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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

THOMAS CRAIG, Petitioner Employee,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

CITY OF PHOENIX, Respondent Employer,

CITY OF PHOENIX, Respondent Carrier.

No. 1 CA-IC 23-0002

Special Action - Industrial Commission

ICA Claim No. 20212770223

Carrier Claim No. 21G10J874066

The Honorable C. Andrew Campbell, Administrative Law Judge

AWARD SET ASIDE

COUNSEL

Ahwatukee Legal Office P.C., Phoenix

By David L. Abney (argued)

Counsel for Petitioner Employee

Industrial Commission of Arizona, Phoenix

By Afshan Peimani

Counsel for Respondent

FILED 01-09-2024
2

Lundmark, Barberich, La Mont & Puig, P.C., Phoenix

By R. Todd Lundmark, David T. Lundmark (argued)

Counsel for Respondent Employer and Insurance Carrier

MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding 

Judge D. Steven Williams and Judge Samuel A. Thumma joined.

M c M U R D I E, Judge:

¶1 Phoenix Police Sergeant Thomas Craig died from COVID-19

complications. Sergeant Craig’s widow, Lynn Craig, asks us to review the

Industrial Commission of Arizona’s ruling that she failed to prove Sergeant 

Craig contracted the virus at work. We set aside the award because the 

Commission’s procedural rulings did not achieve substantial justice as 

required by A.R.S. § 23-941(F).

FACTS1 AND PROCEDURAL BACKGROUND

¶2 Sergeant Craig worked for the Phoenix Police Department. In 

2021, he was the administrative sergeant of the property management unit

responsible for maintaining the building and supervising a squad. He 

mostly worked at his desk but interacted daily with co-workers and the 

public. On July 19, 2021, Sergeant Craig tested positive for COVID-19. He 

was hospitalized on July 25,released soon after, and then hospitalized again 

from July 28 until he died on September 3, 2021, from complications of the 

viral infection.

¶3 Before he died, Sergeant Craig filed a workers’ compensation 

claim alleging he contracted COVID-19 while at work. After his death, Lynn 

Craig filed a death benefit claim. The City of Phoenix denied the claims.

Lynn Craig contested those denials, and the Commission held an 

evidentiary hearing on both claims.

¶4 Lynn Craig testified that she and her husband did not go out

much that summer but dined at sparsely filled restaurants perhaps twice a

1 “We consider the evidence in a light most favorable to sustaining the 

award.” Turner v. Indus. Comm’n, 251 Ariz. 483, 484, ¶ 2 (App. 2021).
CRAIG v. CITY OF PHOENIX/CITY OF PHX

Decision of the Court

3

week. Their three adult children lived with them, and the children worked

outside the home.

¶5 Lynn Craig also testified that Sergeant Craig began feeling ill

and fatigued on Saturday, July 10, 2021. He blamed his symptoms on 

allergies and went to work July 12, 13, and 14. He appeared well and did 

not complain to others of feeling ill during those days.

¶6 On July 15 and 16, Sergeant and Lynn Craig attended a 

two-day investment seminar with a close friend, Vincent Del Franco. At 

least 30 people attended the workshop, with tables grouped by four or six 

persons in a large space. The event lasted about seven hours each day. The 

Craigs and Del Franco did not wear masks at the seminar, but some other 

attendees did. On Monday, July 19, Sergeant Craig did not feel well, left 

work early, and tested positive for COVID-19.

¶7 Del Franco started feeling ill on July 21 or 22. Lynn Craig 

tested positive on July 28. Sergeant Craig did not go back to work after 

testing positive for COVID-19, and his condition worsened over the next

weeks. He was admitted to the hospital with pneumonia on July 28 and 

remained in the hospital until his death five weeks later.

¶8 Sergeant Craig’s secretary, Jacqueline Shepard, testified that 

she worked with Sergeant Craig daily. She was out of the office on vacation 

in late June 2021 and returned to work on July 12. She worked with Sergeant 

Craig on July 12 and 13, but an injury prevented her from returning to work. 

She said Sergeant Craig typically held work meetings in his 12 x 12 office, 

sometimes closing the door. She also claimed that Sergeant Craig met with 

other supervisors in another 12 x 12 office. Shepard reported that Sergeant 

Craig often wore a mask because his office was not configured for two 

people to stay six feet apart. He usually met with others from outside the 

building, including officers and civilian vendors. Shepard maintained the 

Department failed to notify her that a close contact of hers had COVID-19

and that at least nine people were missing from Sergeant Craig’s close 

contacts list.

¶9 Others who worked with Sergeant Craig also testified. His 

supervisor said Sergeant Craig had no symptoms until July 19. He also 

testified that Sergeant Craig typically wore a mask when meeting others.

The head of the police department’s safety programs testified there was no 

report that anyone on Sergeant Craig’s close contacts list tested positive for 

COVID-19 during July.
CRAIG v. CITY OF PHOENIX/CITY OF PHX

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¶10 Lynn Craig and the City of Phoenix each called a testifying 

medical expert. Lynn Craig called Dr. Craig H. Smith, and the City of 

Phoenix called Dr. Daniel E. Brooks. Both experts reviewed medical 

records, documents, and Lynn Craig’s statements about her husband’s 

condition before his hospitalization.

¶11 Lynn Craig told Dr. Smith that Sergeant Craig was concerned 

that someone in his office, probably before July 10, was coughing a lot. This 

person was never identified. Lynn Craig learned this information from 

Sergeant Craig’s brother, who said he learned it from Sergeant Craig when 

they met for a meal. A text message from Sergeant Craig’s brother stated, 

“He [Sergeant Craig] mentioned something [about] someone in his office 

that had Covid when we were at breakfast on July 10th.” Relying on Lynn 

Craig’s information, Dr. Smith testified that this unknown coughing person 

was likely infected with COVID-19 and gave it to Sergeant Craig. Dr. Smith

testified that it was statistically more likely that Sergeant Craig became 

infected at work because he “spent much more time with highly unknown 

individuals” at work and had a higher chance of infection “from 

individuals where we just didn’t know if they were infected or not.”

¶12 Dr. Brooks testified that based on what the medical records 

noted about the onset of symptoms and COVID-19’s incubation period, 

Sergeant Craig was likely exposed around July 15 or 16—when he attended 

the financial seminar. Dr. Brooks testified that the proposed course of the 

disease, starting with the exposure around July 6, leading to a positive 

COVID-19 test result on July 19, and resulting in severe illness on July 25 

when Sergeant Craig went to the hospital, would be a “very unique” course

for COVID-19.

¶13 Particularly significant here is that the ALJ sustained hearsay 

objections to questions presented to Lynn Craig and Shepard during their 

testimony. Lynn Craig testified that Sergeant Craig was concerned about 

COVID-19 exposure from the person coughing at work. But the ALJ 

sustained the City’s hearsay objection when she was asked about Sergeant 

Craig’s awareness of the exposure. Similarly, the ALJ did not allow Shepard

to answer questions about the coughing incident.

¶14 In a post-hearing memorandum provided before the evidence 

closed, Lynn Craig provided an offer of proof of the excluded testimony. 

See Ariz. Admin. Code R20-5-148(B). First, she avowed that if allowed to 

testify, she would testify that Sergeant Craig came home from work shortly

before July 10 and told her that he met with someone in his office who was 

coughing and was concerned that this person had COVID-19. She would 
CRAIG v. CITY OF PHOENIX/CITY OF PHX

Decision of the Court

5

also testify that on July 12, Sergeant Craig told her that the coughing person 

had tested positive for COVID-19. He never told her the person’s name. She 

also would have testified that Sergeant Craig believed he contracted 

COVID-19 at work. Second, if allowed to testify, Lynn Craig avowed that 

Shepard would corroborate that Sergeant Craig thought he was exposed to 

COVID-19 by the unidentified person coughing in his office. Sergeant Craig 

told Shepard that the person had tested positive for COVID-19. Lynn Craig 

argued that substantial justice required that the testimony be received and 

considered by the ALJ. The City of Phoenix argued that the proposed

testimony was unreliable.

¶15 The ALJ denied the admission of the proposed testimony 

because it was “essentially cumulative” and “even if allowed, does not 

support a factual determination that the unknown individual was COVID 

positive.” After considering the evidence received, the ALJ denied 

compensability, concluding that Lynn Craig did not meet her burden of 

proof. The ALJ affirmed the decision without further findings or 

conclusions upon administrative review. This petition for special action 

review followed. We have jurisdiction under A.R.S. §§ 12-120.21(A)(2), 

23-951(A), and Arizona Rule of Procedure for Special Actions 10.

DISCUSSION

¶16 When reviewing a workers’ compensation award, we defer to 

the ALJ’s factual findings but review questions of law de novo. See Young v. 

Indus. Comm’n, 204 Ariz. 267, 270, ¶ 14 (App. 2003). We affirm an ALJ’s 

findings if any reasonable evidence theory supports them. Perry v. Indus. 

Comm’n, 112 Ariz. 397, 398-99 (1975).

¶17 “[D]eath or injury from COVID-19 is compensable where the 

statutory requirements for workers’ compensation are met.” W. Millwork v. 

Indus. Comm’n, 105 Ariz. Cases Dig. 47, 49, ¶ 1 (App. Sept. 21, 2023). The 

claimant seeking benefits must prove by a preponderance of the evidence 

that the infection arose out of and in the course of employment. See A.R.S. 

§ 23-1021; Yates v. Indus. Comm’n, 116 Ariz. 125, 127-28 (App. 1977); Warner 

v. Indus. Comm’n, 78 Ariz. 317, 319 (1955).

¶18 The ALJ found that Lynn Craig failed to establish a 

compensable injury. But the ALJ refused to consider all the evidence 

offered. The ALJ did not allow testimony from Lynn Craig and Shepard

that Sergeant Craig had told them that someone he met tested positive for 

COVID-19. We must determine whether the exclusion of the evidence was

reversible error.
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¶19 “Parties to an Industrial Commission hearing have a 

fundamental right to present evidence to support or defend the claim.” 

Horan v. Indus. Comm’n, 167 Ariz. 322, 326 (App. 1991); see also Rosovich v. 

Indus. Comm’n, 133 Ariz. 374, 375 (1982) (“A claimant should have an 

opportunity to develop the evidence relevant to the hearing.”). The Arizona 

Rules of Evidence do not apply to a Commission hearing. Instead, a less 

formal standard for the admissibility of evidence applies, with the ALJ to 

“conduct the hearing in any manner that will achieve substantial justice.” 

A.R.S. § 23-941(F). The statute relaxes evidentiary rules “so that the greatest 

amount of competent evidence [is] available to the Commission for its 

deliberation upon an award.” Gordon v. Indus. Comm’n, 23 Ariz. App. 457, 

460 (1975). The statute expands, rather than restricts, the evidence available 

to the ALJ. See McBath & Young Wrecking Co. v. Indus. Comm’n, 123 Ariz. 192, 

194 (App. 1979).

¶20 The ALJ may admit and rely on hearsay to support its 

findings. Coulter v. Indus. Comm’n, 198 Ariz. 384, 387 (App. 2000). To be sure, 

policies underlying the rules of evidence guide the ALJ’s evidentiary 

rulings. See id. at 388. For example, the ALJ should consider the reliability

of hearsay, its importance, the availability of similar evidence, the reason 

for a declarant’s unavailability, and the importance of cross-examination. 

Id. But the ALJ’s proceedings must achieve substantial justice. Id.

¶21 Here, the ALJ sustained the hearsay objections and then 

denied the offer of proof, concluding that the proffered testimony 1) was 

cumulative and 2) did “not support a factual determination that the 

unknown individual was COVID positive.” The ALJ reasoned that it had 

considered Lynn Craig’s testimony about Sergeant Craig’s meeting with the 

unknown person who coughed in his office. But the ALJ allowed that

testimony only for Sergeant Craig’s mental state. The testimony was 

admitted for consideration that Sergeant Craig was concerned about 

COVID-19 exposure, not for the proposition that Sergeant Craig met with a 

co-worker who was coughing in his office and that the person later tested 

positive for COVID-19. Similarly, Dr. Smith considered the testimony when 

formulating his expert opinion about causation, but the ALJ still had not 

admitted the testimony for its truth. The testimony was not cumulative

because it was admitted for a different purpose. Cf. Felipe v. Theme Tech 

Corp., 235 Ariz. 520, 526, ¶ 22 (App. 2014) (Evidence is cumulative if it is 

more evidence of the same character and supports a fact already established 

by other evidence.).

¶22 Lynn Craig and Shepard would have testified that they were 

told the unknown co-worker tested positive for COVID-19 shortly after 
CRAIG v. CITY OF PHOENIX/CITY OF PHX

Decision of the Court

7

meeting with Sergeant Craig. Even though the text message from Sergeant 

Craig’s brother supported that someone in the office had COVID-19, the 

proffered testimony would add that the coughing person who met with 

Sergeant Craig tested positive. Such testimony would be relevant to 

determining whether Sergeant Craig was exposed to a COVID-19-positive 

individual at work. Thus, the proffered evidence would support Dr. Smith’s 

causation theory, which the ALJ found less probable than Dr. Brooks’s 

theory.

¶23 We will not presume that the Commission reached the correct 

result if it erroneously excluded important evidence on technical grounds. 

See Gordon, 23 Ariz. App. at 460-61; Cash v. Indus. Comm’n, 27 Ariz. App. 

526, 533 (1976). Erroneously excluding evidence in an Industrial 

Commission case is harmless only if the evidence “could not have swayed 

the result.” Horan, 167 Ariz. at 326; see also Gordon, 23 Ariz. App. at 460 

(“[R]eversible error is more likely to occur by the exclusion of admissible 

evidence than the inclusion of incompetent evidence.”). The City asserted

at oral argument that even if it were error for the ALJ to sustain its hearsay 

objections, the error was harmless. As explained, the testimony could have 

changed the result if heard and found credible.

¶24 The ALJ may assess witness credibility and the weight of a 

witness’s testimony. Koval v. Indus. Comm’n, 23 Ariz. App. 277, 279 (1975).

But “it is almost impossible” to make a credibility judgment “from a written 

record.” Brooks v. Indus. Comm’n, 24 Ariz. App. 395, 397 (1975). Without 

hearing the testimony, the ALJ concluded that the evidence would not 

support a factual determination that the unknown individual had 

COVID-19. But if credible, the testimony could have swayed the result. See 

Horan, 167 Ariz. at 326. Thus, the ALJ’s evidentiary rulings did not achieve

substantial justice. See A.R.S. § 23-941(F).

CONCLUSION

¶25 We set aside the award.