PHOENIX (Legal Newsline) - The City of Phoenix has to defend itself against claims by the widow of a police officer that he contracted a fatal case of COVID-19 at work, an appeals court ruled, reversing an administrative ruling that denied benefits for lack of evidence.
An administrative law judge for the Arizona Industrial Commission wrongly dismissed as inadmissible hearsay testimony from the police officer’s widow and a colleague that he had told them about an unnamed employee who had been coughing at work.
That was reversible error in an administrative case because the judge should have used live, not written testimony to assess the credibility of the evidence, the Arizona Court of Appeals ruled in a Jan. 9 decision by Judge Paul J. McMurdie.
Lynn Craig filed for death benefits from the City of Phoenix after her husband, Sergeant Thomas Craig, died from complications of COVID-19 in September 2021. The widow testified she and her husband didn’t go out much that summer “but dined at sparsely attended restaurants perhaps twice a week.” They lived with three adult children who worked outside the home.
Sergeant Craig began feeling ill on Sept. 10, his widow later testified, but continued going to work where he didn’t complain to anyone else about feeling ill. Craig and his wife attended an investment seminar on July 15 and 16 where they were with at least 30 other people for more than seven hours a day. They didn’t wear masks.
On July 19, Sergeant Craig tested positive for COVID-19. His wife tested positive on July 28, the same day he was admitted to the hospital with pneumonia. He died there five weeks later.
The officer’s supervisor testified Sergeant Craig had no symptoms until July 19. Dr. Daniel F. Brooks, testifying for the city, said it would be “very unique” for Craig to contract COVID-19 in early July, continue working without colleagues detecting symptoms, and then develop severe illness three weeks later.
The officer’s wife and his secretary were prepared to testify that Craig had told them an unnamed person had been coughing in the office on July 10 and later tested positive for COVID-19. The ALJ upheld a hearsay objection to the testimony and then rejected a written version, saying even if allowed, there was no proof the unnamed person tested positive for COVID-19.
Lynn Craig appealed the rejection of her claim and the appeals court reversed. Excluding evidence in an Industrial Commission case is harmless only if it “could not have swayed the result,” the appeals court ruled. In this case, the ALJ concluded there was no evidence the unnamed person had COVID-19 and infected Craig. But it “is almost impossible” to judge the credibility of a witness from a written record, the court concluded, and testimony from the widow and the secretary might have changed the result.