Judge: Erick L. Larsh, Case: 2022-01280823, Date: 2023-07-27 Tentative Ruling

Petitioner Eder Palma petition/motion for writ of mandate is GRANTED. (See Code Civ. Proc., § 1094.5.)

The independent judgment standard applies where, as here, the administrative decision concerns a fundamental vested right (a public employee’s right to a disability pension). (See County of Alameda v. Board of Retirement (1988) 46 Cal.3d 902, 904, 909-910; Beckley v. Board of Administration etc. (2013) 222 Cal.App.4th 691, 697 (Beckley).)

The court has reviewed the administrative record (AR) in the exercise of the court’s independent judgment, giving due respect to respondent OCERS’ administrative findings. (See Espinoza v. Shiomoto (2017) 10 Cal.App.5th 85, 99-100 [independent judgment standard]; Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817, 818 (Fukuda) [same]; Alberda v. Board of Retirement of Fresno County Employees’ Retirement Assn. (2013) 214 Cal.App.4th 426, 433 (Alberda).)

Having done so, the court finds the administrative findings are not supported by the weight of the evidence.

Government Code section 31720 provides: “Any member permanently incapacitated for the performance of duty shall be retired for disability regardless of age if, and only if: [¶] (a) The member’s incapacity is a result of injury or disease arising out of and in the course of the member’s employment, and such employment contributes substantially to such incapacity.” (Gov. Code, § 31720, subd. (a).) The employee has the burden of proving his or her incapacity is both permanent and service connected. (Flethez v. San Bernardino County Employees Retirement Assn. (2017) 2 Cal.5th 630, 636 (Flethez); see Gov. Code, §§ 31720, subd. (a), 31724.)

Permanent “incapacity” means the substantial inability of the employee to perform his or her usual duties. (Mansperger v. Public Employees’ Retirement System (1970) 6 Cal.App.3d 873, 876 (Mansperger) [interpreting “incapacity” under PERS, Gov. Code, § 21022 (now §21151)].)

An employee’s incapacity is service-connected if there is a “ ‘real and measurable’ connection” between the employee’s job and his or her incapacitating condition. (Bowen v. Board of Retirement (1986) 42 Cal.3d 572, 578 (Bowen).) To be clear, it is not necessary for a county employee to show that his or her employment was the sole, or even the primary, cause of the disability. Instead, the employee need only establish that his or her incapacity arose out of and in the course of employment, and the employment “contribute[d] substantially to such incapacity.” (Gov. Code, § 31720, subd. (a).)

As an initial matter, the parties do not dispute that petitioner’s right shoulder injury and resulting alleged incapacity are service connected; petitioner sustained the subject shoulder injury while attempting to apprehend suspects in the line of duty. Every physician that has examined petitioner has come to this conclusion, and the AR leaves no room for any other finding. (See, e.g., AR 34-35, 50-56, 375-377, 293-307, 334-341, AR 314-330.)

Rather, the dispute here concerns petitioner’s permanent incapacity. Permanent incapacity means “the substantial inability of the applicant to perform his usual duties.” (See Mansperger, supra, 6 Cal.App.3d at p. 876.)

Thus, the first task is to determine petitioner’s “usual duties.” An employee’s “usual duties” are established by their “usual

duties” of their job classification, as opposed to their last assignment. (Beckley, supra, 222 Cal.App.4th at pp. 700-702.)

Here, petitioner was employed by the Orange County Sheriff’s Department (OCSD) as a Deputy Sheriff II at all relevant times. According to petitioner’s employer, a Deputy Sheriff II is “[r]equired to perform all physical requirements” of the position on “a daily basis while at work,” which, among other things, include, “the ability to lift up to 50 lbs., and to drag a 165 pound mannequin for 45 feet; [and] climb a ladder, scaffolds, 6 foot wall, etc.” (AR 34, 41-42.) The minimum requirements of the position also include “be[ing] free from any physical ... condition which might adversely affect exercise of peace officer powers, as determined by a licensed examining authority in accordance with California Government Code Section 1031,” and “pass[ing] a physical examination for peace officers whose typical duties demand top physical fitness and agility.” (AR 34, 39-40.) Some examples of the “usual duties” of a Deputy Sheriff II include “patrolling and responding to calls; apprehending principals and rendering assistance; ... booking prisoners; [and] transporting prisoners.” (AR 695; see AR 34, 38-40.)

Importantly, the mere fact that a Deputy Sheriff II may not actually have to perform these physical requirements every day, does not negate the fact that the ability to so “on a daily basis while at work” is a minimum requirement of the position. (AR 34, 41-42.) It may be that a Deputy Sheriff II need not, on a daily basis, arrest or pursue a suspect, rescue a person in danger (e.g., pull a person out of a vehicle or perform CPR, as petitioner has had to do on at least two occasions during his career), or overcome physical resistance when booking/transporting arrestees/prisoners—but this does not change the fact that he is there for that very purpose, to do so as the need arises. That is his job. “ ‘If every officer must be capable of and prepared for the worst everyday, then that is a “usual” duty of the job.’ [Citation.]” (Beckley, supra, 222 Cal.App.4th at p. 700.)

Here, the hearing officer (HO) found that petitioner was not permanently incapacitated or substantially unable to perform the usual duties of his position based on (1) an outdated 2018 opinion of petitioner’s treating physician, Navid Ghalambor, M.D., that petitioner “does not require restrictions” (AR 708); and (2) the opinion of OCERS’ independent medical examiner, Todd Fellars, M.D., who performed a virtual/remote disability independent medical evaluation (IME) of petitioner on 5/6/20. (Ibid.)

In relying on Dr. Ghalambor’s 2018 (outdated) opinion and release of all work restrictions, the HO also noted: “Applicant [i.e., the petitioner] claims ... that he continued to treat with Dr. Ghalambor in 2020.... Dr. Ghalambor could have given the Applicant work restrictions. But no such report has been submitted. We can conclude that Dr. Gahlambor is still of the opinion that the Applicant does not require restrictions.” (AR 708.)

This finding is contrary to the evidence. The administrative record before the HO included Dr. Ghalambor’s physician statement of disability dated 2/10/20 (AR 124-128), received by OCERS on 3/2/20 (see AR 128 [“reviewed” by “dacuna” time stamp]; see also AR 142 [letter from David Acuna, OCERS disability investigator]), and submitted as a part of the administrative record. (See AR 364 [11/5/21 hearing transcript, noting receipt of OCERS’ AR prepared for the HO numbered 0001-0308], 671 [HO’s summary of evidence, findings of fact, recommendations, inaccurately summarizing the 2/10/20 physician statement]; see also AR 124-128 [2/10/20 physician

statement of disability, reflecting OCERS’ prior bates stamped pages 0099-0103 (in black ink)].)

Dr. Ghalambor’s 2/10/20 physician statement of disability plainly revised his prior opinion regarding petitioner’s shoulder injury and need for restrictions, by specifically imposing a permanent work restriction preventing petitioner from lifting more than 100 lbs. with his right arm, and explicitly finding that petitioner was “permanently disabled for the duties of his[] occupation” due to this permanent work restriction. (AR 124-128.)

This is consistent with the opinion of Ralph N. Steiger, M.D., who conducted an orthopedic joint panel qualified medical evaluation (QME) of petitioner on 12/8/18, in connection with petitioner’s workers compensation claim arising from the same shoulder injury. The record shows that Dr. Steiger, after performing a physical examination and reviewing petitioner’s medical history/records, ultimately issued permanent work restrictions on 2/21/19, restricting petitioner from engaging in “heavy pushing or pulling [of] more than 50 pounds and ... repetitive work at or above shoulder level.” (AR 296-307, 334, 336.)

Thus, Dr. Ghalmabor’s physician statement from 2/10/20, together with Dr. Steiger’s QME reports dated 1/4/19 and 2/21/19, show petitioner required permanent work restrictions as a result of his shoulder injury, which, at a very minimum, prevented petitioner from lifting/pulling more than 100 lbs. with his right arm. (AR 124-128, 296-307, 334-341.)

The HO disregarded these opinions and relied on disability examiner Todd Fellars, M.D.’s contrary findings instead. However, Dr. Fellars’ key opinions were conclusory and/or speculative, and thus lacked the evidentiary value to overcome the expert opinions of the other two physicians. (See AR 318, 320-321; Evid. Code, §§ 405, 801, 803; see also Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510 [an expert opinion rendered without a reasoned explanation of why the underlying facts lead to the ultimate conclusion has no evidentiary value because an expert opinion is worth no more than the reasons and facts on which it is based]; Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516, 1523-1525 [expert opinion may not be based upon speculation or conjecture].)

Specifically, Dr. Fellars’ opinion begins with the statement that “given [his] interaction with the claimant, the medical documentation and virtual examination, the claimant would not be considered incapacitated.” (AR 318.) However, he provides no medical explanation/reasoning for this conclusion, even after noting the existence of the two prior contrary findings by Drs. Ghalambor and Steiger discussed above. (See AR 318; see also AR 320, 328-330 [reflecting receipt and review of the two contrary findings by Drs. Galambor and Steiger].) Similarly, Dr. Fellars fails to provide any explanation/reasoning for his opinion that Dr. Steiger’s conclusion was “erroneous.” (See AR 318.) When there are no reasons or factual basis provided for a physician’s conclusions, the conclusory statements are valueless. (See Evid. Code, §§ 405, 801, 803; see also Bushling v. Fremont Medical Center, supra, 117 Cal.App.4th at p. 510.)

Next, Dr. Fellars concludes that Dr. Steiger’s issued “overbearing work restrictions when no work restrictions were required (as the applicant was working full duty at the time).” (AR 318.) Again, no medical basis, explanation, or reasoning for this conclusion is provided. Instead, Dr. Fellars appears to have based this opinion on the speculation that merely because petitioner was working without restrictions for several months prior to his last day of work on 4/17/19, that petitioner’s shoulder injury/symptoms did not in fact require any

restrictions, and that petitioner could perform the “usual duties” of his position. It is worth noting that he repeats this same speculative reasoning multiple times within his report. (See AR 318, 320-321.)

The problem with this conclusion is that nothing shows petitioner was required to perform all required minimum physical requirements of his position during the time period he worked full duty (i.e., without restrictions) from 7/8/18 to 4/17/19. Nothing shows, for example, that he had to drag a 165 lb. mannequin/person for 45 feet, scale any 6-foot walls, or physically overcome a person resisting arrest, or that he was able to do any of the foregoing without significant physical issues. Thus, the mere fact that he was working full duty during this time period does not somehow establish his medical condition did not require restrictions, or that he could in fact perform the minimal physical requirements of his job. Indeed,

at the time of Dr. Fellars’ examination, two other doctors had already examined petitioner and required permanent restrictions that effectively demonstrated he could not, even though they knew petitioner had already been working full duty for some time. (See, e.g., AR 124-128, 291, 297, 298, 306, 335, 336.) Dr. Fellars’ conclusory opinion finding otherwise, based on no other stated reason than the mere fact that petitioner had already been working full duty, is merely conclusory and speculative, and thus lacks the evidentiary value to overcome the expert opinions of the other two physicians. (See Evid. Code, § 801, subd. (b); see also Korsak v. Atlas Hotels, Inc., supra, 2 Cal.App.4th at pp. 1523-1525.)

Thus, the weight of the evidence does not support the HO’s finding that petitioner was not permanently incapacitated for the performance of his duties as a Deputy Sheriff II. Rather, the weight of the evidence shows that he was. Both Drs. Ghalambor and Steiger imposed permanent work restrictions limiting the right-hand dominant petitioner’s ability to lift/pull 50-100 lbs. with his right arm. These permanent work restrictions left petitioner with the substantial inability to perform the basic, minimum physical requirements of his position, such as, e.g., dragging a 165 lb. mannequin for 45 feet or climbing 6-foot walls. (See AR 34-42, 124-134, 342; see also AR 247, 297, 258, 317 [right-hand dominant]; Beckley, supra, 222 Cal.App.4th at p. 702 [trial court may rely on the fact that employer directed the petitioner to leave to the workplace due to her inability to perform certain requisite tasks, to find petitioner was unable to carry out the usual duties of her position].)

In sum, the HO’s findings are not supported by the weight of the evidence. Rather, the weight of the evidence shows that petitioner is permanently incapacitated for the performance of his duties as a Deputy Sheriff II due to a service-connected injury to his right shoulder. Government Code section 31720 provides that “[a]ny member permanently incapacitated for the performance of duty shall be retired for disability regardless of age if, and only if... [¶] [t]he member’s incapacity is a result of injury ... arising out of and in the course of the member’s employment, and such employment contributes substantially to such incapacity.” (Gov. Code, § 31720, subd. (a).)

Accordingly, the petition is granted, and a writ of mandate shall issue directing the respondent to set aside its denial of petitioner’s application for service-related disability retirement and to grant it instead, and to conduct further proceedings consistent with this ruling (e.g., to calculate petitioner’s benefits, amounts due).

Petitioner shall give notice.