Detective’s Exposure To Child Pornography Inadequate Basis For Workers’ Comp Claim

Roy Dunkelbarger was a Mesa, Arizona police officer for 23 years until his retirement in January 2016. He began as a patrol officer and worked through a variety of positions, including 15 years as a SWAT sniper, before joining the Video Services Unit in 2009. Dunkelbarger was tasked with video production, both creating training videos and extracting and manipulating crime scene videos.

In July 2015, the Video Services Unit was eliminated, and Dunkelbarger was transferred to the Computer Forensics Unit (CFU). In the CFU, Dunkelbarger continued to perform work as a certified forensic video analyst, but he also performed Internet Crimes Against Children (ICAC) investigations. Most ICAC cases began with cyber tips received from the National Center for Missing and Exploited Children. Electronic service providers, such as Google, Facebook, Yahoo, etc., scan their systems and send anything that could be child pornography to the Center. Using IP address locators, cyber tips are forwarded to the closest investigating agency.

Mesa’s CFU had six detectives, including Dunkelbarger and Sergeant Bina, assigned to handle the cases. When Dunkelbarger transferred to the CFU, he had never seen child pornography and he had no training in ICAC investigations.

On August 6, 2015, Dunkelbarger had been assigned 15 to 20 cyber tips that day and spent the last “couple hours” of his shift “looking at image after image after image” and “being stunned at the abuse” he saw. Dunkelbarger stated that his wife had been a victim of child abuse, which may have compounded his reaction to the images. After August 6, he noticed weight gain and increased stress, heart rate, and blood pressure.

After attending a mandatory PTSD training session on October 22, 2015, Dunkelbarger recognized his own symptoms and spoke to the presenter, Shelley Kaufman, Ph.D. He began treatment with Dr. Kaufman and filed a workers’ compensation claim.

The Arizona Court of Appeals rejected Dunkelbarger’s claim. The Court noted that under Arizona law, workers’ compensation claims for mental health injuries are not compensable unless some unexpected, unusual or extraordinary stress related to the employment was a substantial contributing cause of the injury. Dunkelbarger must prove that (1) the work-related stress was a substantial contributing cause of the mental health injury, and (2) the stress was unexpected, unusual, or extraordinary.

“Psychological experts agreed that Dunkelbarger sustained a mental stress injury that arose out of and in the course of employment. The sole remaining issue was whether Dunkelbarger’s mental stress injury was causally related to his work within the meaning of the statute, i.e., was the stress unexpected, unusual or extraordinary.

“The test for determining the measure of emotional stress is not a subjective one (i.e., how the employee reacts to the job), but an objective one (i.e., do the duties imposed by the job subject the employee to greater stress than his fellow employees). We interpret ‘fellow employees’ to mean employees performing the same type of work as the Dunkelbarger.

“In this case, the evidence established Dunkelbarger was exposed to fewer ICAC investigations than his fellow CFU detectives. Although there was evidence that one other CFU detective had been referred for counseling, that detective had been investigating a case that was unique enough that everyone involved with the case was similarly required to go to counseling. Here, there is no evidence Dunkelbarger was required to work on an unexpected or unusual case. And there was no evidence that Sergeant Bina treated Dunkelbarger any differently than the other detectives in his unit. Furthermore, Dunkelbarger’s testimony that his personal reaction to the ICAC work may have been amplified by his wife’s history of having been a victim of child abuse suggests that his reaction was the result of a personal, non-work-related experience, rather than an unusual or unexpected work event.”

Dunkelbarger v. Industrial Commission of Arizona, 2017 WL 2438051 (Ariz. App. 2017).