Judge James C. Chalfant, Case 22STCP00342 2022-08-11 Tentative Ruling

Petitioner Dora Barrios (“Barrios”) petitions for a writ of administrative mandate compelling Respondent Board of Retirement (“Board”) of the Los Angeles County Employees Retirement Association (“LACERA”) to set aside its decision denying her a service-connection to her disability retirement allowance.

The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

Petitioner Barrios commenced this proceeding on January 25, 2022, alleging a cause of action for administrative mandamus. The verified Petition alleges in pertinent part as follows.

Barrios was at all relevant times a member of LACERA and an employee of the County of Los Angeles (“County”). On May 11, 2016, the County applied for a service-connected disability retirement allowance. On November 16, 2017, the Board notified Barrios that it denied the application for a service-connected disability retirement while granting a nonservice-connected disability retirement.

Upon Barrios’ appeal, the Board held a hearing on October 26, 2020 to determine if (1) Barrios is entitled to a service-connected disability retirement allowance and (2) her service-connected disability retirement is effective earlier than the date of the County’s application.

On August 6, 2021, the hearing officer submitted her proposed decision recommending denial of the application and concluding that Barrios’ permanent incapacity to perform her usual duties is a result of a 30-year old injury. The Board adopted the decision on November 3, 2021 and notified Barrios of its decision on November 10, 2021.

Barrios seeks a writ of mandate directing the Board to set aside its decision and grant the service-connection for her disability retirement allowance retroactive to Barrios’ last day of service, as well as attorney’s fees and costs.

No proof of service is on file. On February 15, 2022, the Board filed its Answer.

CCP section 1094.5 is the administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies. Topanga Ass’n for a Scenic Community v. County of Los Angeles, (“Topanga”) (1974) 11 Cal.3d 506, 514-15.

CCP section 1094.5 does not in its face specify which cases are subject to independent review, leaving that issue to the courts. Fukuda v. City of Angels, (“Fukuda”) (1999)20 Cal.4th 805, 811. In cases reviewing decisions which affect a vested, fundamental right the trial court exercises independent judgment on the evidence. Bixby v. Pierno, (“Bixby”) (1971) 4 Cal.3d 130, 143. See CCP §1094.5(c). Public employees have fundamental vested rights in their pension fund, which accrues on acceptance of employment. Strumsky v. San Diego County Employees Retirement Association, (1974) 11 Cal.3d 28, 44. This rule includes whether the employee is entitled to a disability retirement.

Under the independent judgment test, “the trial court not only examines the administrative record for errors of law but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” Id. at 143. The court must draw its own reasonable inferences from the evidence and make its own credibility determinations. Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners, (2003) 107 Cal.App.4th 860, 868. In short, the court substitutes its judgment for the agency’s regarding the basic facts of what happened, when, why, and the credibility of witnesses. Guymon v. Board of Accountancy, (1976) 55 Cal.App.3d 1010, 1013-16.

However, “[i]n exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” Fukuda, supra, 20 Cal.4th at 817. Unless it can be demonstrated by petitioner that the agency’s actions are not grounded upon any reasonable basis in law or any substantial basis in fact, the courts should not interfere with the agency’s discretion or substitute their wisdom for that of the agency. Bixby, supra, 4 Cal.3d 130, 150-151; Bank of America v. State Water Resources Control Board, (1974) 42 Cal.App.3d 198, 208.

The agency’s decision must be based on a preponderance of the evidence presented at the hearing. Board of Medical Quality Assurance v. Superior Court, (1977) 73 Cal.App.3d 860, 862. The hearing officer is only required to issue findings that give enough explanation so that parties may determine whether, and upon what basis, to review the decision. Topanga, supra, 11 Cal.3d 506, 514-15. Implicit in section 1094.5 is a requirement that the agency set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order. Id. at 115.

An agency is presumed to have regularly performed its official duties (Ev. Code §664), and the petitioner therefore has the burden of proof. Steele v. Los Angeles County Civil Service Commission, (1958) 166 Cal.App.2d 129, 137. “[T]he burden of proof falls upon the party attacking the administrative decision to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion. Afford v. Pierno, (1972) 27 Cal.App.3d 682, 691.

The County Employees Retirement Law (“CERL”) (Govt. Code §31450 et seq.)[1] was enacted to recognize a public obligation to county employees who become incapacitated by age or long service in public employment and its accompanying physical disabilities, as well as provide a means by which employees who become incapacitated may be replaced by more capable employees without inflicting hardship on the employee removed. §31451.

Section 31720 provides for disability retirement of county employees as follows: “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, or (b) The member has completed five years of service…” See Pearl v. Workers’ Compensation Appeals Bd., (“Pearl”) (2001) 26 Cal.4th 189, 193.

For purposes of disability retirement, case law defines incapacity as “the substantial inability of the applicant to perform his usual duties.” Hosford v. Board of Administration of Public Employees Retirement System, (1978) 77 Cal.App.3d 85, 860 (quoting Mansperger v. Public Employees’ Retirement System, (1970) 6 Cal.App.3d 873, 876). Disability retirement benefits are free from federal income taxes. Pearl, supra, 26 Cal.4th at 193-94 (citing 26 U.S.C. §104(a)(1)).

Permanent incapacity boils down to two issues: (1) whether the applicant is physically or mentally incapacitated by reason of injury or sickness, and (2) if so, whether the incapacity prevents the applicant from performing the duties to which he might be assigned. See Winn v. Board of Pension Commissioners, (1983) 149 Cal.App.3d 532, 539. The employee need not be able to perform any and all duties performed by persons in their job category. Because of well-recognized public policy favoring the employment and utilization of physically handicapped persons, if a person is not disabled to a degree which prevents him from serving in any position in a department or agency, he should not be retired with payment of a disability pension. Id. at 540; Craver v. City of Los Angeles, (1974) 42 Cal.App.3d 76, 80; Petrillo v. BART Dist., (1988) 197 Cal.App.3d 798, 811 (citing Craver v. City of Los Angeles, (1974) 42 Cal.App.3d 76, 79-80). Where there are permanent light duty assignments in a department, a person who is incapacitated should not be retired if he can perform duties in a given permanent assignment within his department. Barber v. Retirement Board, (1971) 18 Cal.App.3d 273, 278.

A person entitled to disability retirement also may be eligible for a service-connected disability retirement. For an injury to be considered service-connected, section 31720 requires that the injury arise out of and in the course of employment: “Any member permanently incapacitated for the performance of duty shall be retired for disability regardless of age if, and only if: (a) His incapacity is a result of injury or disease arising out of and in the course of his employment and such employment contributes substantially to such incapacity, (b) The member has completed five years of service, and (c) The member has not waived retirement in respect to the particular incapacity.” The elements “arise out of” and “in the course of” employment are separate elements, and both must be satisfied for a job to be considered the legal cause of the injury.

The service-connection must be real and measurable for a service-connected disability retirement. Hoffman v. Board of Retirement, (“Hoffman”) (1986) 42 Cal.3d 590, 593; Bowen v. Board of Retirement, (“Bowen”) (1986) 42 Cal.3d 572, 578. “[A]n ‘infinitesimal’ or ‘inconsequential’ connection between employment and disability would be insufficient for a service-connected disability retirement. Instead, while the causal connection between the [job] stress and the disability may be a small part of the causal factors, it must nevertheless be real and measurable. There must be substantial evidence of some connection between disability and the job.” Hoffman, supra, 42 Cal.3d at 577. The substantial contribution test does not mean more than 50% industrial causation, but there still must be a material and traceable cause of a disability. Pacheco v. Board of Retirement, (1986) 188 Cal.App.3d 631, 635.

A service connection may exist where the industrial cause aggravates or “lights up” a pre-existing condition. Gelman v. Board of Retirement, (“Gelman”) (1978) 85 Cal.App.3d 92; Gurule v. Board of Pension Commissioners, (1981) 126 Cal.App.3d 523; Lundak v. Board of Retirement, (1983) 142 Cal.App.3d 1040. However, evidence tending to prove only a possibility of industrial causation is conjectural and industrial causation cannot be sustained. Peter Kiewit Sons v. Industrial Acc. Commission, (“Kiewit”) (1965) 234 Cal.App.2d 831, 838.

Where an issue is exclusively a matter of scientific medical knowledge, expert evidence is essential to sustain an agency’s finding. Kiewit, supra, 234 Cal.App.2d at 838. In determining whether a member is eligible to retire for disability, the county employee retirement association cannot consider medical opinion unless it is deemed competent. §31720.3. Unexplained medical labels are insufficient; description and explanation of the origin, development, and manifestations of the alleged disease are the chief functions of medical experts. People v. Bassett, (1968) 69 Cal.2d 122, 141. The chief value of a medical expert’s testimony rests upon the material from which the opinion is fashioned and the reasoning by which the expert progresses from the material to the expert’s conclusion. Id. An expert’s opinion which rests upon guess, surmise, or conjecture, rather than relevant, probative facts, cannot constitute substantial evidence. Garza v. Workmen's Comp. App. Bd., (1970) 3 Cal.3d 312, 318 fn.3. Courts have held that workers’ compensation boards may not rely on medical reports which are known to be erroneous, upon reports which are no longer germane, or upon reports based upon inadequate medical history or examinations. Place v. Workmen's Comp. App. Bd., (1970) 3 Cal.3d 372, 378.

Pension statutes must be liberally construed and applied to the end that the policy established thereby is accorded proper recognition. Dillard v. City of Los Angeles, (1942) 20 Cal.2d 559, 602. Disability and workers compensation are related in subject matter and harmonious in purpose. Therefore, courts look to workers’ compensation precedent for guidance when dealing with issues similar to disability pension law. Bowen, supra, 42 Cal.3d at 578, n. 4.

In 1988, Barrios was driving as a shuttle for American Medical Enterprises when a car rear-ended her vehicle. AR 252. She was taken to the emergency room and an MRI revealed the crash fractured her hip. AR 252. Her injuries required hip surgery on July 17, 1989 and a lumbar laminectomy – a surgery to remove the posterior arch of a vertebra to relieve compression of a spinal nerve root – on August 28, 1990. AR 139, 252. She required extensive physical therapy for her lower back and right hip and was off work for five years. AR 139, 252.

Barrios returned to her duties at American Medical Enterprises with some restrictions. AR 252. She thereafter had flare-ups that required additional treatment, but they resolved. AR 252.

On October 12, 1999, Barrios began her employment as Custody Records Clerk II for the Los Angeles Sheriff’s Department (“Department”) and her medical placement classification was “medically capable of performing this Job with NO restrictions.” AR 195.

The job analysis for the Custody Records Clerk II position explains that the job consists of five eight-hour days per week beginning at 2:30 p.m. AR 595. Physical requirements include: (1) sitting for up to 30 consecutive minutes through the workday; (2) alternating between standing and walking to a total of 1-2 hours during the average workday; (3) bending the head slightly downward at the neck for a few seconds to a few minutes to view papers on the desk; (4) bending at the waist several times a day to access items kept at lower levels; (5) twisting and turning at the neck; and (6) intermittently lifting and carrying items weighing up to five pounds. AR 596-97.

In 2002, while working the message center and doing a lot of typing, Barrios began experiencing pain in her right elbow, shoulder, and thumb. AR 808. The doctor confirmed that the injury was work-related and notified her supervisor of that fact for workers’ compensation. AR 809. She eventually returned to work without incident. AR 809.

On October 7, 2004, Barrios had surgery to remove a ganglion cyst in her right wrist – a noncancerous lump along the tendons. AR 385-86. On February 24, 2005, she had surgery on her right elbow. AR 387-89. Following the elbow surgery and therapy, she resumed her duties with restrictions on February 1, 2006, and resumed full duties in March 2007. AR 580.

On March 4, 2009, while walking to a receiving area to accept a bomb surrender, Barrios slipped and fell in puddle of water, injuring the left side of her body. AR 326. The fall caused immediate pain and numbness in her ankle, left wrist, left hip, and lower back. AR 253, 361.

Barrios was seen by Dr. Pachachi and referred to an orthopedist, Dr. Richard Feldman (“Feldman”). AR 361.

On March 26, 2009, Feldman conducted multiple x-rays of her left side and lumbar spine (vertebrae just above the pelvis) and reviewed her medical records. AR 325, 332. He did not see any acute or chronic changes in the X-rays for the left wrist, ankle, or hip, but he discovered minimal disc degeneration (deterioration) without scoliosis or other deformity for the lumbar spine. AR 332. The damage seemed to be solely soft tissue injury, and Feldman did not anticipate any sequela from it. AR 333. He also reviewed Barrios’ history, medical records, and physical examination results from the visit and concluded that she sustained an injury that arose out of industrial exposure on March 4, 2009. AR 333.

On May 28, 2009, Barrios returned to Feldman for a follow-up and complained of back and left leg radicular pain (pain stemming from the neural root). AR 437. He authorized an MRI to rule out lumbar disc herniation (protrusion of the spinal disc between vertebrae into the exterior casing). AR 447-48.

On June 8, 2009, Feldman reported the MRI, stating that Barrios is “status post right-sided hemilaminotomy and microdiskectomy”. AR 448. There was mild degeneration in the L4-L5 disk of the spine, as well as broad-based disc bulges from the L2 to L5 vertebrae. AR 447-48.

In a June 11, 2009 follow-up visit, Feldman noted that the degeneration was in the same area as Barrios’ previous surgeries for the L4-L5 vertebrae. AR 450. There was minimal spinal stenosis (narrowing of the vertebral canal due to the bone encroaching on it) and no evidence of any acute herniation. AR 450. While there was occasional radicular pain – pain pertaining to the nerve root – in the lower back, the MRI did not reveal any acute pathology. AR 453. Feldman’s diagnosis was (1) low back pain with occasional radicular pain and (2) history of previous operative intervention of the lumbar spine. AR 453. He concluded that Barrios could return to work on July 15, 2009. AR 453.

On September 3, 2009, following Barrios’ continued complaints of back and right leg radicular pain, Feldman reevaluated her after physical examination. AR 336. Feldman reiterated that the MRI did not show any acute pathology and that she was reasonably permanent and stationary following her treatment program. AR 339. Feldman concluded that Barrios suffered Lumbar Category II damage and some right leg radicular symptoms – pertaining to the nerve root – that rendered her 7% medically impaired when compared to a whole person. AR 340. He apportioned 80% of the damages to the natural progression of her underlying degenerative changes and previous surgery and noted that this most recent mild injury aggravated her condition and apportioned 20% to the new injury. AR 340.

On June 24, 2010, Feldman submitted a progress report indicating that Barrios continued to suffer from back and right leg radicular pain, and her progress had plateaued. AR 166. Feldman diagnosed her with L5 radiculopathy – nerve root damage –and recommended a selective nerve root block. AR 166.

On July 15, 2010, Feldman submitted another progress report noting that Barrios had continued complaints for her back. She had elected against nerve blocks. AR 166.

Dr. Joon Koh (“Koh”) a QME orthopedic surgeon, evaluated Barrios on August 9, 2011, reviewing medical records from 2009 and 2010 and an MRI conducted on June 8, 2009. AR 343, 348-50, 355. The June 8, 2009 MRI showed mild neural foraminal narrowing (reduction of the space between spinal bones) between the L3-L4 vertebrae and signs of hemilaminectomy (removal of a portion of a vertebral lamina on one side) and microdiscectomy (surgical removal of an intervertebral disk) in the L4-L5 region. AR 355.

Koh diagnosed Barrios with (1) “status post-lumbar laminectomy” and twice hip surgery – her 1988 surgery; (2) lumbar strain without any radiculopathy, or nerve root damage; (3) a fully recovered ankle following a sprain; and (4) status post-ganglionectomy – surgical removal of a nerve ganglion – in the right wrist in 2007. AR 355. While Koh acknowledged that the March 2009 fall injured her back, she had symptoms prior to that date. AR 356. No apportionment was needed, as Koh did not attribute any of Barrios’ injury to the 2009 accident. AR 356. Koh found her 8% medically impaired but that she could continue working without restriction. AR 357.

On March 21, 2012, Dr. Robert Horner (“Horner”), a QME orthopedic surgeon, evaluated Barrios through direct observation and a review of medical records from 2009 through August 2011. AR 363-66. He noted that Barrios continued to experience dull pain in her lower back, right hip, and left ankle, as well as numbness and tingling in her right calf and foot. AR 361. He diagnosed her with (1) lumbosacral strain with radicular complaints (stress on the lower spine and pelvis and nerve root injuries); and (2) strain of left ankle and left wrist with tenderness. AR 368. Horner concluded that the 2009 injury was responsible for 60% of her lumbar impairment at the time, with the 1988 incident responsible for the other 40%. AR 369-370. He also found that Barrios had permanent medical impairment of 7% but was able to work without restriction, provided she avoid repetitive going up and down stairs and squatting. AR 360, 369.

On July 11, 2014, Dr. Niraj Rawal (“Rawal”) conducted an MRI that revealed degenerative disc disease via eccentric disc bulge (a bulge in a specific direction) left of the midline of the L4-L5 vertebrae. AR 538.

On November 24, 2014, Barrios was walking to the breakroom when her foot caught between the rubber stripping and the new carpet, causing her to stumble forward three steps and twist awkwardly to maintain her balance.[2] AR 104, 228. Barrios sustained injury to her lower back, right thigh, right hip, and right knee, waking up the next morning in severe pain. AR 104, 228.

On November 25, 2014, Dr. Parviz Taherpour (“Taherpour”) x-rayed Barrios’ back, right hip, and knee. AR 104. He diagnosed a torn meniscus (the cartilage between the shin and the thigh) and back sprain. AR 105.

On November 27, 2014, Taherpour analyzed the x-rays and found no definite acute compression fractures. AR 323. In the lumbar spine, all disc spaces, transverse processes (attachment points for back muscles and ligaments), pedicles (cylindrical projections on either side of a vertebrae), and sacroiliac joints (joints at the back of the pelvis) appeared normal. AR 323. Taherpour recommended restricted duty. AR 323.

On March 6, 2015, Dr. Daniel Lee (“Lee”) performed an MRI of Barrios’ lumbar spine. AR 490. The MRI revealed multi-level degenerative changes, including broad-based disc bulges between the L3, L4, L5, and S1 vertebrae. AR 490. There was no significant spinal canal or neural foraminal compromise (narrowing of the space between spinal bones). AR 490.

On July 9, 2015, Dr. Behnam Tabibian (“Tabibian”) evaluated Barrios after performing a physical examination and reviewing her medical history, including the March 6, 2015 MRI. AR 312. Tabibian recommended work restrictions for Barrios. AR 318.

On November 18, 2015, Dr. Roger Sohn (“Sohn”) issued a report for Barrios after a physical examination and review of medical reports, beginning with Taherpour’s November 2014 report through Tabibian’s assessment in September 2015. AR 227, 239-44.

Sohn stated that Barrios was injured in November 2014 when she apparently “tripped and fell” in the breakroom. AR 244. She injured her back and right knee and woke up in severe pain. AR 244. She sought treatment and received cortisone injections. AR 244. Currently, she is working but doing rather poorly. AR 245. His diagnosis was “lumbar strain superimposed on old laminectomy” and “chondromalacia, right knee.” AR 245. (Condromalacia is the breakdown of cartilage under the knee.)

Sohn recommended work restrictions for Barrios. AR 245-46. She could not perform her normal job and surgery was not likely to help. AR 246. He rated Barrios as 26% impaired to the whole person from the lumbar spine, and 10% from the knee, a total of 35% impairment whole person. AR 245. He attributed 50% of Barrios’ back condition to the 1988 laminectomy and 50% to the accident at hand. AR 246. He attributed 20% of Barrios’ knee conditions to degenerative disc disease and 80% to the accident at hand. AR 246. Sohn’s report acknowledged the 2009 injury, but his apportionment and causation discussions did not reference it. AR 233, 246.

On June 6, 2016, Sohn performed another evaluation of Barrios based on physical examination and a review of medical records from November 2015 through April 2016. AR 213, 221-23. The reevaluation noted that Barrios’ injuries rendered her temporarily disabled beginning on December 3, 2015, and she is back to permanent and stationary. AR 223. Her overall impairment had not changed and Sohn maintained his previous assessment. AR 223-24. He also noted that Barrios’ attempts to return to work seemed to aggravate her back pain. AR 224.

On October 9, 2017, Sohn performed another reevaluation based on a physical examination and a review of medical records from July 2015 to September 2017. AR 203-07. He observed that Barrios was not back to work and continued to complain of back and hip pain -- the latter was a manifestation of her back pain -- and knee pain. AR 208. She had significant impairment to her lumbar spine and knee and remained permanent and stationary. AR 208. Barrios’ impairment rating remained as previously stated. AR 208.

Barrios was not improving and Tabibian removed her from work on December 2, 2015. AR 105, 813-14. After several meetings in April 2016, the County determined that it could not accommodate her disability. AR 113, 118.

On May 11, 2016 – before Sohn’s June 6, 2016 revaluation – the County applied for both a service-connected and a non-service-connected disability retirement for Barrios. AR 115. LACERA’s evaluation report cited injuries to Barrios’ back, right arm, right elbow, right wrist, right thigh, hip, and right knee. AR 102. On June 7, 2016 – after Sohn’s reevaluation the day before – Barrios agreed to participate in the disability retirement process and submit additional forms. AR 102.

In a July 14, 2016 physician statement supporting Barrios’ disability retirement application, Tabibian confirmed she was “permanently and substantially incapacitated” due to cervical contusion (muscle tissue injury without laceration); shoulder impingement (rubbing of the rotator cuff between the humerus and top outer edge of the shoulder, which causes swelling and further narrowing of the space); lumbar sprain; enthesopathy (a connective tissue disorder) in the hip; and internal derangement of the knee. AR 121. Tabibian stated that the incapacitation stemmed from a work-related injury on November 24, 2014. AR 121.

On March 21, 2017, Tabibian prepared a second physician’s statement for Barrios’ disability retirement application diagnosing her with an unspecified sprain in the right wrist, lateral epicondylitis (tennis elbow) in the right elbow, crepitant synovitis (inflammation of the inner lining of the joint capsule) in the right wrist and other instances of synovitis and tenosynovitis in the right hand. AR 126. He attributed these to a work-related injury from February 13, 2002. AR 126.

On August 28, 2017, Dr. Mark Ganjianpour (“Ganjianpour”), an orthopedic surgeon, examined Barrios at LACERA’s request for the disability retirement application process. AR 132, 134. He reviewed the medical records for Barrios beginning September 2002. AR 145-89. His review included: (1) Feldman’s reports from June 2010 showing low-back radiculopathy (irritation to the nerve root that causes pain and numbness to the corresponding part of the body); and (2) Rawal’s July 11, 2014 MRI report that found degenerative disc disease in the L4 and L5 vertebrae. AR 162, 166.

Ganjianpour had an x-ray taken of Barrios’ neck that showed disc space narrowing with degenerative changes between the C5, C6, and C7 vertebrae. AR 145. An x-ray of her spine showed evidence of the previous laminectomy at L4-L5 vertebrae and possibly LS-S1, as well as narrowing disc space between them. AR 145.

Ganjianpour noted that Barrios was receiving treatment from 1989 to at least July 11, 2014 for a lumbar spine post-hemilaminectomy (removal of part of a vertebral lamina, or the back part of the smaller bones) and discectomy (removal of one of the vertebral discs) with continuous complaint about lumbar spine pan as a result of a rear-end motor vehicle accident in 1989. AR 190. She continued to have issues with her lumbar spine, and a July 11, 2014 MRI (four months before the November 2014 incident) indicated a L3-L4 broad-based disc bulge and canal stenosis as we as L4-L5 degenerative disc disease with disc bulges and canal stenosis. AR 190. Throughout the medical records, Barrios continued to have lumbar spine pain. AR 190. She was getting treatment to her lumbar spine as late as July 11, 2014. AR 190.

He concluded that she has permanent incapacities to her lumbar spine, cervical spine, and right knee. AR 191. Barrios was unable to perform the light duty work functions of her job due to the incapacity from the lumbar spine condition only; the injuries to her cervical spine, right shoulder, right arm, and right wrist did not contribute to this finding. AR 192.

Ganjianpour concluded that it was “within reasonable medical probability” that because the lumbar injuries stemmed from the 1988 accident and became progressively worse, any work-related injuries did not contribute to Barrios’ incapacity. AR 192. The November 2014 mechanism of injury -- a trip and awkward twist of her body -- is not a significant mechanism of injury. AR 192. Any work-related injuries to Barrios’ neck, right shoulder, right elbow and right wrist also did not prevent her from performing her usual duties and she was able to work after treatment. AR 192-93. A scheduled treatment for the torn meniscus in her right knee, a work-related injury, would allow her to perform all light work and customary duties. AR 193.

On November 9, 2017, the Board granted Barrios a nonservice-connected disability retirement. AR 967.

Barrios requested an appeal. AR 971. On December 19, 2017, the Board acknowledged the request and granted a de novo hearing. AR 972.

In addition to the testimony noted ante, Barrios’ pertinent testimony from the October 26, 2020 appeal hearing is as follows.

Barrios was a Head Custody Records Clerk, which involved supervising custody records clerks, handling complaints from staff and outside agencies, and interviewing new hires. AR 845.

In 2007 or 2009, while walking to the receiving area for a bomb surrender, she slipped on a puddle of water and fell sideways, injuring her lower back, left wrist, and left ankle. AR 809-10, 829-31. She received physical therapy, the extent of which she could not remember. AR 810.

When Barrios tripped over the carpet in 2014, she fell forward but did not hit the floor. AR 832. There was an awkward twisting motion that caused her to hurt her lower back, right knee, and right ankle. AR 832.

On November 29, 2017, Dr. Ronny G. Ghazal (“Ghazal”) performed right knee arthroscopy and partial medial and lateral meniscectomy (surgical excision of the right knee’s meniscus). AR 604. The prognosis was guarded due to extensive chondral wear of the knee. AR 605.

On April 17, 2018, Dr. Jeffrey A. Berman (“Berman”) evaluated Barrios, who was walking with a cane. AR 254. He physically examined her lumbar spine, hips, and body range of motion and reviewed medical records from November 27, 2014 to March 2, 2019. AR 254-77. Barrios refused any x-rays because she had several imaging studies on file from the past year. AR 257.

Berman noted that Barrios was off work for five years following the 1988 accident. AR 252. She had multiple surgeries followed by physical therapy. AR 252. She then returned to work and performed regular duties. AR 252. She would have flare ups, receive treatment, and the flareups would resolve. AR 252. In particular, she would have complaints if sitting for prolonged periods of time. AR 252.

Based on the markedly reduced range of motion for the back, right hip, and right knee, Berman diagnosed Barrios with a musculoligamentous (musculoskeletal) sprain in the lumbar spine. AR 277.

Berman found Barrios’ case very difficult and complicated. AR 277. She had previous injury to the lumbar spine, underwent L4-5 surgery, and had reoccurrence. AR 277. The March 6, 2015 MRI revealed chronic issues with the lumbar spine. AR 277. The 2014 injury likely aggravated her pre-existing lumbar condition, and it became more symptomatic both for axial and radicular findings. AR 278-79.

As for her right knee, Barrios had an MRI showing chondral changes, there was meniscal pathology, and she underwent an arthroscopic procedure. AR 279. She presents with a cane which he is not convinced she needs, but her gait is altered by limping. AR 279-80.

She cannot return to her job. AR 281. He agreed with Sohn’s November 18, 2015 apportionment, attributing 50% of the incapacity to pre-existing conditions and 50% to the 2014 injury. AR 281. He further agreed that 20% of the right knee injury was pre-existing due to dgeenrative changes and 80% related to the November 2014 injury. AR 281-82.

While Berman’s evaluation mentioned the 2009 injuries, he did not link them to her incapacity to perform her usual duties. AR 253.

On August 30, 2019, Tabibian issued a progress report for Barrios based on his physical examination and a February 2019 MRI of her right hip. AR 301. He noted improvement of her right hip symptoms after cortisone injections. AR 301. Barrios told Tabibian she was not interested in any surgery. AR 301. Tabibian attributed her injuries to the lower back and right knee to industrial causation. AR 301.

On January 25, 2021, Ganjianpour reevaluated Barrios, reviewing medical files through August 24, 2020 as well as the transcript of Barrios’ Board testimony. AR 739, 750. He performed a physical examination and obtained x-rays. AR 743-50.

Ganjianpour concluded that Barrios remained symptomatic with respect to her right knee because her quads were still weak, but that should improve with strengthening exercises. AR 786. Now that she had knee surgery on November 29, 2017, she had reached maximum medical improvement. AR 786. Her back may require surgery, but she is not interested in surgery at this time. AR 787. Her spine prevents her from performing essential job functions, leaving her permanently incapacitated. AR 787. Without her lumbar issues, she would be capable of performing her job. AR 787.

When the Board asked if he found a real and measurable causal connection between Barrios’ incapacity and the 2014 incident, Ganjianpour denied there is one. AR 788. Barrios was able to control her balance during the incident. She indicated that she tensed her muscles and felt her back condition worsen as a result. AR 788. Ganjianpour noted that she never fell down, did not hit anything, and there was no evidence of trauma to her spine. AR 788. Barrios’ medical history showed persistent lower back pain from her previous lumbar spine injuries and surgery throughout the years before 2014. AR 788.

A real and measurable connection between her employment and the lumbar injuries cannot be established. AR 788. Her incapacities are the result of the car accident in 1988 and the resultant surgery and progressive degeneration of her spine as a result. AR 788. The x-rays of the instant date show significant degeneration at L4-L5 and facet degeneration at those levels where she had surgery. AR 788.

In response to the Board’s question whether his opinion contradicts any other doctor’s opinion, Ganjianpour asserted that his opinions align with those of Berman and Sohn. AR 788.

On September 14, 2021, the hearing officer issued proposed findings denying the appeal. AR 90. The hearing officer summarized Barrios’ testimony, including her 1980s car accident, her March 2009 fall, and her 2014 incident. AR 65-66. The hearing officer then summarized the parties’ positions on the service connection issue (AR 68-71) and the medical records (AR 72-86).

The hearing officer noted that the California Supreme Court in Bowen required that section 31720(a) requires a substantial contribution of a service connection, meaning substantial evidence of a “real and measurable” connection between the disability and employment. AR 86. She stated that the issues are whether Barrios’ lumbar injury is service connected and whether the injuries to her right elbow, right wrist, right arm, right knee and hip and thigh are permanently incapacitating. AR 87.

Sohn found that Barrios’ right knee and lumbar injuries were due to the November 24, 2014 incident, with 50% of her back injury and 80% of her right knee injury attributed to the incident. AR 87. The hearing officer found Sohn’s analysis was questionable because he reviewed only medical records after the November 24 incident and only analyzed the 2015 MRI. He did not review the 2009 MRI showing degenerative changes and subsequent back surgery. AR 87. Moreover, his analysis of the mechanism of injury is questionable. Sohn asserted that Barrios fell in the 2014 incident, but she did not. This is an important distinction in determining the significance of the injury and whether objective findings support the mechanism of injury. AR 87.

Tabibian’s report also is incomplete as he did not review any records prior to November 2014. AR 88. Additionally, his physician statements supporting Barrios’ disability application do not explain why Barrios is permanently incapacitated and he did not address the service connection issue. AR 88. For her knee, he relied on Berman’s conclusion without an independent analysis. AR 88.

Berman also did not review medical records prior to November 2014. He did not explain why Barrios cannot return to work and explain whether it was her back or knee injury that prevented her from doing so. AR 88. Like Sohn, he did not compare the 2015 and 2009 MRI results to analyze the back injury. AR 88. While he stated that the November 2014 incident aggravated her pre-existing back injury, he did not explain whether the aggravation was temporary or permanent, making the conclusion unclear. AR 88. He further did not address permanent incapacity in her right knee. AR 88.

Horner opined that the 2009 accident left Barrios with a full range of motion and still able to perform her tasks. AR 88. Ghazal treated Barrios for her back and right knee and imposed restrictions for her knee that were compatible with the duties of a Custody Records Clerk II. AR 88.

Ganjianpour opined that Barrios’ permanent incapacity for her back is not service-connected and that she is not permanently incapacitated for her job duties from her right knee, right thigh, right hip, and right arm. AR 89. Ganjianpour reviewed Barrios’ testimony and the medial records, performed a second physical examination, and found that she was unable to return to work only because of her lumbar injury. AR 89. He noted that the 2009 incident only left her with soft tissue injuries that did not suggest further issues. AR 89. He noted that Barrios tripped but did not fall in 2014 and she was able to control her balance. AR 89. There is no evidence that she sustained significant trauma to her lumbar spine. AR 89. Considering her pre-existing lumbar injuries, there is no real and measurable connection between her employment and lumbar injury. AR 89. Her current incapacity is due to the car accident in 1989 and surgeries, and the progressive degeneration of her spine. AR 89. The x-rays Ganjianpour took on January 25, 2021 show significant lumbar and facet degeneration at L4-L5, which is where she had surgery. There is no evidence that she had further aggravation of her spine as a result of her light work duties. AR 89.

Ganjianpour’s findings are consistent with (1) Feldman’s 2009 diagnosis that Barrios has an underlying degenerative disc disease and that the 2009 fall was a mild injury; (2) Koh’s opinion that all injuries were minor and resolved and that Barrios’ back problems are merely the aggravation of preexisting problems; (3) Taherpour’s findings in 2014 that Barrios’ spine was “normal-unmarkable”; and (4) the medical records from both incidents, including the 2015 MRI showing multi-level degenerative changes but no trauma. AR 89-90. The weight of the evidence supports a finding that Barrios’ permanent incapacity due to her back’s condition was the result of the motor vehicle accident in the late 1980s and is not service connected. None of the injuries to her other extremities permanently incapacitated her. AR 90.

On November 10, 2021, the Board adopted the proposed decision, granting a nonservice-connected disability retirement and denying a service-connected disability retirement. AR 1014. The notice again included a notice of Barrios’ right to appeal. AR 1014.

Petitioner Barrios seeks mandamus to compel the Board to set aside its decision not to find a service connection to her disability retirement. Barrios seeks a service connection for both her lumbar and right knee injuries.[3]

On November 16, 2017, Barrios was granted a nonservice-connected disability retirement by the Board. AR 967. There is no dispute that Barrios is permanently incapacitated from performing her usual duties as Custody Records Clerk II. The issue is whether her permanent incapacity is caused by a real and measurable connection to her job.

A service connection may exist where the industrial cause aggravates or “lights up” a pre-existing condition. Gelman, supra, 85 Cal.App.3d at 92. However, evidence tending to prove only a possibility of industrial causation is speculation that cannot support industrial causation. Kiewit, supra, 234 Cal.App.2d at 838. The issue of service connection is exclusively a matter of medical knowledge and expert evidence is essential. Kiewit, supra, 234 Cal.App.2d at 838. The chief function of medical experts is the description and explanation of the origin, development, and manifestations of the alleged disease. People v. Bassett, supra, 69 Cal.2d at 141. The value of a medical expert’s testimony rests upon the material from which the opinion is fashioned and the expert’s reasoning from the material to the conclusion. Id. An expert’s opinion which rests upon guess, surmise, or conjecture, rather than relevant, probative facts, cannot constitute substantial evidence. Garza v. Workmen's Comp. App. Bd., supra, 3 Cal.3d at 318, n. 3.

Barrios began her employment on October 12, 1999 as a Custody Records Clerk II, assigned to the records unit in the Inmate Reception Center of the Twin Towers correctional facility. AR 103. In late September 1999, the County determined after a medical examination that Barrios was “medically capable of performing this job with no restrictions.” AR 195.

On March 4, 2009, Barrios was “walking to a receiving area to accept a bomb surrender.” She slipped on a puddle of water and her co-worker tried to keep her from falling, but she fell with immediate pain in her ankle, left wrist, left hip, and lower back. She reported the injury to the Department on the day of the injury. AR 361. Pet. Op. Br. at 5.

From 2009 to 2012, Barrios was seen by Feldman, Koh, and Horner. As pertinent, Feldman diagnosed Barrios with lumbar strain. AR 332. He discovered minimal disc degeneration (deterioration) without scoliosis or other deformity for the lumbar spine. AR 332. The damage seemed to be solely soft tissue injury, and Feldman did not anticipate any sequela from it. AR 333. Koh diagnosed Barrios with status post lumbar laminectomy and lumbar strain without any radiculopathy. AR 355. Horner diagnosed her with lumbosacaral strain with radicular complaints. AR 368. Pet. Op. Br. at 6.

In his QME report dated March 21, 2012, Horner stated that Barrios complained of “[d]ull pain in her low back, right hip, left ankle and numbness and tingling in her right calf and foot” as a result of this work-related injury. AR 361. Horner opined that the March 9 injury was an aggravation of a pre-existing injury but that the aggravation did not incapacitate her from performing the usual duties of her job. AR 369. Horner stated that her lumbar impairment was 60% due to the March 4, 2009 accident and 40% due to her 1988 vehicle accident. AR 370. He found her permanently impaired but able to do her usual job duties because her work restrictions did not interfere with her ability to do her job. AR 369. Barrios returned to her job with these work restrictions. Pet. Op. Br. at 5-6.

Barrios relies on Gelman, supra, 85 Cal.App.3d at 96, to argue that the March 4, 2009 work injury aggravated her pre-existing back condition. Pet. Op. Br. at 4, 5, 12.

The Board’s opposition acknowledges that an aggravation and/or acceleration of a pre-existing condition may support a finding of service-connection under CERL. However, the Board notes that Gelman was decided in 1978, before the 1980 amendment to section 31720 requiring that the employment make a substantial contribution to the permanent incapacity for a service connection. Under the controlling Supreme Court case authority, Barrios must show that the March 4, 2009 work injury caused a real and measurable aggravation of the medical conditions which incapacitated her when she last performed her usual duties in December 2015. Bowen, supra, 42 Cal.3d at 578.

As the Board points out, the March 4, 2009 accident at work cannot be relied upon for a real and measurable contribution to Barrios’ permanent incapacity because expert medical testimony is required to show the contribution of her employment and none of the four physicians who opined that she is permanently incapacitated – Sohn, Berman, Tabibian, and Ganjianpour – stated that the March 4, 2009 work injury made such a contribution. Opp. at 11-12.

Berman and Sohn mentioned the 2009 injury in the medical history sections of their reports (AR 233, 253), but neither doctor opined that the injury contributed to Barrios’ inability to perform her usual duties. AR 53, 281-82. The absence of the March 4, 2009 injury from these doctors’ discussions on causation means that the March 2009 work injury did not have any real and measurable effect on Barrios’ permanent incapacity.

Feldman, Barrios’ treating physician, opined that the March 2009 accident caused solely soft tissue injury and he did not anticipate any sequela from it. AR 333. The objective medical evidence from 2009 supports this conclusion. Feldman stated that a June 8, 2009 lumbar spine MRI showed “no acute pathology”. AR 453. He released Barrios on September 3, 2009 to perform full duties without any work restrictions. AR 471. Koh stated in his August 9, 2011 report that “[t[here are no additional injuries to L4-L5 based on my evaluation” and he did not apportion her injuries because none were attributable to the 2009 accident. AR 356. These findings demonstrate that the March 4, 2009 injury made no real and measurable contribution to Barrios’ lumbar-spine condition.

It is true that Horner evaluated Barrios on March 21, 2012 and concluded that most of her impairment at that time was due to the March 4, 2009 injury. AR 368-69. However, no medical expert evaluating Barrios after she stopped working in December 2015 connected Horner’s finding to her permanently incapacitating lumbar condition. That is, no doctor opined that the March 2009 work injury made a real and measurable contribution to her permanent impairment in 2015. The Board correctly argues (Opp. at 13) that Barrios’ attempt to use Horner’s 2012 evaluation to support a finding that the March 4, 2009 work injury contributed to her permanent incapacity in 2015 is improper without a medical opinion to that effect. No medical expert connected Horner’s 2012 findings with Barrios’ inability to perform her usual duties in December 2015.

In reply, Barrios does not dispute these points and appears to abandon the March 4, 2009 injury as aggravating her existing medical condition for purposes of a contribution to her permanent incapacity.

Barrios argues that she was not permanently incapacitated from performing her job until her work-related injury in 2014. This injury was a real and measurable aggravation of her existing medical condition and contributed to her permanent incapacity. Pet. Op. Br. at 13.

The incident occurred on November 24, 2014. She was walking to the breakroom through an area where new carpet had been installed. Her foot got caught in between the carpet and the loose rubber stripping causing her to stumble forward. She kept her balance and did not fall to the ground, but she twisted awkwardly, injuring her neck, back, right hip, and right knee. She reported the injury to her supervisor and awoke the following day in severe pain in those areas. Pet. Op. Br. at 6.

Barrios was evaluated by Taherpour on November 25, 2014, who x-rayed her back and right knee. She was diagnosed with a torn right knee meniscus and back sprain. She received pain medications and a course of physical therapy. She was released to return to work with restrictions. Pet. Op. Br. at 6.

On March 6, 2015, Barrios had an MRI of her lumbar spine which was showed degenerative disc disease in the lumbar spine. Additional physical therapy was initiated which provided minimal relief.

On May 20, 2015, Barrios had an MRI of her right knee which revealed internal derangement of the knee. Dr. Hakimian recommended a corticosteroid injection which Barrios declined in favor of physical therapy, topical creams, and pain medications.

Despite treatment, Barrios did not improve. She retained legal representation and was referred to Tabibian, who concurred with the previous diagnosis. She continued working with restrictions until Tabibian removed her from work on December 2, 2015 because she was not improving.

Barrios argues that all doctors, including the LACERA panel doctor, Ganjianpour, found that she is permanently incapacitated from her job and all except Ganjianpour found a service connection. Pet. Op. Br. at 7. The parties agreed to use Sohn and Berman for Barrios’ workers’ compensation claim.[4] Barrios contends that these physicians corroborate her treating physician, Tabibian, in concluding that there is a service-connection. Pet. Op. Br. at 7-8.

In a November 18, 2015 report, Sohn discussed Barrios’ job duties and the history of her injuries, including her back surgery and other surgeries, and summarized how Barrios was injured and the treatment she received. AR 228-32. Sohn stated that Barrios has a disability in both her back and knee which is service connected: “With respect to the back, [Barrios] has had the prior laminectomy. In my opinion, 50% of this patient’s condition is due to the old laminectomy, 50% due to her industrial injury of November 2014. With respect to her knee, 20% is due to degenerative changes and degenerative disc disease, 80% due to the injury of November 2014. AR 246. Barrios contends that Sohn’s opinion is credible, solid proof. Pet. Op. Br. at 7.

The hearing officer[5] found Sohn’s analysis questionable because he reviewed only medical records after the November 24 incident and only analyzed the 2015 MRI. He did not review the 2009 MRI showing degenerative changes and subsequent back surgery. AR 87. Moreover, his analysis of the mechanism of injury was questionable. Sohn asserted that Barrios fell in the 2014 incident, but the fact is that she did not fall. This is an important distinction in determining the significance of the injury and whether objective findings support the mechanism of injury. AR 87.

The Board’s opposition repeats the hearing officer’s criticisms that Sohn’s opinion is based on an incomplete medical-record review and inaccurate description of Barrios’ November 24, 2014 work injury. Sohn did not review any medical records earlier than November 27, 2014, including the June 8, 2009 and July 11, 2014 lumbar MRI reports which show degeneration before the November 24, 2014 incident. Without reviewing these records, Sohn’s opinion on apportionment is speculative. Also, Sohn’s opinion on causation was based on the inaccurate belief that Barrios tripped and fell on November 24, 2014 (AR 223, 244), but she caught herself and did not fall. AR 832. Further, Sohn did not review any records after Barrios’ November 27, 2017 right-knee surgery to determine the current assessment of her right knee. Opp. at 13-14.

Barrios argues that Sohn accurately stated that she tripped and fell on November 24, 2014 and that is exactly how the injury occurred. While LACERA staff inaccurately stated that Barrios landed “on the ground” (AR 104), she did trip and fall. The Oxford Languages Dictionary defines “trip” as “catch one's foot on something and stumble or fall” and defines “fall” as “move downward, typically rapidly and freely without control, from a higher to a lower level.” Reply at 2.

“Q. You mentioned that you were walking and there was a piece of rug that was sticking out and you tripped over the rug.... Did you fall forward? Sideways? Backwards?

A. I did not hit anything. I went stumbling, moving awkwardly, hurting my lower back, my right knee, my right ankle.

Barrios misses the hearing officer’s point. The issue is not whether she lurched forward after tripping such that Sohn’s description could be technically accurate. Rather, the issue is whether she hit the ground for purposes of injury. Barrios may have “fallen” forward, but it is a ground impact that is important for the mechanism of injury according to Ganjianpour. Sohn did not address this issue.

Barrios argues that, while Sohn did not review medical records earlier than November 27, 2014, his opinion still is substantial evidence because he spent as one hour of FaceTime with Barrios, two hours of record review, and 1.5 hours preparing his report. AR 227. Reply at 3.

Barrios also questions how Sohn’s opinion on causation can be speculative. He apportioned her permanent back disability and permanent knee disability between her 2008 traffic accident injury and her November 2014 employment injury. His report is aligned with other medical experts who considered non-industrial and industrial factors, is well reasoned, and is supported by the facts. Even if Sohn did not consider the 2009 injury, that would only make her employment have a higher percentage of contribution to her disability. Reply at 3.

While it is not always important to review all medical records, it was important to do so in this case. The issue is whether the November 2014 incident either aggravated Barrios’ injuries or “lit up” those injuries when she was asymptomatic. In order to opine on that issue, the expert must review the medical records before the November 2014 incident, particularly the records between 2009 and November 2014. The expert cannot realistically opine on the aggravation of a pre-existing injury, or whether an injury lit up the symptoms of a pre-existing injury, without knowing the patient’s medical state before incident. Sohn’s failure to do so makes his opinion about aggravation and apportionment speculation that does not qualify as substantial evidence.

Berman examined Barrios on April 17, 2018. AR 250. He took a history of her November 2014 injury along with other injuries in her past, including the 1988 car accident and the 2009 injury. Regarding her 1988 injury, he stated:

“In 1988, she was involved in a work-related motor vehicle accident while working as a shuttle driver for American Medical Enterprises. She was driving and stopped for a pedestrian when she was rear-ended. She was taken by paramedics to an emergency facility and evaluated with x-rays. She was referred to the company doctor. She had x-rays. She had an MRI and was diagnosed with a fracture of the right hip. She was off work 5 years. She underwent surgery with placement of a pin. She also had surgery to the lower back on August 28, 1990. She had hardware removed from the hip on March 25, 1991. She had physical therapy following each procedure. She returned to work and did regular duties. She would have flare-ups and required further treatment. The flare-ups would resolve. She noted complaints in particular if she would sit for prolonged periods of time.” AR 252. Reply at 4.

Berman discussed all of Barrios’ surgeries, noting that she had surgeries to her right elbow, right ganglion cyst excision from the wrist, right knee surgery, 2 bunionectomies, lumbar surgery at L4-5, two right hip procedures and an umbilical hernia surgery. AR 253. Reply at 4.

Regarding her 2009 injury, Berman stated: “On March 4, 2009, she slipped in a puddle of water at work and reinjured her back as well as her left hip and left wrist. She saw the company doctor. The hip and wrist resolved, but she has had persistent lower back issues. AR 253. Reply at 4.

Berman reviewed Barrios’ medical records for the November 2014 work injury, including the records of Taherpour, who examined Barrios right after her injury and wrote “Diagnosis: Musculoligamentous sprain/strain, lumbar spine.” AR 257. In total, Berman reviewed and summarized 48 different reports. AR 276.[6] Reply at 4.

Berman examined, inter alia, Barrios’ lumbar spine and right knee. AR 254-57. Berman agreed with Sohn’s analysis of causation:

“With regards to causation and apportionment, Dr. Sohn had provided an analysis. I tend to agree. He noted that the applicant had a prior surgery. If one looks at the MRI that was done following the incident, the findings are pre-existing. Her condition, however, was "re-aggravated" because of this incident and this includes radiculopathy. He had apportioned 50% to findings that are pre-existing, and I would agree. There are findings as it relates to the natural history of progression. There are findings that would be problematic as described. There are findings that would potentiate the effects of the industrial injury and contribute to pain and stiffness. Fifteen percent would relate to the aggravating effects of this incident.”

“I also agree with regards to the right knee. Twenty percent was pre-existing as it relates to degenerative changes with the same how and why type of analysis. Eighty percent would relate to the November 2014 date of injury.” AR 281-82 (emphasis added).

The hearing officer found that Berman, like Sohn, did not review medical records before November 2014. He did not explain why Barrios cannot return to work and whether it was her back or knee injury that prevented her from doing so. AR 88. Like Sohn, he did not compare the 2015 and 2009 MRI results to analyze the back injury. AR 88. While he stated that the November 2014 incident aggravated her pre-existing back injury, he did not explain whether the aggravation was temporary or permanent. AR 88. He further did not address permanent incapacitation due to her right knee. AR 88.

The Board’s opposition repeats and embellishes on these arguments. Berman’s opinion is speculative because he failed to review any medical records dated before November 24, 2014, including the electrodiagnostic studies showing pre-existing disc degeneration and lumbar radiculopathy. In September 2009, after reviewing the June 8, 2009 MRI, Feldman diagnosed Barrios as: “Back and right leg radicular symptoms status post lumbar discectomy.” AR 470. This diagnosis connects Barrios’ radicular symptoms to her 1989 back surgery. The lumbar MRI reports in June 8, 2009 and July 11, 2014 show disc degeneration. Opp. at 14.

Berman said that Barrios’ lumbar spine was re-aggravated because of the November 24, 2014 incident “and this includes radiculopathy.” AR 281. But Barrios experienced low-back radiculopathy as early as June 2009 (AR 453), which was confirmed in Feldman’s June 23, 2010 EMG/NCS studies and by Feldman. AR 166. Berman’s failure to review these records makes his opinion that Barrios’ lumbar spine was re-aggravated speculative and unreliable. Berman also fails to explain how the awkward-twisting movement caused any new and/or aggravating injury to Barrios’ lumbar spine. Opp. at 14.

Barrios replies that Berman reviewed the March 6, 2015 MRI report and recognized that the lumbar injury was chronic but still found the November 2014 injury aggravated her condition. “In the March 6, 2015 MRI, there are findings that in all probability were chronic. This incident did however aggravate her pre-existing lumber condition and became more symptomatic. This includes not only axial findings but radicular findings.” AR 279 (emphasis added). Berman reviewed sufficient medical reports along with his examination to make a sound conclusion. Reply at 4.

The court agrees with the Board. Berman’s acknowledgement that Barrios’ lumbar injury is chronic is only part of the aggravation issue. Berman failed to explain how the November 2014 incident aggravated her pre-existing and chronic back injury. He did not discuss the mechanism of injury and discuss its relationship to the aggravation. Berman also suggests that the 2014 incident made her chronic injury “more symptomatic, both for axial and radicular findings” (AR 278-79), which is the lighting up issue, but he could not reasonably so opine without reviewing previous medical records showing a lack of symptoms.

Barrios argues that Tabibian’s August 30, 2019 report supports a service connection: “The patient is post AME with Dr. Berman in April 2018....Industrial causation to low back and right knee with future care.” AR 301.

The Board’s opposition responds that Tabibian did not describe the mechanism of injury caused by the November 24, 2014 incident. He also not review any medical records before November 2014. Finally, he addressed causation only by relying on Berman: “The patient is Post AME with Dr. Berman in April 2018. Patient at MMI. Industrial causation to low back and right knee with future care.” AR 301. Opp. at 14-15.

The court agrees that Tabibian’s opinion is derivative of Berman’s and suffers from the same defects.

Ganjianpour examined Barrios on August 28, 2017 and January 21, 2021. Ganjianpour opined that she is permanently incapacitated from performing her job based on incapacity to her lumbar spine, but not to her right knee.

In his 2017 report, Ganjianpour wrote: “Based on the available information, it is this examiner’s opinion that [Barrios] is unable to perform the physical function of light duty work....due to her lumbar spine condition.” AR 192. As for her right knee, Ganjianpour stated: “With respect to the right knee condition, the patient twisted her right knee and had a meniscus tearing. The meniscus tearing is scheduled to be treated. Once the meniscus tear is treated, the patient is able to perform all of her job duties.....[A]lthough the injury to the right knee was service related, there is no incapacities for the right knee that prevent her from returning back to her previous employment.” AR 193.

In his January 21, 2021 report, Ganjianpour wrote: “I believe that Ms. Barrios is permanently incapacitated from performing her job duties due to her lumbar spine condition.” AR 787. Her right knee would require work restrictions: “With respect to right knee, [Barrios] has had a meniscectomy. She remains symptomatic with some weakness of the quads, therefore she is incapacitated from doing prolonged standing and walking....” AR 786. He did not believe that these restrictions to her knee prevent her from performing her job. Ganjianpour repeated that Barrios’ lumbar injury prevented her from working: “I believe that Miss Barrios is permanently incapacitated from performing her job duties due to her lumbar spine condition.” AR 787.

In his August 28, 2017 report, Ganjianpour responded to the Board’s question about a service connection and concluded that Barrios was complaining about ongoing back pain and treatment as late as July 2014 and that the mechanism of the November 2014 incident was not significant:

“3. Did applicant's employment play a role in any injury or illness that the applicant claims to cause incapacity for duty?”

“I had the opportunity to review the medical records. The patient sustained a lumbar spine injury back in the late 80s and underwent lumbar spine discectomy and laminectomy by Dr. Delamarter at UCLA. Subsequently the patient had ongoing lumbar spine issues and treatment as late as July of 2014, which is approximately four months prior to her industrial injury, she was complaining about back pain. The back pain had gotten progressively worse over the years, and in 2015, she had to be taken off of work. The mechanism of injury is described as a trip and awkward twist of her body. This is not a significant mechanism of injury and her incapacities with respect to her lumbar spine condition and her lumbar spine condition has gotten progressively worse as a result of her original back injury in late 80s. Therefore, it is within reasonable medical probability that the applicant's employer did not substantially or measurably contribute to her incapacities.” AR 193.

Ganjianpour also found that Barrios twisted her right knee on November 24, 2014, resulting in a meniscus tearing that is scheduled to be treated. Once the meniscus tearing is treated, Barrios would be able to perform all of her job duties with respect to light work as well as her usual and customary job duties. Therefore, although the injury to the right knee was service related, there is no incapacities for the right knee that prevent her from returning back to her previous employment. AR 193.

Ganjianpour re-examined Barrios on January 25, 2021 and the Board again asked him about causation:

“5. If Ms. Barrios is permanently incapacitated, is there a real and measurable causal connection between her employment and the injury or illness that causes incapacity? (Retirement law requires proof of a real and measurable industrial aggravation or contribution toward the permanent incapacity before the board may find that a disability is service-connected. In addition, the courts have held that an infinitesimal or inconsequential connection between the employment and the disability is insufficient for a service-connected disability retirement.)”

“Answer: I had the opportunity to review the history and review the 2014 incident in the medical records that were provided. I reviewed that with [Barrios] today. [She] states that she was walking and tripped over a rubber footing. She never sustained a fall. She was able to control her balance. She felt like she tensed her muscles. She indicates that she felt like she had worsening of her back condition as a result. However, there is no evidence that she sustained any significant trauma to her lumbar spine. Also, when considering the details of her previous lumbar spine injuries and surgery, persistent lower back pain that she was experiencing throughout the years before 2014, in view of her...light duties, a real and measurable connection between her employment and the injury to her lumbar spine cannot be established. It is this examiners (sic.) opinion that the current incapacities are as a result of the original injury in 1989 when she was involved in a car accident and the resultant surgery and progressive degeneration of the lumbar spine as a result. It should be noted that the x-rays that are obtained today in my office showed significant degeneration at L4-L5 and facet degeneration at those levels which is the level that she had surgery. There is no evidence that she has further aggravation of her lumbar spine result of her light work duties.” AR 788 (emphasis added).

The hearing officer found Ganjianpour’s findings to be consistent with (1) Feldman’s 2009 opinion that Barrios has an underlying degenerative disc disease and that the 2009 fall was a mild injury; (2) Koh’s opinion that all injuries were minor and resolved and that Barrios’ back problems are merely the aggravation of preexisting problems; (3) Taherpour’s finding in 2014 that Barrios’ spine was “normal-unmarkable”; and (4) the medical records from both incidents, including the 2015 MRI showing multi-level degenerative changes but no trauma. AR 89-90.

The Board’s opposition argues that the hearing officer found Ganjianpour’s opinion more reliable because he was the only medical expert to review all the available medical evidence, including Barrios’ treatment records and MRI and EMG/NCS reports predating the November 24, 2014 incident. AR 145-91. Unlike Sohn, Berman, and Tabibian, his opinion was based on Barrios’ complete medical history. Ganjianpour also was the only doctor who discussed Barrios’ description of the November 24, 2014 tripping incident and he concluded that the described awkward-twisting movement was not significant enough to cause any new or additional injury to her lumbar spine. AR 788. Opp. at 15.

Barrios argues that she had surgery in 1989 and ten years later she was hired by the County in 1999 and did not have any medical issues preventing her from performing her job. AR 195. Then, in 2009, ten years after she was hired, she was injured on the job and diagnosed with lumbosacaral strain with radicular complaints. AR 368. This injury caused permanent impairment to her lumbar spine, but not enough to incapacitate her from her job. She was injured again at work in 2014, treated, and tried to return to work as she did before. She was unable to do so and was taken off work by Tabibian on December 2, 2015. The law is clear that an aggravation of a pre-existing injury to an employee who was not permanently disabled is considered a service-connected disability. Pet. Op. Br. at 11-13.

Barrios notes that Ganjianpour attributed her disability to the 1989 injury, but she was able to work for 25 years after her 1989 accident. Ganjianpour failed to discuss that she was not incapacitated from the 1988 accident when she began working for the County and that she worked without restrictions after her March 4, 2009 work-related injury until her November 2014 work-related injury. Ganjianpour solely attributes Barrios’ lumbar disability to her traffic accident injury and surgery 30 plus years ago without reconciling why the November 2014 work-related injury did not contribute to the permanent incapacity that occurred immediately afterwards. Reply at 3. She adds that, if her knee injury from the March 14, 2014 accident is work-related as Ganjianpour states, then it can be inferred that the aggravation to her lumbar spine also is service connected. Pet. Op. Br. at 9, n. 2

Barrios further argues that Ganjianpour mistakenly asserted that his opinion did not differ from the other medical experts, asserting that there is no “contrary opinion.” AR 193. In response to the Board’s question whether any of his opinions were contradicted by other doctors, Ganjianpour stated in his second report: “[M]y opinions are in line with the physicians report including the AME Dr. Berman and the and AME Dr. Sohn.” AR 788. Barrios points out that Berman and Sohn contradicted Ganjianpour because they found a service connection and he did not. Pet. Op. Br. at 14. Barrios contends that Ganjianpour is not expected to know that an aggravation of a pre-existing injury is enough to find service connection and it was up to the Board to make the correct decision by applying the law to the medical opinions to reach the correct determination. The Board failed to do so. Pet. Op. Br. at 12-13.

Ganjianpour’s opinion is subject to some criticism. He stated that Barrios had ongoing lumbar spine issues and treatment as late as July 2014, approximately four months prior to her November 2014 injury, and that she complained about back pain which had gotten progressively worse over the years. AR 193. While it is true that she had lumbar issues over the years, the medical records are sparse between Horner’s March 21, 2012 report that Barrios continued to experience dull pain in her lower back and her November 2014 incident, consisting only of Rawal’s July 11, 2014 MRI showing degenerative disc disease in L4-L5. On the other hand, there is no reason to believe that Barrios’ back pain ever stopped. She certainly never told any doctor that it had and Berman’s opinion that the November 2014 incident may have lit up her symptoms is totally lacking in foundation.

Barrios is correct that Ganjianpour was wrong in asserting that his opinion did not differ from the other medical experts. AR 788. Berman and Sohn contradicted Ganjianpour because they found a service connection where he did not. Ganjianpour may have been thinking of his opinion on permanent incapacity, for which he, Sohn, and Berman all concluded that Barrios’ lumbar-spine condition rendered her permanently incapacitated from her job duties. While this contradiction may show a misunderstanding or some carelessness, the court does not conclude that is an important failure.

Ganjianpour’s opinion is supported by Feldman’s 2009 diagnosis of an underlying degenerative disc disease as well as the MRIs. The June 2009 MRI revealed that Barrios is “status post right-sided hemilaminotomy and microdiskectomy” with mild degeneration in the L4-L5 disk of the spine, as well as broad-based disc bulges from the L2 to L5 vertebrae. AR 447-48. Rawal’s July 11, 2014 MRI revealed degenerative disc disease via eccentric disc bulge left of the midline of the L4-L5 vertebrae. AR 538. Lee’s March 6, 2015 MRI revealed multi-level degenerative changes, including broad-based disc bulges between the L3, L4, L5, and S1 vertebrae. AR 490. Finally, Ganjianpour took x-rays on January 25, 2021 that showed significant degeneration at L4-L5 and facet degeneration at those levels. AR 788. Ganjianpour interpreted this objective MRI and x-ray evidence as showing that Barrios has suffered a progressive degeneration of her lumbar spine beginning with the 1988 accident and no doctor contradicted him on this point.

Ganjianpour also is uncontradicted in his opinion that the mechanism of Barrios’ November 2014 injury was insufficient to cause any lumbar trauma. He noted that she never sustained a fall to the ground and was able to control her balance. While Barrios reported to him that she felt like she tensed her muscles and her back condition worsened as a result, he rejected that as a cause of any significant trauma to her lumbar spine. As a result, there was no real and measurable connection between her employment and the injury to her lumbar spine. No doctor contradicted Ganjianpour on the mechanism of injury issue.

As for Barrios’ right knee injury, she sustained a meniscus injury on November 2014. That injury was repaired by Gazal on November 29, 2017 (AR 604) and there is no dispute that it resolved. While Barrios remained symptomatic with quad weakness as of Ganjianpour’s January 21, 2021 report, he explained that it would improve. AR 786. Both Berman and Gazal explained that Barrios had degenerative chondral wear on her knee (AR 279, 605) which made her prognosis for walking guarded. AR 605. Ganjianpour did not find a real and measurable connection between her employment and the meniscus injury, and no doctor attributed her degenerative chondral condition, as opposed to the meniscus condition, to the November 2014 incident.

The principal issue is whether Barrios’ November 2014 incident aggravated her pre-existing lumbar injury or lit up her symptoms in a real and measurable way. The court concludes that it did not. The medical records show that Barrios had longstanding and degenerative lumbar condition stemming from her 1988 vehicle accident and subsequent surgeries that never resolved. She was able to return to work, but that does not mean she was asymptomatic. The mechanism of the November 2014 incident was not such as could aggravate her lumbar injury and her subsequent permanent incapacity is attributable to degeneration of her lumbar spine and not the incident.

Barrios’ knee was injured in the November 2014 incident, but her meniscus injury is not a cause of permanent incapacity. Her right knee may be permanently incapacitated, but it is due to degeneration and not a service connection. There is no real and measurable connection between Barrios’ employment and her permanent incapacity.

The Petition is denied. The Board’s counsel is ordered to prepare a proposed judgment, serve it on Barrios’ counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for September 29, 2022 at 9:30 a.m.

[1] All further statutory references are to the Government Code unless otherwise stated.

[2] The LACERA evaluation report states that Barrios “landed on the ground” but that is not true. See AR 104.

[3] Barrios makes no claim of Board error with respect to her right arm, elbow, wrist, thigh, and hip injuries and the court generally will not refer to these injuries in discussing the medical records.

[4] Disability and workers compensation are related in subject matter and harmonious in purpose. Therefore, courts look to workers’ compensation precedent for guidance when dealing with issues similar to disability pension law. Bowen, supra, 42 Cal.3d at 578, n. 4.

[5] For clarity and convenience, the court will refer to the hearing officer’s proposed decision rather than the Board’s adoption of it.

[6] Barrios notes that one of the reports Berman reviewed was that of Dr. Sam Bakshian (“Bakshian”), a business associate of Ganjianpour. See AR 508. Bakshian diagnosed Barrios after her November 2014 injury as having lumbar spine strain with history of right lower extremity radiculitis with onset of lower left extremity radiculitis and MRI evidence of multilevel moderate degenerative changes primarily L4-5 and mild L3-4, L5-S1, and (3) prior 1988 right-sided laminectomy L4-5. Bakshian wrote: “Agree with need for surgery should be deferred to future medical providers; she will require a two level spinal fusion L4 – 5 and L5 – S one in the future, however reluctant to offer this procedure at this time. I do feel that her current pain generators are initiating from her lumbar spine facets and her primary issue over the sacroiliac joint”. AR 276. Bakshian wrote a second report on March 2, 2018 in the workers’ compensation case in which he restated his diagnosis and a treatment plan for “pain management consultation in pursuit of lumbar spine epidural steroid injections at L4-L5 and LS-S1.” AR 277.

Barrios argues that Bakshian’s March 2 report recommended workers’ compensation treatment for her lumbar spine and Ganjianpour’s office financially benefitted from Bakshian’s attribution of her lumbar spine disability to industrial causation. She concludes that Ganjianpour either did not review this record from his own office or else did not list it. Additionally, Ganjianpour initially listed Bakshian and Dr. Patel as members of his organization, Tower Orthopedics and Sports Medicine (AR 510), but his subsequent report, made after Bakshian examined Barrios, eliminated those names from his report heading. AR 739. Reply at 5.

Barrios’ reliance on Bakshian’s reports for the first time in reply is improper and may be disregarded. New evidence/issues raised for the first time in a reply brief are not properly presented to a trial court and may be disregarded. Regency Outdoor Advertising v. Carolina Lances, Inc., (1995) 31 Cal.App.4th 1323, 1333. In any event, the quotation from Bakshian’s report does not clearly indicate that Barrios’ lumbar injury was work-related; both his reports deferred to Tabibian on her work status. AR 277. Finally, Barrios’ implication that Ganjianpour hid his partner’s name is unsupported.