Sherwood v. City of Los Angeles

Filed 1/28/08 Sherwood v. City of Los Angeles CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment and a writ of mandate of the Superior Court of Los Angeles County, David P. Yaffe, Judge. Affirmed.

Rockard J. Delgadillo, City Attorney, Carlos De La Guerra, Assistant City Attorney, and Martin R. Boags, Deputy City Attorney, for Defendants and Appellants.

Fullerton & Hanna and Gary Fullerton for Plaintiff and Respondent.

_________________

INTRODUCTION

Following a hearing before the Board of Rights, Rocky Sherwood (Sherwood) was removed from his position as a police officer for the City of Los Angeles (City). The Board of Rights made its recommendation based upon its findings that [b]etween January 26, 2002 and May 29, 2002, you, while on injured on duty status engaged in activities that were inconsistent with your medical claim of being temporarily disabled. Sherwood filed a petition for writ of administrative mandate to contest the termination. The trial court granted the petition and issued a writ ordering the City to reinstate Sherwood to his former position as a sworn police officer. The City seeks to have the writ of mandate reversed. We disagree and affirm.

FACTS

A. Background

Sherwood had the misfortune to be involved in two non preventable automobile accidents[1]while on duty: the first occurring on January 13, 1998, and the second on May 28, 1998. He was also involved in an off-duty automobile accident on January 4, 2001.

In the automobile accident on January 13, 1998, Sherwoods police vehicle was rear-ended. Sherwood received medical treatment to his knee and neck and returned to work. After the May 28, 1998 automobile accident, Sherwood received injury to his neck, lower back, knee and shin. Sherwood did not receive treatment for these injuries but continued to receive treatment for his injuries from the first accident.

On April 22, 1999, Sherwood underwent an examination by Dr. Richard Nussbaum. Sherwood had returned to full duty, but he complained of neck pain, sporadic lower back pain and left shoulder pain.

On December 27, 1999, Sherwood was examined by Dr. Dennis Ainbinder for pain and discomfort to his neck and knee. Dr. Ainbinder diagnosed Sherwood with a herniated cervical disk, lower back sprain, and a contusion to the right knee with possible torn meniscus. Sherwood continued to undergo physical therapy.

Sherwood worked full time until he underwent right knee surgery on November 14, 2000. He was deemed temporarily totally disabled (TTD). While off work TTD, Sherwood was regularly examined by Dr. Ainbinder. He was given notes from his physician and provided the notes to his supervisors.

On January 4, 2001, Sherwood was involved in a third automobile accident. This accident was off-duty and he reported pain to his neck, knees, lower back and hips. On January 16, 2001, Sherwood underwent an orthopedic examination by Dr. Ainbinder, who concluded that Sherwoods pre-existing injuries had been aggravated by his most recent automobile accident.

An MRI was conducted on Sherwoods knee, and Dr. Ainbinder advised Sherwood that he needed a second surgery. On June 16, 2001, Sherwood underwent a second surgery on his right knee. Throughout this period, Sherwood continued to be TTD.

Dr. Ainbinder continued to treat Sherwood. On December 10, 2001, Sherwoods workers compensation benefits related to his knee injury suffered during the second automobile accident on May 28, 1998 ran out.

On December 14, 2001, Sherwood was seen by Dr. Ainbinder and indicated he was suffering from constant cervical spine pain. He was not suffering from lumbar back pain, but his right knee was aggravated by walking. While off work TTD, Sherwood was continually examined by Dr. Ainbinder. In March 2002, Sherwoods workers compensation benefits ran out and he was placed on State Rate Disability pay of $123 weekly.

From January 26, 2002 through May 29, 2002, the City conducted six days of subrosa video surveillance while Sherwood was engaged in coaching his sons little league baseball team. The video surveillance depicted Sherwood throwing and catching baseballs, batting, carrying baseball equipment and demonstrating fielding and sliding techniques. He was never observed sliding, squatting or running, however.

On July 29, 2002, Sherwood underwent a Qualified Medical Exam by Dr. Jerrold Sherman. Dr. Sherman concluded that Sherwoods injuries had resolved sufficiently to return to work in a restricted duty status. Dr. Shermans opinion was brought to the attention of Dr. Ainbinder in November 2002. Dr. Ainbinder disagreed with it and ordered Sherwood to remain off work and continue treatment for his knee and neck.

In December 2002, Sherwood was informed by Sergeant Linder that there was a pending criminal and administrative investigation against Sherwood. Because of the investigation, Sherwood could not return to work even if he was able.

Sherwood had his third knee surgery on January 7, 2003. Again, Dr. Ainbinder ordered Sherwood to remain off work TTD.

On September 4, 2003, Sherwood saw Dr. Simon Lavi. Dr. Lavi advised Sherwood that major cervical surgery was required to include fusion of cervical vertebrae.

On October 1, 2003, Dr. Michael Patzakis examined Sherwood as an Agreed Medical Examiner. Dr. Patzakis opined, at the time of the examination, that Sherwood was able to return to work in a light duty capacity.

In October 2004, Sherwood was contacted by Lieutenant Blankenship and was told to report to work. Sherwood did so and worked until he was relieved from duty based upon the administrative allegation of benefits abuse.

B. Board of Rights Hearing

1. Dr. Jerold Sherman

Dr. Sherman examined Sherwood on July 29, 2002 for Sherwoods pending workers compensation case. When Dr. Sherman was called to testify at the Board of Rights hearing on October 24, 2005, he indicated that he had a compensation dispute with the City, and unless he was paid $900 that he believed the City owed him, he could not testify truthfully. The Board of Rights considered his paraphrased statement previously made to the Department of Internal Affairs. In it, Dr. Sherman concluded that Sherwoods injuries had resolved, he was capable of returning to work without limitation, would not need future medical care related to his injuries and was not disabled.

2. Dr. Michael Patzakis

Dr. Patzakis examined Sherwood on October 1, 2003, in connection with Sherwoods workers compensation case. Dr. Patzakis concluded Sherwoods condition was permanent and stationary, and Sherwoods subjective complaints regarding his right knee and neck were minimal to slight. He placed work restrictions on Sherwood and concluded that further surgery was not necessary.

Dr. Patzakis reviewed the subrosa videos and concluded from the videos that Sherwoods complaints were not as severe as described, with no evidence of limitation or pain. He also opined that Sherwood could have returned to work in some capacity when the video was taken.

3. Rocky Sherwood

Sherwood testified that he tried to work until Dr. Ainbinder ordered his first knee surgery. Prior to and in between his surgeries, he had medical procedures performed, including cortisone and epidural injections. He agreed that his injuries did not prevent him from doing some of the activities he could have conducted as a detective. He testified that Dr. Ainbinder knew of his physical activities, including being a little league coach. He indicated that he was never advised to return to work by any physician or anyone with the City. He did not feel that light duty positions were an option for him.

Sherwood testified that he suffered financial hardship as a result of being unable to work. He did not return to work because of his physicians orders.

Sherwood was contacted by Sergeant Linder in December 2002 and was told that because there was an ongoing criminal investigation, he should seek legal representation and remain at home until advised otherwise. Lieutenant Blankenship then contacted Sherwood, and Sherwood went back to work full duty in October of 2004.

4. Dr. Dennis Ainbinder

Dr. Ainbinders written declaration was admitted into evidence. He treated Sherwood from December 1999 for injuries to his right knee and neck. He performed three surgeries on Sherwoods right knee and was awaiting approval for surgery to his neck. During the time he treated Sherwood, he directed him to remain off work because it was a medical necessity. He reviewed the subrosa videos of Sherwood and opined that the activities on the videos did not contradict the reported medical condition of Sherwood or the restrictions placed on him. He was aware of the physical activities and approved of them.

Dr. Ainbinder indicated that he was never contacted by the City about the possibility of Sherwood returning to work in a modified work capacity. Dr. Ainbinder referred Sherwood to Dr. Lavi for an additional opinion as to the necessity for cervical surgery. Dr. Lavi concluded that Sherwood would need cervical surgery and Dr. Ainbinder was in agreement. He was aware of the opinion of Dr. Sherman, disagreed with it and continued to advise Sherwood to remain off work.

5. Melissa Bone

Melissa Bone (Bone) was a claims adjuster for the workers compensation claims administrator for the City. Bone stated that since 2002, the City had a policy of sending correspondence to injured workers and their treating physicians. The correspondence notified the workers and their doctors that a worker had a duty to return to work if he believed he could do so. This correspondence was not sent to Sherwood or to any of his treating physicians.

6. Louis Winsberg

Louis Winsberg (Winsberg) was an attorney and friend of Sherwood, who practiced in the area of workers compensation. His testimony was entered by stipulation. He indicated that on several occasions in February 2002, Sherwood told him that he wanted to return to work because of the emotional and financial strain on his family, but he could not do so because of medical advice from his doctors. Winsberg told Sherwood that he may be followed and videotaped as part of his workers compensation claim. Sherwood said he was not concerned because he was following his doctors orders.

DISCUSSION

A. Review of Administrative Decisions

The City contends that the trial court abused its discretion in issuing a writ of mandate to compel reinstatement of Sherwood by requiring the City to prove facts which were not necessary to sustain the administrative charge, and the trial court abused its discretion by failing to defer to the Board of Rights determinations of credibility. We disagree and affirm.

An administrative decision is entitled to the presumption of correctness pursuant to Evidence Code section 664, which imposes the presumption on the trial court that official duties have been regularly performed, with the burden of proof on the complaining party. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817.) Sherwood was entitled to have the trial court exercise its independent judgment in reviewing the Board of Rights findings. (Anserv Ins. Services, Inc. v. Kelso (2000) 83 Cal.App.4th 197, 204; Barber v. Long Beach Civil Service Com. (1996) 45 Cal.App.4th 652, 658.) This required the trial court to reweigh the evidence by examining the credibility of the witnesses and the evidence. (Barber, supra, at p. 658.)

In our review of the trial courts decision, the substantial evidence standard is utilized. (Jackson v. City of Los Angeles (2003) 111 Cal.App.4th 899, 902.) The trial court found [t]here [was absolutely] no evidence . . . to show that [Sherwood] did anything that he had any reason to believe would constitute misconduct or cause . . . disciplinary proceedings against him.

B. Citys Expectations for its Police Officers

City contends that Sherwood did not conform to the highest standards of personal and professional conduct as required of a police officer for the City. The Los Angeles Police Department Manual states that [a] police officer is the most conspicuous representative of government, and to the majority of the people, the officer is a symbol of stability and authority upon whom they can rely. An officers conduct is closely scrutinized, and when the officers actions are found to be excessive, unwarranted, or unjustified, they are criticized far more severely than comparable conduct of persons in other walks of life. Since the conduct of officers, on or off duty, may reflect directly upon the Department, officers must at all times conduct themselves in a manner which does not bring discredit to themselves, the Department, or the City. (1999 LAPD Manual, vol. 1,  210.35.)

Police officers thus are required to conduct themselves in a manner that is honest and above reproach. (Talmo v. Civil Service Com. (1991) 231 Cal.App.3d 210, 231; Anderson v. State Personnel Bd. (1987) 194 Cal.App.3d 761, 770.) If their off duty conduct impairs or disrupts public service, it warrants termination of employment. (Ramirez v. State Personnel Bd. (1988) 204 Cal.App.3d 288, 292-293.)

While we agree that officers must act according to the highest standards of conduct, we do not see how Sherwood could have done anything differently, other than perhaps to disregard and ignore the directions of his primary treating physician. Sherwood had surgery on his knee three times over a two-year period. He regularly saw and was treated by Dr. Ainbinder. There was no evidence that Sherwood had any idea, at the time he was off duty TTD, that he could have returned to work in any capacity.

The Citys reliance on Shafer v. Los Angeles County Sheriffs Dept. (2003) 106 Cal.App.4th 1388 is misplaced. In Shafer, the accused deputy was terminated for making false statements regarding his ability to return to work. (Id. at pp. 1394-1395.) The deputy was clearly milking the system. There is no evidence that Sherwood made any false statements regarding his ability to return to work.

C. Allegation Against Sherwood

City contends that it only had to prove that Sherwood was IOD/TTD[2]duty status during the time frame and engaged in conduct which was inconsistent with his duty status.

City asserts that Sherwood committed acts which were inconsistent with his IOD/TTD status and relies on the subrosa videotape. While Sherwood was coaching his sons little league team, he was still under Dr. Ainbinders care. In fact, Dr. Ainbinder was aware of Sherwoods activities as a coach and approved of them but still felt that Sherwood was not able to return to work. The acts complained of were not inconsistent with his IOD/TTD status. Substantial evidence thus supports the trial courts determination. (Jackson v. City of Los Angeles, supra, 111 Cal.App.4th at p. 902.)

D. Credibility Determination

The trial court does not have to accept blindly the findings of the Board of Rights. The trial court is required to exercise its independent judgment to reweigh the evidence by examining the credibility of the witnesses and the evidence. (Barber v. Long Beach Civil Service Com., supra, 45 Cal.App.4th at p. 658.) The trial court determined that an independent examination of the administrative record disclosed that the evidence produced at the administrative hearing did not support the decision.

The evidence showed that Sherwood followed the advice of his treating physicians. Sherwood did not explore the possibility of returning to work because his treating physicians consistently advised him that it was medically necessary for him to stay off work. There is no evidence that Sherwood had a duty to disregard medical advice and directions of his physicians and return to work.

The fact that Dr. Sherman and Dr. Patzakis believed that Sherwood could have returned to work in some light duty capacity during the period of the allegation did not obviate the fact that Sherwood believed it was medically necessary for him to be off work TTD. He was following the advice of his primary treating physician, Dr. Ainbinder. In addition, Dr. Sherman and Dr. Patzakis did not examine Sherwood or have any contact with him until after the alleged misconduct occurred.

Sherwood underwent three knee surgeries and had been advised that he needed a fourth surgery, on his neck. He had suffered financially by being off work for so long. He never received correspondence from Bone, the claims adjuster, that he had a duty to return to work if he could do so. He was precluded from returning to work during the criminal inquiry. Even though he had not obtained the surgery on his neck, he finally returned to work when contacted by Lieutenant Blankenship in October of 2004.

That Sherwood testified at the Board of Rights hearing that, in retrospect, he could have returned to work in some capacity, is not relevant. At the relevant time and during the period Sherwood was off duty TTD, there is no evidence that he knew or should have known that he should have returned to work. He was relying on medical advice. That advice consistently was that he could not return to work because of his medical condition. Again, substantial evidence supports the trial courts determination. (Jackson v. City of Los Angeles, supra, 111 Cal.App.4th at p. 902.)

DISPOSITION

The judgment and writ of mandate are affirmed.

NOT TO BE PUBLISHED

JACKSON, J.*

We concur:

MALLANO, Acting P. J.

ROTHSCHILD, J.

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Analysis and review provided by Poway Property line attorney.

[1] The City categorizes traffic collisions involving police officers into two categories, either preventable or non preventable. Non preventable collisions are those determined not to be caused by the officer and not reasonably preventable by the officer.

[2] IOD means injured on duty.

* Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.