Benedict v. Kern County Employees Retirement Assn.

Filed 6/2/08 Benedict v. Kern County Employees Retirement Assn. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Linda S. Etienne, Commissioner.

B. C. Barmann, Sr., County Counsel, Judith M. Denny, Deputy County Counsel, for Defendant and Appellant.

Law Offices of Richard J. Papst and Richard J. Papst for Plaintiff and Respondent.

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Plaintiff John Benedict was granted a non-service-connected disability retirement and denied a service-connected disability retirement by defendant Kern County Employees Retirement Association (the Association). The superior court sustained Benedicts petition for a writ of mandate directing the Association to reverse its decision and grant him a service-connected disability retirement. On appeal, the Association claims that the court applied an incorrect standard of review: Instead of undertaking an independent determination of whether Benedicts disability was service connected based on all the evidence, the court sustained the petition after finding merely that the record contained substantial evidence in support of Benedicts position. We agree with the Association, reverse the judgment, and remand the case to the trial court.

FACTUAL AND PROCEDURAL HISTORIES

Benedict filed the writ petition in the superior court on October 23, 2006. It alleged that, from 1990 to 2000, Benedict was employed as a senior air quality inspector for the San Joaquin Valley Air Pollution Control District. In 2000, when he was 64 years old, he allegedly began to be forgetful, to have difficulty performing familiar work and communicating coherently, and to be overly emotional and sensitive. He was placed on leave. On April 23, 2001, he applied for service-connected disability retirement benefits. The Association denied this application, instead granting non-service-connected disability retirement benefits on August 22, 2001. Benedict filed an administrative appeal, which was referred to a hearing officer.

The hearing took place on April 18, 2006. The evidence consisted of Benedicts testimony, reports of several doctors and mental health professionals, and other documents. The medical reports reached conflicting conclusions. For example, Bettina Harner, M.D., Benedicts personal physician, prepared a report on May 1, 2001. She found dementia arising from early Alzheimers disease and opined that Benedict was permanently unable to perform his job duties. She stated that his condition did not arise from his job. Randall C. Epperson, Ph.D., to whom Benedict was referred by the employer, examined him on September 21, 2000, and found that he suffered a pervasive reduction in [his] cognitive efficiency. Dr. Epperson made a diagnosis of dementia and opined that Benedict could not carry out his job responsibilities. He stated that Benedicts condition did not arise from his employment. By contrast, Carroll M. Brodsky, M.D., evaluated Benedict on May 21 and June 3, 2002, and found no evidence of dementia arising from Alzheimers disease or any other cause. He found no evidence of impairment of work functions and could not account for the period during which Benedict had difficulty at work. Michael A. Kasman, M.D., examined Benedict on September 9, 2002, and also did not believe he had dementia or Alzheimers disease and opined that Benedict could perform his customary job duties. Claude S. Munday, Ph.D., performed an evaluation on December 10, 2002, and concluded that there was no dementia.

As Benedicts counsel has conceded, only one medical opinion supported the view that Benedict had a disabling condition arising from his work. In a letter dated March 27, 2003, Alan R. Cole, M.D., opined that Benedict had no dementia and that his period of dysfunction at work was caused by a mood disorder arising from work stress.^[1]

The hearing officer issued proposed findings and a recommended decision on June 14, 2006. Without accepting any particular diagnosis, the hearing officer found that Benedict was incapacitated and unable to perform his job duties. He found overwhelming the evidence that the disability was not work-related and outweighed the contrary opinion of Dr. Cole. On July 26, 2006, the Association adopted the hearing officers recommendation to grant non-service-related disability retirement benefits.

The court heard the writ petition on March 19, 2007. It engaged in a discussion with counsel about the nature of its review of the Associations decision and about the part Dr. Coles report would play in the courts review:

THE COURT: Am I going to be looking to Dr. Coles report almost exclusively because, Mr. Papst [Benedicts counsel], I am in the process of developing a technique for review of these types of matters. What I have seized uponand it is likely toits not only going to occur here, but its likely to arise in the future. Tell me if my method for evaluating these things is off base in your view. What I am really looking for because of the presumption of correctness of the retirement boards determination combined with the fact that the petitioner has the burdenwhich you do agree, correct?

MR. PAPST: I do, your Honor.

THE COURT: The petitioner has the burden. What I have done is started to examine the record to look for substantial evidence that would both meet that burden and be able to defeat the presumption of correctness that the boards determination enjoys. So I am really trying to isolate out facts that wouldIm looking for what is there and then disregarding essentially everything that exists that is contrary to what your client is after. Im looking for that substantial evidence that favors your client, and if I cant find it, you lose. If I can find it and its substantial, then the [w]rit gets granted. And so when Im looking for this, Im looking for that kernel, that nugget. When Im doing that, am I going to be looking exclusively at Dr. Coles report?

MR. PAPST: Yes, your Honor.

THE COURT: All right.

MR. PAPST: With regard to the medical evidence.

THE COURT: And thats really what Im looking for I think in this particular case.

The courts written order reflected the same focus on whether the record contained substantial evidence supporting Benedicts claim:

The issue is whether petitioner has met his burden of proving that there is a real and measureable connection between the job and the disability. The Board determined that petitioner was disabled, but that the disability was not service-connected. That finding is entitled to a presumption of correctness. The finding that petitioner is disabled is not disputed; the only dispute is whether it is service-connected within the meaning of Govt. Code  31720. To support his claim that the record contains evidence which proves a real and measurable connection between the disability and the job, petitioner relies principally on the reports of Alan R. Cole, M.D., and Charles Potter, M.D.^[[2]]

[Dr. Potters report does not show a causal connection between Benedicts employment and his condition.] [] Dr. Cole initially conducted a thorough examination of petitioner, and a review of petitioners deposition transcript, a review of at least some of petitioners employment records, and a review of petitioners medical records, including the report of Dr. Epperson. Dr. Cole expresses his certainty that petitioner was quite stressed during the last couple of years of his employment, and that this was due to real and actual events of his job, independent of whether he has a dementia or not. He concludes that [neuropsychological] testing is needed in order to permit him to form an opinion as to whether there was an industrial injury component to petitioners disability. That testing was subsequently done by Charles Munday, M.D., who concluded that petitioner did not suffer from dementia. Dr. Mundays evaluation was considered, along with other records and reports, by Dr. Cole in a follow-up report. In that report, Dr. Cole concurs that petitioner did not suffer from dementia, but had a mood disorder. He further states that there is abundant evidence that petitioner had a work-related Mood Disorder which caused his [dysfunction].

Given this firm conclusion, the fact that it was based upon a thorough review of petitioners medical and employment records, that it was reached only after further testing and evaluation considered by Dr. Cole critical to an accurate diagnosis, it cannot be said that Dr. Coles report and opinion does not constitute substantial evidence of a real and measurable connection between petitioners employment and his disability.

The court sustained Benedicts petition and issued a writ of mandate. It directed the Association to set aside its decision and issue a new decision granting service-connected disability retirement benefits.

DISCUSSION

Where, as here, a trial court reviews a final administrative decision that substantially impacts a fundamental vested right, the trial court both examines the administrative record for errors of law and exercises its independent judgment upon the evidence. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 816, fn 8; Bixby v. Pierno (1971) 4 Cal.3d 130, 143; Levingston v. Retirement Board (1995) 38 Cal.App.4th 996, 1000.) In carrying out this independent review, however, the trial court must afford the agencys decision a strong presumption of correctness and must impose upon the petitioner the burden of showing that the agencys findings are contrary to the weight of the evidence. (Fukuda v. City of Angels, supra, 20 Cal.4th at p. 817.)

Our task is to determine whether substantial evidence in the administrative record supports the trial courts ruling (Bixby v. Pierno, supra, 4 Cal.3d at p. 143, fn. 10), except when the appellate issue is a pure question of law. The question presented in this casewhether the trial court applied the correct standard of reviewis a question of law. We review questions of law de novo. (Bostean v. Los Angeles Unified School Dist. (1998) 63 Cal.App.4th 95, 107-108.) If the trial court did not apply the correct standard of review, we have no choice but to reverse and remand to allow the trial court to reconsider the case in light of the correct standard. (Barber v. Long Beach Civil Service Com. (1996) 45 Cal.App.4th 652, 660.)

The determination the agency had to make, by a preponderance of the evidence, was whether there was a real and measurable connection between Benedicts job and his disability. (Bowen v. Board of Retirement (1986) 42 Cal.3d 572, 578-579.) In carrying out its independent review, the trial court had to decide whether the agencys decision was against the weight of the evidence, subject to the presumption of correctness. This means the court had to consider all the evidence and decide whether Benedicts presentation in the trial court sustained his burden of overcoming the presumption of correctness and showing that the weight of the evidence presented by both sides in the administrative hearing was contrary to the agencys finding of no real and measurable connection between the disability and the employment.

The trial courts oral remarks and written order both demonstrate that it did not review the agencys decision in the required manner. According to the courts own description of its procedure, it looked at the record to see whether Benedict presented substantial evidence of a real and measurable connection between his disability and his job while disregarding the Associations evidence to the contrary. The court stated its intention to proceed in this way at the hearing; its order, which discussed only Benedicts evidence in support of his claim, carried out its intention. The effect of the standard the court employed was to deprive the Association of the opportunity to have its evidence weighed at all in the writ proceedings. If the court were always to proceed in this way in administrative mandamus matters, agency decisions would be reversed in every case in which the petitionerregardless of whether it is the employee or employerhas substantial evidence on its side, no matter how strong the case on the opposing side. This cannot be the right approach.

The courts correct recitation of the presumption of correctness does not save its ruling. Application of the presumption of correctness is not a substitute for independent review of all the evidence. The Association was entitled to have the court determine whether Benedict overcame the presumption of correctness in light of all the evidence, not just the evidence that supported Benedicts position.

The court misstated the standard of review at the hearing, and its application of an incorrect standard is clear in its written order. Therefore, contrary to Benedicts argument, there is no issue of interpreting an ambiguous or silent ruling or record in the manner most favorable to the trial courts judgment or of presuming the court applied the right standard absent a record to the contrary. (See Code Civ. Proc.,  634; Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Steuri v. Junkin (1938) 27 Cal.App.2d 758, 760.)

Benedict points out that the trial court raised the standard-of-review issue in the hearing and invited counsel to comment, but counsel for the Association said nothing. We will not, however, hold the issue to be waived due to lack of objection in the trial court. The standard the court applied would cause the respondents evidence to be disregarded in every case. The court said it was in the process of developing a technique for review of these types of matters, indicating that it intended to employ this erroneous approach in all similar cases. In light of this, the issue involves the publics interest in the due administration of justice, and we will exercise our discretion to reach it. (In re Marriage of Weaver (1990) 224 Cal.App.3d 478, 488; Redevelopment Agency v. City of Berkeley (1978) 80 Cal.App.3d 158, 167; United California Bank v. Bottler (1971) 16 Cal.App.3d 610, 616; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal,  398, pp. 450-451.)

For all these reasons, the judgment is reversed and the case remanded to the trial court for application of the correct standard of review. We express no opinion, of course, about what the outcome should be on remand.

DISPOSITION

The judgment denying the petition is reversed. The case is remanded to the trial court with directions to reconsider the case under the correct standard of review described in this opinion. The Association shall recover its costs on appeal.

_____________________

Wiseman, J.

WE CONCUR:

_____________________

Vartabedian, Acting P.J.

_____________________

Hill, J.

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^[1]Benedict was involved in an auto accident in 1998 while driving an employer-owned car home from an inspection, but he does not rely on this to support his claim of a service-connected disability.

^[2]We have corrected a typographical error in this paragraph. In the original, the text beginning The issue is whether and ending the meaning of Govt. Code  31720 was accidentally pasted into the middle of the final sentence of the paragraph.