled to a disability pension. Rather, the letter, and the Board's discussion about it, together with the lack of supportive medical evidence, was the basis of the Board's decision that Fedor had failed to sustain his burden of showing preliminarily that he had resigned because of a disability incurred while on the job.
¶24 In Chino Valley, our supreme court held that a governmental entity's consultation with its counsel for legal advice about proposed legislation in executive session is not "legal action" in violation of the open meeting laws. 166 Ariz. at 485-86. "However, once the members of the public body commence any discussion regarding the merits of enacting the legislation or what action to take based upon the attorney's advice, the discussion moves beyond the realm of legal advice and must be open to the public." Id. at 485. In this case, although the Board discussed the letter in executive session, its decision to deny the application was made in a public session. We therefore see no violation of § 38-431.03(D) and Arizona's open meeting laws.
¶25 We now address whether the Board abused its discretion in refusing to refer Fedor for an IME and upholding its initial decision to deny his application for a disability pension, and whether the superior court therefore abused its discretion in affirming the Board's decision. To qualify for an accidental-disability pension under § 38-844(B), Fedor was first required to make a threshold showing that he resigned "by reason of" a disability he suffered while serving as a TPD officer. See Hosea, 224 Ariz. 245, ¶ 12. Had he made that showing, he would then have been required to establish the injury "totally and permanently" prevented him "from performing a reasonable range of duties" within his department. § 38-842(1). See also § 38-847(f) (authorizing local boards to promulgate rules); R. Bd. P., City of Tucson Police & Fire Pub. Safety Pers. Ret. Sys. Bds. (E)(2) (providing that at initial hearing on disability application board must determine whether medical and other documentation is sufficient to conclude claimant satisfied statutory prerequisites and, if so, claimant shall be referred to medical board pursuant to § 38-859(A)).
¶26 Both the Board and the superior court relied on Hosea. In that case, this court affirmed the superior court's order affirming the City of Phoenix Fire Pension Board's (Fire Board) denial of a former firefighter's application for an accidental-disability pension, concluding the Fire Board was not required to refer Hosea to a medical board for evaluation pursuant to § 38-859, given the information presented at the initial hearing. Hosea, 224 Ariz. 245, ¶¶ 1, 24. In April 2002, Hosea applied for the Deferred Retirement Option Plan (DROP), available to retirement-eligible employees. Under the program, eligible employees may participate by voluntarily and irrevocably selecting a retirement date no more than sixty consecutive months in the future, on which their employment is to terminate. Id. ¶ 3. Hosea selected May 31, 2007, as his termination date. Id. On July 9, 2006, Hosea was injured. Id. ¶ 4. He submitted an injury report and was seen by two physicians through his own health insurance, rather than seeking treatment through his employer's medical center, and was assigned to light duty. Id. He did not seek workers' compensation benefits. Id. Using sick leave and vacation leave, he continued full-time employment. Id. On May 17, 2007, Hosea was examined by a physician's assistant at the Phoenix Fire Department's Health Center, who recommended he "continue on full duty status." Id. ¶ 5. One week later, Hosea filed an application for an accidental-disability pension arising from the July 9, 2006 injury, effective May 31, 2007, the day the DROP period ended. Id. ¶ 6. Hosea submitted medical records in support of the application and worked "on full duty status" until his employment ended. Id.
In this case, although Fedor filed a claim for workers' compensation benefits with TPD, he did not do so until late April 2016—after the initial Board hearing but before the rehearing in August and September. Fedor purports to attach a document he refers to as "Attachment A" to his opening brief that relates to this claim and his benefits, stating he is not submitting the information "as proof of a disability," but rather only to distinguish this case from Hosea, which we discuss below. --------
¶27 The Fire Board refused to refer Hosea to a medical board for an IME and denied his application. Id. ¶ 7. It found there was no compelling evidence that his disability had caused him to leave his employment and granted him normal retirement starting on June 1, 2007. Id. The Fire Board determined the medical evidence Hosea had submitted "did not indicate [his] condition(s) caused him (or would have caused [him]) to have to terminate [his] position and retire." Id. Upon rehearing, the Fire Board upheld its decision, finding he had terminated his employment because of DROP, not the disability. Id. Hosea sought judicial review by the superior court, which affirmed the Fire Board's decisions and Hosea appealed. Id. ¶ 8.
¶28 Like Fedor, Hosea argued on appeal that the Fire Board violated applicable policies by denying his application without first appointing a medical board pursuant to § 38-859, insisting the issue had to be based on opinions of medical experts. Id. ¶¶ 9, 11. This court agreed with the Fire Board that it was not required to refer Hosea for an IME before denying his application because Hosea had failed to satisfy the threshold showing of eligibility for an accidental-disability pension under § 38-844(B). Id. ¶¶ 21-22. Like here, the record showed Hosea had worked full-time until his actual termination date. Id. ¶¶ 20-21. Thus, the evidence supported the Fire Board's decision that Hosea "was not eligible to receive disability benefits because he did not terminate his employment by reason of accidental disability." Id. ¶ 20. We concluded that, under those circumstances, the procedure of appointing a medical board was "wholly unnecessary" and "would have been futile." Id. ¶ 24.
¶29 Fedor argues that, "given the bulk of medical evidence" he had provided the Board, an IME would not have been "futile," as in Hosea. He asserts the burden on the applicant is not "onerous"; rather, he asserts he was only required to establish "preliminarily" at the initial hearing that he had incurred a medical or mental condition while performing his job that totally prevented him from performing "a reasonable range" of his duties and this disability had caused the termination of his employment. Insisting he made that threshold showing, Fedor minimizes the fact that his own letter of resignation makes no mention of any disability and gave an entirely different reason for leaving TPD—his desire to pursue a law degree. He also overlooks that he fully performed his duties with TPD for almost two years from the most recent incident until his final day with the department.
¶30 Fedor asserts that the Board engaged in speculation about the real reason he had terminated his employment and that his failure to diagnose his own disability could not be a proper basis for denying his application. Relying on Parkinson, 214 Ariz. 274, he argues he could not be excluded from eligibility simply because he had given another reason for terminating his employment. Fedor argues Parkinson "is the controlling authority in this matter," and although he concedes Hosea "is certainly instructive" and "procedurally similar," he insists it is nevertheless factually distinguishable.
¶31 Fedor contends Hosea was "contractually obligated to leave his employment" because of the terms of DROP rather than a disability. Fedor claims he was under no similar obligation and there was, at least preliminarily, evidence that he left because of a disability. He argues that the Board and superior court are wrong to suggest Hosea is controlling. He maintains the court in Hosea created a narrow exception to the requirement for an IME: "where the local board can demonstrate that it would be 'futile' to obtain medical evidence because the applicant's stated disability 'could not have been a cause' for termination of employment." And he contends that in its answering brief filed before the superior court, the Board had alleged it "believe[d]" PTSD was not the cause of his resignation, thereby substituting its lay opinion for that of an expert. He argues the Board essentially changed Hosea's standard from "could not have been a cause," to "may not have been the cause." And, he adds, unlike Hosea, he applied for workers' compensation benefits through the City of Tucson and has been awarded compensation for PTSD related to his job as a TPD officer.
¶32 We do not find Hosea meaningfully distinguishable. In both that case and here, the employees were able to work until their termination date and initially claimed a reason other than a disability for terminating their employment. Here, the Board based its denial of Fedor's application on his letter of resignation and the medical information he provided. As in Hosea, it concluded that he failed to satisfy the threshold requirement of showing he left his employment because of an alleged disability suffered on the job. Fedor's letter stated only that he was leaving to attend law school and made no mention of any mental health impediment to the fulfillment of his duties as a police officer. As the superior court correctly stated in its under-advisement ruling, "[t]he Board had the discretion to reject some or all of Mr. Fedor's testimony about why he resigned." See Lathrop v. Ariz. Bd. of Chiropractic Exam'rs, 182 Ariz. 172, 181 (App. 1995) ("It is the Board's prerogative, as the trier-of-fact, to assess the credibility of witnesses."). Furthermore, the court added, it was reasonable for the Board to have rejected Fedor's testimony "because he continued to work as a TPD officer for [almost] two years after the more recent of the two incidents that he alleged caused him to suffer PTSD, and he worked his last day for TPD as a full-duty police officer."
¶33 Cornell's notes and the forms Fedor completed showed that although he had experienced some symptoms consistent with PTSD, he told her he had only experienced them for a few days, denying any lingering symptoms and expressing no concerns about resuming his duties. There was no diagnosis of PTSD until more than eight months after Fedor resigned. The IME conducted on October 3, 2016, in connection with Fedor's claim for workers' compensation benefits, does not establish the Board abused its discretion in its earlier finding that Fedor had not shown he resigned because of a disability. Moreover, the IME was not before the Board when it initially considered Fedor's application, nor when it decided his request for rehearing. More importantly, it does not refute the substantial evidence supporting the Board's determination that Fedor did not leave TPD because of a disability. Consequently, the record supports the superior court's ruling as well.
¶34 We also reject Fedor's reliance on Parkinson for his argument that his failure to "self-diagnose" at the time he filed his resignation letter "does not foreclose his ability to obtain a disability pension." He argues that his non-disability reason for terminating his employment—a desire to attend law school—did not disqualify him from receiving a disability pension. He testified before the Board that although this was a reason he withdrew from TPD, his mental condition was worsening, which he did not disclose because he did not want to appear weak. He asserts he had two reasons for resigning from TPD, one of which was a medical reason, obligating the Board to refer the matter for an IME to answer the medical questions whether he suffered from PTSD and whether that condition would prompt him to conceal his symptoms or be unable to self-diagnose.
¶35 We find Parkinson distinguishable for the same reason this court distinguished it in Hosea. 224 Ariz. 245, ¶¶ 25-29. In Parkinson, this court affirmed the superior court's order reversing the Guadalupe Public Safety Retirement Local Board's (Local Board) denial of a former fire chief's application for an accidental-disability pension. 214 Ariz. 274, ¶¶ 1, 23. Parkinson was injured on June 20, 2000, took time off work, and returned in 2001. Id. ¶ 2. He stated during a performance review in January 2003 that he continued to suffer from the injury. Id. In a letter dated February 3, 2004, the town manager informed Parkinson he was being placed on paid administrative leave pending an unrelated internal investigation, the nature of which was not disclosed to him. Id. ¶ 3. On February 6, he submitted an application for accidental-disability pension. Id. ¶ 4. The Local Board produced a letter by the town manager dated February 13 entitled "Notice of Intent to Terminate," stating Parkinson was being dismissed because he had used sexually offensive language and had engaged in sexually offensive conduct, abused his position, sexually assaulted employees, and interfered with the investigation. Id. The notice stated Parkinson could respond to the allegations at a pre-termination hearing on February 18. Id. There was a factual dispute, however, as to whether Parkinson ever received this notice. Id. Parkinson submitted a letter of resignation on February 17. Id. ¶ 5.
¶36 The Local Board initially approved Parkinson's application for a disability pension. Id. ¶ 6. A subsequent IME apparently showed Parkinson could not do his job. Id. ¶ 8. After a rehearing, however, the Local Board reversed its initial determination, finding Parkinson's resignation was not "solely caused by the accidental disability," as it argued was required under § 38-844(B). Id. ¶¶ 6, 9. On appeal, the superior court reversed the Local Board's decision, concluding the record did not support its finding that Parkinson had known about the misconduct allegations when he resigned. Id. ¶ 10. The court found Parkinson undeniably had suffered a job-related injury and continued to have problems, stating when he resigned he was doing so because of his disability. Id.
¶37 On appeal to this court, the Local Board argued the superior court had erred in reversing its decision, which it claimed was "entitled to substantial deference because it chose between two inconsistent factual conclusions, each supported by the record." Id. ¶ 11. And, the Local Board argued, it properly denied the pension on the ground that Parkinson had not resigned solely due to the disability. Id. Crucial to this court's decision was the interpretation of § 38-844(B) to mean that a member's accidental disability need not be the "sole reason for his resignation or that the Board must find as a fact that a member's disability is the sole cause of the end of his employment." Id. ¶¶ 14-15. We concluded that there was no requirement in "the statutory scheme . . . that a pension applicant have a single reason . . . for seeking a pension." Id. ¶ 18. Nor did we find any support for the notion "that the Arizona Legislature intended the result that, if a non-disability reason or factual circumstance might motivate a member to retire, the member is disqualified from receiving a disability pension." Id.
¶38 Here, as in Hosea, the Board denied Fedor's application from the outset. It did not approve, then later reject, the application because there were multiple reasons Fedor terminated his employment, one of which was a disability that post-termination documentation suggests he was suffering from after he left TPD. Rather, the Board found the record showed Fedor had ended his employment solely because he planned to attend law school, not because of an alleged PTSD-based disability. There is substantial evidence in the record to support that finding, including, primarily though not exclusively, Fedor's letter of resignation. The medical information he provided the Board on rehearing supported its decision as well. Just as we concluded in Hosea, "Parkinson does not compel a different result." 224 Ariz. 245, ¶ 29. To the extent the information before the Board permitted two different results, we, like the superior court, defer to the Board because the decision is supported by substantial evidence, is not arbitrary or capricious, and is not contrary to the law. See id. ¶ 13.
Attorney Fees and Costs
¶39 At the end of its May 2017 under-advisement ruling, the superior court directed the Board to submit documentation supporting its request for attorney fees and costs, together with a citation to authorities justifying such an award. The Board submitted its motion for an award of fees based on A.R.S. § 12-341.01(A), arguing the court should exercise its discretion and award fees based on the relevant factors set forth in Associated Indemnity Corp. v. Warner, 143 Ariz. 567, 570 (1985). The Board requested $13,979.75 in attorney fees and $194.10 in costs. In his response, Fedor argued that the Warner factors weighed in his favor. The court found that application of the Warner factors justified "a downward adjustment" of attorney fees and granted the Board $9,500 in fees.
¶40 Fedor contends the superior court abused its discretion in applying the Warner factors, citing several reasons. First, although we have concluded Hosea rather than Parkinson is controlling here, that issue was at least debatable, and we therefore agree with Fedor that the issue on appeal, viewed in the context of the specific facts of this case, did not, in Fedor's words, "concern settled case law." Fedor also claims he tried to avoid litigation when he reasonably sought a rehearing and submitted additional documentation to support his claim, given the Board's initial statement that the medical evidence he had provided initially was insufficient because it related only to the period after he resigned. He insists the Board's "secret" decision while in executive session compelled him to seek rehearing because he did not learn the actual reason the Board had denied his application in sufficient time to refute it. Third, Fedor argues requiring him to pay attorney fees is a hardship because he is disabled and has limited financial resources, whereas the Board is not required to pay its own fees, given that they are paid by the City of Tucson, which had neither appeared in the action nor made a request for fees. Fedor contends there is a significant disparity in the parties' financial resources. Finally, Fedor argues that requiring him to pay the Board's fees will have a chilling effect on other TPD officers who wish to pursue their "contractual and statutory" rights to seek a disability pension, even when there is good cause for the requests.
¶41 The superior court has broad discretion in determining whether to award the Board attorney fees as the prevailing party based on its consideration of "a variety of factors . . . including the merits of the defense by the unsuccessful party, whether the parties could have settled, whether the successful party prevailed as to all relief and whether awarding attorney fees would 'discourage other parties with tenable claims.'" See Motzer v. Escalante, 228 Ariz. 295, ¶ 5 (App. 2011), quoting Warner, 143 Ariz. at 570. This court "will uphold the [superior] court's ruling if there is 'any reasonable basis for the decision.'" Id., quoting State Farm Mut. Auto. Ins. Co. v. Arrington, 192 Ariz. 255, ¶ 27 (App. 1998). We do not substitute our judgment for that of the superior court, rather the question we must ask is whether it reasonably could have made the ruling it did based on the applicable law and the circumstances of the case. Tucson Estates Prop. Owners Ass'n, Inc. v. McGovern, 239 Ariz. 52, ¶ 12 (App. 2016).
¶42 The superior court considered the Warner factors and, exercising its discretion, reduced the amount of the fees the Board had requested. Based on the record before us, we cannot say the court abused its discretion by rejecting Fedor's argument that no award of fees was justified.
Disposition
¶43 For the foregoing reasons, we affirm the superior court's order affirming the Board's denial of Fedor's application for an accidental-disability pension and awarding the Board its fees and costs. The Board has requested its attorney fees pursuant to § 12-341.01(A) and costs incurred on appeal. In our discretion, we deny the request for fees; however, the Board is entitled to its costs on appeal upon compliance with Rule 21(b), Ariz. R. Civ. App. P.