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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JERALD FRANZMEIER, Petitioner Employee,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

CITY OF TOLLESON, Respondent Employer,

AZ MUNICIPAL RISK RETENTION POOL, Respondent Insurance Carrier.

No. 1 CA-IC 23-0013

No. 1 CA-IC 23-0037

 (Consolidated)

Special Action - Industrial Commission

ICA Claim No. 20221310329

No. 20223530340

Carrier Claim No. BLCM WC 000000471892

No. BLCM WC 000000471855

The Honorable Kenneth Joseph Hill, Administrative Law Judge

AWARDS AFFIRMED

APPEARANCES

Jerald Franzmeier, Phoenix

Petitioner Employee

FILED 09-26-2024
2

Industrial Commission of Arizona, Phoenix

By Afshan Peimani

Counsel for Respondent

Jardine, Baker, Hickman & Houston, P.L.L.C., Phoenix

By Stephen C. Baker 

Counsel for Respondent Employer and Insurance Carrier

MEMORANDUM DECISION

Judge D. Steven Williams delivered the Court’s decision, in which 

Presiding Judge Michael J. Brown and Judge Daniel J. Kiley joined.

W I L L I A M S, Judge:

¶1 These consolidated appeals arise from Jerald Franzmeier’s 

claims for benefits premised on his belief that he suffered a compensable 

industrial injury by contracting “long COVID” while working as a 

firefighter. The Industrial Commission of Arizona (“ICA”) denied both 

claims. Because Franzmeier failed to meet his burden of establishing 

medical causation, a necessary element of his claims, we affirm the ICA’s 

awards.

FACTS AND PROCEDURAL HISTORY

¶2 Viewing the evidence in the light most favorable to sustaining 

the ICA’s award, Special Fund Div. v. Indus. Comm’n, 252 Ariz. 267, 269, ¶ 6 

(App. 2021), the record reflects the following. 

¶3 For nearly two decades, Franzmeier worked as a paramedic 

and firefighter for the City of Tolleson (“City”). On August 18, 2020, he flew 

home to Arizona after visiting family in Maryland. The next day, he 

returned to work for a 48-hour shift, working closely with others at the fire

station. On August 21, a co-worker tested positive for COVID-19. Five days 

later, Franzmeier tested positive. For the next ten days, Franzmeier 

quarantined at home before returning to work without incident. He 

experienced mild symptoms but never sought medical attention. 

¶4 More than a year later, while fighting a fire in November 2021, 

Franzmeier experienced a “sudden alteration in [his] mental status” that 

left him confused and disorientated, and caused him to hallucinate. He was 
FRANZMEIER v. CITY OF TOLLESON/AZ MUNICIPAL

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taken off duty and evaluated by a psychiatrist, who diagnosed him with 

post-traumatic stress disorder (“PTSD”). Franzmeier believed his PTSD and 

other mental health symptoms resulted from “long COVID” or a postCOVID condition. He also believed he contracted the COVID-19 virus in 

August 2020 while at work and not during his earlier travels to and from 

Maryland.

¶5 In May 2022, Franzmeier filed a Worker’s Report of Injury

describing the cause of his injury as “[b]odily exposure to COVID-19,” and

the injury itself as an “[i]nternal body infection” that injured his “[b]rain & 

immune system.” He listed his date of injury as August 21, 2020.

¶6 In August 2022, a retired Phoenix Fire Chief reviewed 

Franzmeier’s file for the City and opined that nothing connected

Franzmeier’s PTSD diagnosis to COVID-19. The City and the Arizona 

Municipal Risk Retention Pool (collectively, “the Respondents”) denied 

Franzmeier’s claim. Franzmeier timely requested a hearing before the ICA, 

which was initially scheduled for November 2022.

¶7 In the weeks before the scheduled hearing, Franzmeier 

submitted several documents as exhibits, including articles and 

information about how the COVID-19 virus is transmitted, airline 

protocols, and the infection rate for first responders. Both parties prepared 

to call lay witnesses (presumably to address the likelihood of contracting 

the virus at the fire station). The Respondents also prepared to call Dr. Marc 

Lee to opine about “whether or not [Franzmeier] contracted Covid-19 at 

work.”

¶8 The week before the scheduled hearing, Franzmeier’s wife 

checked him into an inpatient care facility for PTSD. Consequently, the ICA

hearing was postponed to February 2023.

¶9 In late December 2022, Franzmeier filed a second Worker’s 

Report of Injury, this time describing his injury as “[c]ognitive impairment” 

arising from the November 2021 event. He reported the date of injury as 

November 14, 2021, rather than the August 21, 2020 date he had listed in 

his first claim. Seemingly because Franzmeier reported different injury 

dates, the Respondents assigned a separate claim number to his December 

2022 claim and treated it separately from his May 2022 claim.

¶10 In any event, the Respondents summarily denied the 

December 2022 claim, and Franzmeier requested a hearing. Instead of 

consolidating the two claims and holding a single hearing, the ICA set a 

hearing date in June 2023 to address the December 2022 claim, while 
FRANZMEIER v. CITY OF TOLLESON/AZ MUNICIPAL

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keeping the already scheduled February 2023 hearing to address the May 

2022 claim.

¶11 Meanwhile, in preparation for the February 2023 hearing, 

neurologist Dr. Leo Kahn performed an independent medical examination

of Franzmeier at the Respondents’ request. Dr. Kahn physically examined

Franzmeier and reviewed the available records, including medical records.

Dr. Kahn acknowledged Franzmeier’s underlying psychological condition 

but concluded that no objective evidence supported Franzmeier’s claim that 

he sustained a neurological injury from contracting COVID-19 in 2020.

¶12 At the outset of the February 2023 hearing, the ICA 

Administrative Law Judge (“ALJ”) identified the contested claim as an 

alleged industrial injury that occurred on August 21, 2020, and framed the 

issue for the hearing as the compensability of that injury. Both parties 

concurred with the ALJ’s summation.

¶13 Franzmeier represented himself and, outside of his own 

testimony, called no witnesses. When asked why he had not requested a 

medical expert to testify on his behalf, Franzmeier responded, “I believe

that the -- the incident speaks for itself as -- as far as -- as mathematical 

possibilities.” Franzmeier then testified that he believed he contracted the 

virus in August 2020 while at work, not while traveling to or from

Maryland. In describing the injury he suffered, he recounted his PTSD 

symptoms and other cognitive events experienced in November 2021 and 

the months that followed. The ALJ asked Franzmeier whether he was 

asserting a claim that COVID-19 caused his mental health issues. 

Franzmeier testified that he had undergone an MRI that suggested “the 

possibility of a COVID claim because of COVID exposures,” and further

stated that the flashback he experienced in November 2021 “could be an 

exacerbation of COVID.” But when the ALJ pressed whether any doctor had 

opined that COVID-19 caused his PTSD symptoms, Franzmeier admitted 

that none had. Franzmeier concluded his testimony by asserting that during 

the relevant “14-day incubation period,” he had worked and slept for 304 

hours (out of the 336 total hours), which he claimed established only a 10% 

probability that he became infected outside of work.

¶14 The Respondents called Dr. Lee, who opined that Franzmeier 

probably contracted the virus during his trip to Maryland, despite 

Franzmeier’s attempts at mitigation (mask and glove wearing), because 

“the airport environment” presented a very high likelihood of exposure.

The Respondents also raised an affirmative defense that Franzmeier failed
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to timely bring his claim within the requisite one year from the date of

injury. Both parties filed written closing arguments.

¶15 The ALJ denied the claim as procedurally barred, finding 

Franzmeier believed he had contracted COVID-19 from a work-related 

exposure by September 12, 2020, yet failed to file a claim within the oneyear statute of limitations. A.R.S. § 23-1061(A). In making this finding, the 

ALJ reasoned that the “subsequent manifestation” of symptoms that 

Franzmeier traced back to his COVID-19 infection did “not reset the 

deadline for filing a claim.” Alternatively, the ALJ found that Franzmeier 

failed to establish a compensable industrial injury, having offered no

evidence of medical causation through medical opinion.

¶16 Meanwhile, days before the ALJ’s ruling issued, Franzmeier 

requested postponement of the June 2023 hearing scheduled to address the 

December 2022 claim. A different ALJ was assigned, who kept the June 2023 

hearing date in place but scheduled it for a “prehearing conference” to 

discuss the postponement request. The prehearing conference apparently 

took place off-the-record because no transcripts are included in the 

appellate record.

1

¶17 The second ALJ then wrote a letter to the parties stating:

“Pursuant to our June 5, 2023 conference, Mr. Franzmeier described his 

alleged November 14, 2021 brain injury as a ‘sequelae’ of COVID-19, which 

he claimed to have contracted at work in [the May 2022 claim].” The letter 

also noted that Franzmeier’s claim for a mental injury was addressed in the 

award denying the May 2022 claim, stating “the onset of COVID-19 

sequela—specifically the ’alteration in mental status’ occurring in 

November 2021—is not a basis for a ‘new’ claim under the facts present 

here.” The ALJ allowed Franzmeier to file a memorandum “providing the 

basis of his claim for a November 14, 2021 date of injury.”

¶18 Franzmeier submitted a memorandum, arguing, among other 

things, that the Respondents wrongly bifurcated his claim to obscure the 

scope of his injury and that the award denying the May 2022 claim was 

1 We have criticized the practice of off-the-record conferences. B & B 

Holdings v. Indus. Comm’n, 1 CA-IC 20-0051, 2021 WL 4958843, at *2–4, ¶¶ 7, 

18–19 (Ariz. App. Oct. 26, 2021) (mem. decision) (award set aside “because 

there [wa]s no record by which to evaluate any decisions made at the 

unrecorded status conference.”).
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erroneous. After the Respondents also filed a memorandum, the ALJ issued 

an order setting another conference date, which Franzmeier failed to attend.

¶19 The second ALJ then issued an award dismissing the 

December 2022 claim. In so doing, the ALJ summarized Franzmeier’s 

statements at the off-the-record prehearing conference in June 2023.

According to the ALJ, Franzmeier stated that in January 2022, his primary 

care physician told him that the radiographic evidence “suggested lesions 

on his brain that could have been caused by COVID-19.” A few months 

after his primary care physician relayed that information, Franzmeier filed 

the report of injury that became the May 2022 claim. Franzmeier also 

apparently emphasized that “ongoing and evolving Covid research is 

showing” that a brain injury “can be and is related to a Covid-19 infection.”

Relying on these statements, the ALJ concluded that Franzmeier predicated 

his December 2022 claim upon his purported contraction of COVID-19

while at work. Because Franzmeier claimed to have contracted COVID-19 

at work as part of his May 2022 claim, which was denied, the ALJ concluded 

that he was precluded from pursuing the second claim based, in substantial 

part, on the same assertion.

¶20 Franzmeier timely requested review of both awards, which

the ALJs summarily affirmed. These consolidated statutory special action 

reviews followed.

DISCUSSION

¶21 When reviewing findings and awards of the ICA, we consider

the evidence in the light most favorable to upholding the award. Lovitch v. 

Indus. Comm’n, 202 Ariz. 102, 105, ¶ 16 (App. 2002). We will uphold the 

ALJ’s findings if reasonably supported by substantial evidence. Malinski v. 

Indus. Comm’n, 103 Ariz. 213, 216 (1968).

¶22 Franzmeier had the burden of proving the material elements 

of his claims by a preponderance of the evidence. Brooks v. Indus. Comm’n, 

24 Ariz. App. 395, 399 (1975). This court will affirm an award based on any 

reasonable theory of the evidence. Perry v. Indus. Comm’n, 112 Ariz. 397, 

398–99 (1975).

¶23 Our review of the record reveals that Franzmeier only ever 

claimed one injury, a mental injury, from his COVID-19 infection. The ALJ 

found Franzmeier credibly testified that his mental injury first manifested 

on November 14, 2021. Record evidence supports that finding. As such, the 

ALJ erred in concluding that Franzmeier did not timely file his May 2022 

claim, which was filed only six months after Franzmeier’s November 2021 
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injury. However, Franzmeier offered no competent evidence showing, with 

a reasonable degree of medical probability, that his COVID-19 infection 

contributed to his mental injury. 

¶24 “If the result of an industrial accident is not clearly apparent 

to a layman, then the causal relationship of the accident to the physical or 

mental condition complained of must be established by expert medical 

testimony.” Phelps v. Indus. Comm’n, 155 Ariz. 501, 505 (1987) (emphasis 

added). This standard is met by showing to a reasonable medical 

probability that a particular work-related event was a contributing cause of 

an industrial injury. Caganich v. Indus. Comm’n, 108 Ariz. 580, 582 (1972). 

Thus, Franzmeier needed to offer medical expert opinion evidence linking 

his mental injury to his employment, but he offered none. Instead, he

testified to what his doctors told him, that there was “the possibility of a 

COVID claim,” but his testimony made clear that these opinions were 

speculative. The Respondents presented the only competent medical 

evidence on causation through Dr. Lee, who opined that Franzmeier was 

probably infected during his cross-country trip.

¶25 Thus, regardless of any errors by the ICA in the handling of 

Franzmeier’s claims, including the ALJ’s conclusion that the May 2022 

claim was untimely, Franzmeier did not sustain his burden of proving

medical causation. On this record, any ICA errors were harmless.

CONCLUSION

¶26 We affirm the awards.2

2 On its own motion, this court strikes Petitioner’s memorandum of case 

facts filed September 22, 2024, from the record, and denies all other pending 

motions and requests for relief.