Reynolds v. City of San Carlos

Opinion

Kent D. Reynolds appeals from the judgment of the superior court denying his petition for a writ of mandate pursuant. to Code of Civil Procedure section 1094.5. In his petition appellant sought to compel the Civil Service Commission of the City of San Carlos (Commission) to grant his application for service connected disabili

Appellant, a 32-year-old firefighter, injured his knee on October 16, 1977, while fighting a fire. At the time, he was an employee of the city and a local safety member of PERS. A few months after his injury, appellant was assigned to a temporary, light-duty job while continuing treatment for the disability. Although his treating physician and a consultant recommended surgery on his knee, appellant refused the surgery and applied for permanent disability retirement.

Following an evidentiary hearing on June 8, 1978, the Commission found that appellant suffered an “on-the-job injury to his knee,” and that as a result of his injury he is “unable to engage in the usual duties of a fire suppression'employee.” The Commission denied appellant’s application for retirement, however, after also finding, inter alia, that: “11) Because the medical probabilities are great that Firefighter Reynolds will be restored to normal functioning if he submits to surgery, his disability is not permanent.

“14) The recommended medical treatment is the kind of medical treatment to which a reasonable man would submit.”

The superior court reviewed the minutes of the Commission’s meeting and the evidence introduced and, exercising its independent judgment, affirmed the Commission’s denial of appellant’s application for retirement. The court found “that the petitioner’s refusal of surgery was not reasonable under the circumstances; and that the commission had the jurisdiction, by analogy to the Workmen’s Compensation cases ... to require the petitioner to undergo the recommended surgery.”

We find no error and affirm the judgment.

A

ppellant first asserts that the Commission was compelled to grant him retirement after finding that an industrial injury rendered him unable to pursue his usual occupation of fire suppression employee.

Although the workers’ compensation law (Lab. Code, § 3200 et seq.) and the Public Employees’ Retirement Law (Gov. Code, §§ 20000-21500) are not coordinated in all respects and are administered by independent boards, it is clear that they supplement each other. The jurisdiction of the WCAB “is exclusive only in relation to its own objectives and purposes and at the very most overlaps the subject matter jurisdiction of the pension board on a single issue of fact only, the issue as to whether an injury or disability is service-connected. Thus, it is also manifest that the pension board does not lose its inherent power to retiré a city employee who ‘is physically or mentally incapacitated for the performance of duty’ simply because the employee” may also be eligible for workers’ compensation benefits. (Pathe v. City of Bakersfield, supra, 255 Cal.App.2d at p. 415.)

Appellant argues that only the WCAB can make a finding under Labor Code section 4056, incorporating a substantive rule of tort law, which provides: “No compensation is payable in case of the death or disability of an employee when his death is caused, or when and so far as his disability is caused, continued, or aggravated, by an unreasonable refusal to submit to medical treatment, or to any surgical treatment, if

It is true that there is no comparable provision in the Public Employees’ Retirement Law, but, as we have seen, neither the Constitution nor the Labor Code restricts a retirement board, here the Commission, from exercising its authority to determine eligibility for retirement under PERS. The Commission can apply workers’ compensation laws by analogy when making a finding of eligibility or noneligibility. (See Heaton v. Marin County Employees Retirement Bd. (1976) 63 Cal. App.3d 421 , 428 [ 133 Cal.Rptr. 809 ], and discussion below.)

B.

Appellant next argues that Labor Code sections 4850 and 4851 and Government Code section 21025.4 vest in the WCAB the exclusive jurisdiction to determine when an industrial disability becomes permanent.

Appellant misreads the code sections. Labor Code section 4850, a workers’ compensation provision, gives to a local safety member disabled in the course of his employment a benefit not afforded to injured workers generally. Section 4850 provides in pertinent part: “Whenever any ... city fireman ... who is a member of the Public Employees’ Retirement System ... is disabled, whether temporarily or permanently, by injury or illness arising out of and in the course of his duties, he shall become entitled, regardless of his period of service with the city ..., to leave of absence while so disabled without loss of salary, in lieu of temporary disability payments, if any, which would be payable under this chapter, for the period of such, disability but not exceeding one year, or until such earlier date as he is retired on permanent disability .... ” Payments pursuant to section 4850 are not salary but workers’ compensation benefits. (Boyd v. City of Santa Ana (1971) 6 Cal.3d 393 , 397 [ 99 Cal.Rptr. 38 , 491 P.2d 830 ].)

Labor Code section 4851 provides that the governing body of a local agency, “in addition to anyone else properly entitled,” including PERS, may request the WCAB to determine whether the disability under section 4850 was industrially caused, and the WCAB shall make such a determination. Thus, the fact finding body , for PERS has discretion to refer the issue of causation, and if it does so, the WCAB must make the

Government Code section 21025.4 sets the effective date of a disability retirement of a local safety member under PERS as the date upon which his section 4850 benefits expire (one year) or he is found permanent and stationary by the WCAB, whichever first occurs. A finding by the WCAB of permanent disability, which may be partial for the purposes of workers’ compensation, does not bind the retirement board on the issue of the employee’s incapacity to perform his duties. (See Gov. Code, § 21025; cf. Harmon v. Board of Retirement (1976) 62 Cal.App.3d 689 , 697 [ 133 Cal.Rptr. 154 ].) At the most a judgment of the WCAB is res judicata and binding on PERS only “where: (1) the identical issue is under consideration; (2) a final judgment was reached on the merits in the earlier adjudication; (3) the party against whom that judgment is now asserted was a party or in privity with a party in the prior action.” (Summerford v. Board of Retirement (1977) 72 Cal.App.3d 128 , 130 [ 139 Cal.Rptr. 814 ].)

C.

Appellant next argues that the Commission had no authority under Government Code sections 21020 and 21025 to apply the workers’ compensation provision in Labor Code section 4056 in determining permanent disability for retirement under PERS. This argument has no merit.

Although management and control of PERS is vested in the PERS board, which may make such rules as it deems proper (Gov. Code, §§ 20103, 20120), the Legislature has provided that the governing body of a contracting agency employing a local safety member shall determine whether such an employee has become incapacitated physically or mentally for the performance of his or her duties and is eligible to retire for disability. (Gov. Code, §§ 21025, 21024.) The governing body of a contracting agency may delegate such authority to a subordinate officer (Gov. Code, § 21034), and in the case before us the Civil Service Commission of the City of San Carlos performs such duties.

The Commission found that appellant’s disability was not permanent because the “probabilities are great that [he] will be restored to normal functioning if he submits to surgery . .. . ” In making this finding, the Commission relied on Labor Code section 4056 (see part A above), which denies workers’ compensation benefits if an injured employee unreasonably refuses recommended medical treatment. Section 4056 merely codifies the common law rule requiring mitigation of damages (4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 870, p. 3158), which is properly applied in determining eligibility for disability retirement. The Commission has inherent power under Government Code section 21025 to determine whether a claimant has undergone the medical treatment that reasonably could be expected to effect a cure.

As previously discussed, the Commission also has the authority to apply workers’ compensation law by analogy. (See Heaton v. Marin County Employees Retirement Bd., supra, 63 Cal.App.3d at pp. 427-428.)

Appellant argues that any doubt about application of the condition contained in Labor Code section 4850 must be resolved in his favor, since pension laws are to be liberally construed. We do not agree that the doctrine of liberal construction precludes the Commission from applying the common sense rule that appellant is not permanently disabled when he unreasonably refuses remedial surgery. As stated in Mansperger v. Public Employees’ Retirement System (1970) 6 Cal. App.3d 873 [ 86 Cal.Rptr. 450 ], “The object of the disability allowance

In summary, we find that the Commission did not exceed its authority and therefore did not abuse its discretion in determining that appellant was not permanently disabled.

Appellant contends that even though the Commission had the authority to determine permanent disability, it abused its discretion, in that its findings are not supported by the evidence. (Code Civ. Proc., § 1094.5, subd. (b).)

Where a vested fundamental right is substantially affected by a determination of a legislative agency, the trial court, on an application for a writ of mandate, must review the case under the independent judgment test, i.e., the trial court must determine whether the weight of the evidence supports the agency’s findings. (Code Civ. Proc., § 1094.5, subd. (c); see Dickey v. Retirement Board (1976) 16 Cal.3d 745 , 751 [ 129 Cal.Rptr. 289 , 548 P.2d 689 ].) The trial court in the case before us applied the independent judgment test. On our review of the trial court’s judgment, however, we must determine only whether substantial evidence supports the trial court’s ruling. (See 5 Witkin, Cal. Procedure (2d ed. 1971) Extraordinary Writs, § 217, p. 3974; Cal. Administrative Mandamus (Cont.Ed.Bar Supp. 1981) §§ 15.23-15.26, pp. 176-178.)

At the Commission hearing on June 8, 1978, the parties stipulated that appellant’s injury was industrially caused, that his injury incapacitated him from performing fire suppression duties, and that the only issues before the Commission were whether appellant had an affirmative duty to seek medical treatment, i.e., surgery on his right knee, and whether in the absence of the surgery the city was obligated to pay him disability retirement. The parties further stipulated that various letters could be introduced into evidence as exhibits. Among those letters were two from John J. Lavorgna, M.D., in the form of medical reports in

Appellant testified on his own behalf that Dr. Horowitz had presented him with three possibilities if he underwent surgery: “1) If things went right and they opened it [the knee] up and found something, it would be corrected and he would be completely recovered; 2) If they opened it up and found nothing, he would remain the same; 3) there could be some damage by opening it up and then he could be worse.” He stated the doctor did not give him any percentage; he gave all three equal weight. Appellant stated that “he was not inclined to go for surgery, that he is afraid of it, that he wanted a 100% guarantee for success since it was his body.” No doctor had given him such a guarantee. No medical evidence recommending against surgery was introduced.

In rebuttal, the city attorney called Gary W. Schmitz, fire chief for the city, and Lydia Gathers, claims examiner for Gates, McDonald Co., who administer the workers’ compensation program for the city. Schmitz testified, without objection, that he had conferred with Dr. Horowitz about appellant’s knee condition and that Dr. Horowitz stated that he was about 90 percent sure that appellant’s knee injury was a meniscus tear and that appellant’s chance for recovery was 98 percent if surgery were performed. Gathers testified, without objection, that she had consulted with Dr. Lavorgna, who advised her that appellant had a 90 percent -chance of recovery after surgery.

Based upon the above evidence, the Commission denied appellant’s application for retirement after making detailed findings of fact including, inter alia, that appellant’s disability was not permanent or of extended and uncertain duration and that the recommended medical treatment is the kind to which a reasonable man would submit.

The hearing before the Commission was tape recorded, and the parties, having lost the tape transcription, stipulated that the clerk’s detailed minutes of the meeting, including the exhibits, could be submitted to the superior court at the hearing on the writ. Appellant made no objections in the trial court to the admissibility of evidence at the Commission hearing. (See Borror v. Department of Investment (1971) 15 Cal.App.3d 531 , 537 [ 92 Cal.Rptr. 525 ].)

Appellant now contends that there was no substantial evidence to support the Commission’s findings and that the evidence does not meet the requirement of Government Code section 21020 that the Commission base its findings on “competent medical opinion.” He does not assert that the testimony of Fire Chief Schmitz or Claims Examiner Gathers about their conversations with the physicians was inadmissible, but he does urge that they were lay people who were not competent to give a medical'opinion and therefore their testimony was not substantial evidence. He points out that percentage of success was not contained in the body of any three of the letters from physicians.

The board of administration of PERS (and impliedly the governing body of a contracting agency) is subject to the Administrative Procedures Act (APA). (Gov. Code, § 11501; see, generally, Witkin, Cal. Evidence (2d ed. 1966) § 21 et seq., p. 22 et seq.) Section 11513, subdivision (c) of the act provides that “The hearing need not be conducted according to technical rules relating to evidence and witnesses.. .. Hearsay evidence may be used for the purpose of supplementing or explaining other evidence but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.. . . ”

In his March 13, 1978, letter to Ms. Gathers, Dr. Lavorgna stated: “I would recommend at this time a repeat knee arthrogram with suspicion for a medial meniscus tear, if indeed this is present on the arthrogram, I would do a medial maniscectomy if the arthrogram is unrevealing, I would perform an arthroscopy and surgery as indicated. I would not delay this treatment since regaining range of motion of the knee may be difficult if more time is taken.” In his March 20, 1978, letter to Ms. Gathers, Dr. Lavorgna stated: “The patient was advised to have a knee arthroscopy done.... ” Dr. Horowitz, in a letter to Ms. Gathers on April 10, 1978, indicated that it was his personal advice to appellant that he should proceed with surgery.

The letters from Dr. Lavorgna and Dr. Horowitz, admitted into, evidence by stipulation, were substantial evidence to support the trial court’s findings. The testimony of Fire Chief Schmitz and Claims Examiner Gathers merely supplemented and explained the medical opinions of the two physicians.

The judgment is affirmed.

White, P. J., and Feinberg, J., concurred.