Judge Mary H. Strobel, Case 21STCP00230 2023-01-12 Tentative Ruling

Petitioner Jason Gordon (“Petitioner”) petitions for a writ of administrative mandate directing Respondents City of Los Angeles (“City”) and Michel Moore, Chief of Police (collectively “Respondents”) to set aside an administrative decision, after a Board of Rights hearing, to terminate Petitioner from his position as police officer with the Los Angeles Police Department (“LAPD”).

On January 8, 2015, during the course of his duties as a police officer, Petitioner slipped and fell on his back while walking down an embankment. (AR 462.) The next morning, Petitioner sought medical treatment and was placed on Injured on Duty (IOD) and Temporary Total Disability (TTD) status through March 2015 after suffering from a lower back injury. (AR 462-463, 569.)

Petitioner returned to work on light duty in March 2015. In July 2015, he experienced pain again and returned to TTD status. (AR 73, 464.) At the administrative hearing, Petitioner testified that he was in “a significant amount of pain” during this period: “In the morning would be a grabbing sharp pain. Getting out of bed, it would be an ache that would radiate down my leg. Just a constant pain.” (AR 464-465.)

When he was placed on TTD in January 2015 and July 2015, Petitioner was permitted to do "treadmill and light weights in the gym". (AR 465; 886-894; 921-929.) Petitioner typically went to the gym in the afternoons for approximately an hour after the pain had dissipated and he had moved around. (AR 465-466, 467, 516.) Petitioner was a former professional golfer and working out and going to the gym were normal activities for him prior to his work-related injury. (AR 573, 552-553.) Petitioner testified that, as a professional athlete, he learned how to be “as careful as possible” in working out. (Ibid.)

On September 30, 2015, Petitioner was put on modified work which would be a "sit down job" with "frequent changes of position as tolerated." This also meant restriction of lifting up to 25 pounds and positions that did not require prolonged sitting or heavy lifting. (AR 922-929, 467-468.)

On November 10, 2015, Petitioner returned to work full duty. (AR 466-468, 152, 269- 270, 934-938.) During this time, Petitioner was being treated by his primary care physician and spine specialist, Dr. Jason Berkley. (AR 269-270.)

On November 20, 2015, Petitioner participated in a Ferrigno Legacy Body Physique Competition. (AR 468.) He recalls mentioning this to Dr. Berkley in passing. (AR 483-484.) He recalls still being in pain during this period. (AR 468.) Dr. Berkley later testified that Petitioner never mentioned that he was training for a bodybuilding competition. (AR 331.)

On November 30, 2015, Petitioner reported that he had recurring back pain. (AR 494.) Dr. Berkley placed Petitioner off work starting December 1, 2015. (AR 940.) From December 1, 2015, to April 2016, Petitioner remained on TTD. (AR 501.) During this time off, Petitioner continued his habit of daily workout at the gym of about 45 minutes to an hour. (AR 467, 501.)

Surveillance; Further Treatment with Dr. Berkley; and Second Bodybuilding Competition

In April 2016, Petitioner was scheduled to return to work but complained to Dr. Berkley of a flare up of pain in his lower back. Dr. Berkley put Petitioner on TTD status again. (AR 89, 96.) Around April 18, 2016, LAPD’s Special Operations Division, Worker’s Compensation Fraud Unit (“SOD”) began conducting surveillance of Petitioner. (AR 1000, 69, 82.)

From April 2016 to November 2016, Petitioner continued to treat with Dr. Berkley. Petitioner did some light duty work and was also placed on TTD for much of this period. The light duty work consisted predominately of front desk work and sitting for long periods with his police vest and belt on. (See e.g. AR 578-579.) Petitioner testified that he found the constant sitting to be difficult for his recovery from lower back injury. (Ibid.) Dr. Berkley included no bending and no twisting as restrictions to eliminate any aggravation to Petitioner’s back. (AR 287-288.) Petitioner received cortisone injections to treat his pain. (AR 285-291.) Dr. Berkley noted that Petitioner could go to the gym and do light weight workouts, resistance training but no heavy lifting. (AR 290.)

On June 21, 2016, during a regular follow-up visit, Dr. Berkley recommended Petitioner received injections and possibly surgery. (AR 296, 298.) He placed Petitioner on TTD for four weeks. (Ibid.)

On July 12, 2016, Petitioner was observed by SOD completing one dead lift at the gym of a large amount of weight. Surveillance video and a SOD report show that there were multiple large weights on each side of the barbell. The SOD agent estimated Petitioner dead lifted total weight of 365 pounds one time. Petitioner was demonstrating to his son how to complete a deadlift. (AR 98, 101, 1025-26; see LAPD Video Disc No. 3, 7/12/16, WC 16, Recording No. 4 at 1:16-2:27 minutes.)

On July 25, 2016, Petitioner reported that he could not sit for longer than 15 minutes and that “lifting where he had to lean over or bend forward was very difficult for him for his back pain.” (AR 302-303.) Petitioner told Dr. Berkley that he still “could not do anything” work-related. (AR 107, 304.) Petitioner did not tell Dr. Berkley he had dead lifted a large amount of weight recently. At the administrative hearing, Dr. Berkley opined that squatting or bending over with weights could exacerbate Petitioner’s injury. (AR 303-304.)

On August 15, 2016, Petitioner told Dr. Berkley that his pain was nine out of ten and was getting worse and that he “could not do anything”. (AR 122-123, 307, 308.)

On August 18, 2016, Petitioner was observed by SOD completing a workout which included seated leg extension leg press, seated calf raises, hamstring curls, and 35 minutes of elliptical cardio. (AR 108, 110.)

On August 23 and 24, 2016, Petitioner was observed running multiple errands for over two hours each day which included trips to the gas station, Lowe’s, Home Depot, the Magic Mountain to pick up his son, Circle K, 7-Eleven, Ross, Cosmo Beauty Salon, Auto Zone. He also took walks with his son and his girlfriend. (AR 110-111.)

On August 31, 2016, Petitioner was observed running errands which included unloading a large living room chair himself from his vehicle. He also completed a workout later that day. (AR 112-113; AR 1047-1050; LAPD Video Disc 8, 08/31/16, WC 16, Rec. 1.)

On September 26, 2016, Petitioner again told Dr. Berkley that he could not do anything and he was in too much pain to work. (AR 124.) Petitioner did not mention anything about another bodybuilding competition scheduled on December 10, 2016, for which, he was training. Dr. Berkley would have told him not to do it. (AR 322.) Dr. Berkley also testified that “if I had known that his physical limitations were not what I was under the impression of, I would have probably put him back to full duty at that point, knowing he was able to do all that.” (Ibid.)

On October 11 and 18, 2016, Petitioner was observed completing a workout. (AR 126, 128-129.) On October 20, 2016, Petitioner again visited Dr. Berkley and told him that his back pain was worse; that just two days ago, he could barely walk; that his pain was eight out of ten; that there is “no way he could possibly work”; and he “can barely do anything.” (AR 130-131, 323-331.) Petitioner added that he couldn’t shop for groceries and stayed home all day and did not do much at all. (AR 131.) He also stated that using the elliptical gave him some relief. (AR 131.)

On December 10, 2016, Petitioner competed in his second bodybuilding competition. (AR 134, 136, 1096-99.) Petitioner did not inform Dr. Berkley that he was training for or competing in this competition. (AR 331.)

On August 24, 2018, the District Attorney’s Office filed a criminal case against Petitioner alleging two felony counts. Count 1 was for worker’s compensation fraud, Insurance Code section 1871.4(a)(1) and Count 2 was for perjury, Penal Code section 664-118(a). (AR 1209.)

On July 2, 2019, Petitioner pleaded no contest to Count 1 as a misdemeanor and was convicted of worker’s compensation fraud. Count 2 was dismissed pursuant to a plea negotiation. (AR 1212-14.) Petitioner was placed on summary probation for 36 months and was ordered to complete 300 hours of community service, pay court fees, and pay restitution to the victim, City of Los Angeles, in the amount of $12,048.96. (AR 1213.)

On August 12, 2020, after completing all the terms and conditions of his probation, Petitioner moved to judicially dismiss the case pursuant to Penal Code section 1203.4(a). The court granted the motion; ordered the plea, verdict, or finding of guilt be set aside and vacated and a plea of not guilty be entered; and ordered the information dismissed as to Count 1. (AR 1216)

In 2018, LAPD terminated Petitioner from his position as police officer for misconduct. Petitioner appealed the termination, and a Board of Rights hearing commenced on September 28, 2020. Petitioner was charged with the following five counts:

Count 1. Between April 18, 2016 and December 10, 2016, you, while on IOD-TTD status, collected worker’s compensation benefits you were not entitled to receive.

Count 2. Between April 18, 2016 and December 10, 2016, you, while on IOD-TTD status, failed to disclose pertinent information to Dr. Berkley regarding your physical abilities resulting in a continuation of IOD benefits.

Count 3. Between April 18, 2016 and December 10, 2016, you, while on IOD-TTD status, engaged in activities inconsistent with your medical claim.

Count 4. On or about February 14, 2017, you, while on IOD-TTD status, perjured yourself when you stated during a sworn deposition you never worked out with weights over 100 pounds.

Count 5. On or about July 2, 2019, you, while off duty, were convicted of worker’s compensation insurance fraud. (AR 9-10.)

Petitioner pleaded not guilty to all five counts. (Ibid.) The Board found Petitioner guilty on Counts 3 and 5 and not guilty on Counts 1, 2, and 4. Considering that Petitioner deceived Dr. Berkley and LAPD, and also the risk that Petitioner was subject to disclosure pursuant to Brady v. Maryland (1963) 373 U.S. 83, the Board found Petitioner’s removal from the Department was the appropriate penalty. The Board stated that it did not consider Count 5 in the penalty because the conviction was expunged prior to the Board of Rights hearing. (AR 817-828, 860-861.)

On January 27, 2021, Petitioner filed his petition for writ of administrative mandate.

On November 14, 2022, Petitioner filed his opening brief in support of the petition. The court has received Respondents’ opposition, Petitioner’s reply, the administrative record, and the joint appendix.

Under CCP section 1094.5(b), the pertinent issues are whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the agency has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (CCP § 1094.5(b).)

Because the termination of Petitioner from his position as LAPD police officer concerns a fundamental vested right, the court exercise its independent judgment on the administrative findings. (See Wences v. City of Los Angeles (2009) 177 Cal.App.4th 305, 314; Bixby v. Pierno (1971) 4 Cal. 3d 130, 143.) 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.” (Bixby, supra, 4 Cal. 3d 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.)

An agency is presumed to have regularly performed its official duties. (Evid. Code § 664.) “In 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 v. City of Angels (1999) 20 Cal. 4th 805, 817.) A reviewing court “will not act as counsel for either party to an appeal and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742.) When an appellant challenges “’the sufficiency of the evidence, all material evidence on the point must be set forth and not merely [his] own evidence.” (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.)

“On questions of law arising in mandate proceedings, [the court] exercise[s] independent judgment.’” (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.) “A challenge to the procedural fairness of the administrative hearing is reviewed de novo on appeal because the ultimate determination of procedural fairness amounts to a question of law.” (Nasha L.L.C. v. City of Los Angeles (2004) 125 Cal.App.4th 470, 482.) The interpretation of statute or regulation is a question of law. (See State Farm Mut. Auto. Ins. Co. v. Quackenbush (1999) 77 Cal.App.4th 65, 77.)

Petitioner contends that the weight of the evidence does not support the Board’s findings for Count 3 because: (1) Board’s findings of not guilty for Counts 1 and 2 “precluded” a finding of guilt for Count 3; (2) Petitioner was never provided explicit limitations of activity regarding his medical claim for lower back injury and inability to work; and (3) even though Petitioner reported extreme pain and that he was “unable to do anything,” it was LAPD that refused to provide light duty accommodations to permit him to return to work. (Opening Brief (“OB”) 6-10; Reply 2-5.)

Board’s Findings for Counts 1 and 2 Did Not Preclude a Finding of Guilt for Count 3

LAPD alleged that between April 18, 2016, and December 10, 2016, Petitioner collected worker’s compensation benefits he was not entitled to (Count 1), and failed to disclose pertinent information to Dr. Berkley regarding his physical abilities resulting in a continuation of IOD benefits (Count 2). For Count 1, Board noted that it was undisputed that Petitioner was injured on duty such that he would be entitled to some worker’s compensation benefits. Board opined that Count 1 “was framed asking the Board to interpret this allegation as potential abuse of benefits,” which was an issue “best addressed in Count 3.” For Count 2, Board stated that “[a]lthough it was evident that Officer Gordon misled Doctor Berkley regarding his level of pain, it was unclear to the Board what exactly the pertinent information the allegation refers to.” Board also stated that Petitioner’s deception to Dr. Berkley was more appropriately dealt with in Count 3. (AR 818-819.)

In concluding that LAPD did not prove Counts 1 and 2, Board did not make any express factual findings inconsistent with its findings of guilt for Count 3. Board largely found for Petitioner on Counts 1 and 2 based on the manner the counts were pleaded, not based on any express fact findings concerning Petitioner’s conduct. Further, Board’s findings for Counts 1 and 2 are not inherently inconsistent with its findings for Count 3. A person may engage in activities inconsistent with his or her medical claim but nonetheless be entitled to worker’s compensation benefits. Board could reasonably conclude, as it did, that Petitioner’s alleged deceitfulness would be better addressed in Count 3, which was pleaded more narrowly and did not require a legal determination regarding his entitlement to worker’s compensation benefits. Similarly, since Count 2 was essentially a claim for fraud, but did not allege what specific information Petitioner failed to disclose to Dr. Berkley, Board could reasonably conclude that LAPD did not prove the charge and that Petitioner’s alleged deceitfulness was more appropriately addressed in Count 3.

Exercising its independent judgment on the record, the court concludes that Board’s findings for Counts 1 and 2 were not determinative of Count 3 and did not preclude a finding of guilt for Count 3.

While Petitioner also refers to the non-guilty finding for Count 4 in the title to section IV.A, he develops no argument that Board’s findings for Count 4 precluded a finding of guilt for Count 3. (OB 6-7; Reply 2-3.) In any event, the court’s analysis for Count 4 is the same. Board denied the count due to a “lack of clarity regarding the true weight versus expended exertion.” It made no fact finding that precluded a finding of guilt for Count 3. (AR 821-822.)

Dr. Berkley Provided General Limitations of Activity Regarding Petitioner’s Medical Claim for Lower Back Injury and Inability to Work

Petitioner contends that he “was never advised or informed of what limitations were placed and what activities he was restricted from performing.” (OB 7.) Contrary to Petitioner’s assertion, Board’s findings for Count 3 were not based on Petitioner engaging in conduct outside the scope of specific terms of limitations on activity imposed by Dr. Berkley or other medical providers, as discussed further below. (OB 8:10-14.) Nonetheless, whether Dr. Berkley or other physicians imposed limitations of activity has some relevance to the allegation that Petitioner engaged in activities inconsistent with his medical claim while on IOD-TTD status between April 18, 2016 and December 10, 2016.

While Petitioner states that no “express limitations” were imposed, he also acknowledges that he was informed that it was “Okay to do treadmill and light weights in the gym.” (OB 8, citing AR 34-35, 485.) Throughout his TTD status, Petitioner was permitted to do "treadmill and light weights in the gym". (AR 465; 485; 886-894; 921-929; 287-293) At the administrative hearing, Petitioner admitted he was told throughout his medical claim and treatment with Dr. Berkley through December 2016 that he was told to do only “light weights” and to “be careful.” (AR 485.) Inherent is such instruction was a limitation placed on Petitioner’s activities – he could only do light weights and could not engage in strenuous or heavy lifting of weights at the gym or in other daily activities.

Furthermore, Dr. Berkley testified that, during Petitioner’s treatment with him, he included no bending and no twisting as restrictions to eliminate any aggravation to Petitioner’s back. (AR 287-288.) Dr. Berkley testified that he specifically told Petitioner to avoid squatting and heavy lifting, and to “just do light resistance training.” (AR 291, 293.) In his writ briefs, Petitioner has not challenged Dr. Berkley’s recollection of what he told Petitioner in this doctor’s visits about the types of gym activities that were permissible. (See Reply 4:3-24, citing AR 273-352 [Dr. Berkley’s testimony].) Nor does Petitioner cite any of his own testimony to show that Dr. Berkley did not instruct him not to perform bending activities; squatting; or heavy lifting. Thus, while Dr. Berkley did not state specific weight limitations, he did impose general restrictions on Petitioner’s physical activities during the relevant time period that Petitioner was on IOD-TTD status through December 2016.

With this context in mind, the court next considers whether the weight of the evidence supports Board’s main finding that Petitioner engaged in activities between April 18, 2016, and December 10, 2016, that were inconsistent with his medical claim, as presented to Dr. Berkley.

Petitioner Engaged in Physical Activities Inconsistent with his Medical Claim Presented to Dr. Berkley Between April 18, 2016, and December 10, 2016

In finding Petitioner guilty of Count 3, Board reasoned as follows: “[I]t was very evident to the Board that although he reported a consistent high level of pain, Officer Gordon was able to perform daily functions and conduct a physical fitness regime, including weight training…. Officer Gordon reported to his treating doctor that he consistently was in a high level of pain and, quote, ‘couldn’t do anything.’ Yet, he stopped taking his prescribed pain medication. Additionally, as his treating physician determined his next step in treatment would be a consultation with a surgeon, Officer Gordon refused…. The Board believes that if Officer Gordon was truly suffering in the amount of pain that he indicated he was in, he would have availed himself with the pain medication and discussed surgery as the next option was his doctor recommended. When Doctor Berkley was asked if Officer Gordon was deceptive to him, Doctor Berkley stated he was. It was clear to the Board that the doctor was disturbed by this deception and the Board found this to be compelling testimony…. The video evidence as well as the SOD accounting of Officer Gordon’s … ‘activities of daily living’ … support the Board’s finding that Gordon did, in fact, engage in activities inconsistent with his medical claim.” (AR 820-821.)

Exercising its independent judgment on the record, the court concludes that the weight of the evidence supports these findings. During the relevant period of April 18, 2016, to December 10, 2016, Petitioner regularly told Dr. Berkley that he still “could not do anything” work-related and reported severe pain in his lower back. (AR 107, 304.) The following timeline shows that Petitioner made such statements to Dr. Berkley during the entire time period at issue. In April 2016, Petitioner was scheduled to return to work but complained to Dr. Berkley of a flare up of pain. Dr. Berkley put Petitioner on TTD status again. (AR 89, 96.) On June 21, 2016, during a regular follow-up visit, Dr. Berkley recommended Petitioner received injections and possibly surgery. (AR 296, 298.) He placed Petitioner on TTD for four weeks. (Ibid.) Petitioner complained of continued pain at this visit. (AR 297.) On July 25, 2016, Petitioner reported that he could not sit for longer than 15 minutes and that “lifting where he had to lean over or bend forward was very difficult for him for his back pain.” (AR 302-303.) Petitioner told Dr. Berkley that he still “could not do anything” work-related. (AR 107, 304.) On August 15, 2016, Petitioner told Dr. Berkley that his pain was nine out of ten and was getting worse and that he “could not do anything”. (AR 122-123, 307, 308.) On September 26, 2016, Petitioner again told Dr. Berkley that he could not do anything and he was in too much pain to work. (AR 124.) On October 20, 2016, Petitioner visited Dr. Berkley and told him that his back pain was worse; that just two days ago, he could barely walk; that his pain was eight out of ten; that there is “no way he could possibly work”; and he “can barely do anything.” (AR 130-131, 323-331.) Petitioner added that he couldn’t shop for groceries and stayed home all day and did not do much at all. (AR 131.)

Despite his representations of severe pain and that he could “barely do anything,” Petitioner was observed by SOD performing regular weight workouts and other physical activities that were inconsistent with his medical claim of severe lower back pain. Significantly to the court, Petitioner engaged in such activities shortly after complaining to Dr. Berkley of severe pain in his lower back and of being unable to do anything. Thus, as examples, on July 12, 2016, Petitioner was observed by SOD completing one dead lift at the gym of a large amount of weight. Surveillance video shows that there were multiple large weights on each side of the barbell. The deadlift required Petitioner to bend over holding substantial weight. The video shows that Petitioner performed the deadlift comfortably and without any visible signs of pain. (AR 98, 101, 1025-26; see LAPD Video Disc No. 3, 7/12/16, WC 16, Recording No. 4 at 1:16-2:27 minutes.) Petitioner was on TTD during this period, having complained to Dr. Berkley of severe lower back pain at his last doctor’s visit. (AR 297.) On August 31, 2016, shortly after he told Dr. Berkley that his pain was nine out of ten and was getting worse and that he “could not do anything” (AR 122-123, 307, 308), Petitioner was observed running errands which included unloading a large living room chair himself from his vehicle. He also completed a workout later that day. The video shows that Petitioner lifted and carried this chair comfortably and without any visible signs of pain. (AR 112-113; AR 1047-1050; LAPD Video Disc 8, 08/31/16, WC 16, 00000.) On December 10, 2016, Petitioner competed in his second bodybuilding competition. SOD observed Petitioner warming up for this competition, including with “bent over lat rows,” without any obvious signs of pain or discomfort. (AR 134, 136, 1096-99.) Petitioner trained for this competition during the period of April 18, 2016, to December 10, 2016.[1]

These and other activities observed by SOD are inherently inconsistent with Petitioner’s claim to Dr. Berkley of back pain of 8 or 9 out of 10, and that he could “barely do anything.” Petitioner has not cited, and the court has not found, any evidence that Petitioner ever told Dr. Berkley during the period of April 18, 2016, to December 10, 2016, that his lower back paid had reduced; that he was able to perform a deadlift of substantial weight or other heavy lifting; that he was training for a body building competition; or that he was able to engage in physical activities involving his lower back without pain or discomfort. Based on the court’s review of the videos, the SOD surveillance report, and record testimony, the court concludes that the weight of the evidence supports Board’s finding that Petitioner engaged in activities that were inconsistent with his medical claim of severe lower back pain.

The court has considered all of Petitioner’s arguments and record citations, and none convince the court to reach a different conclusion. Petitioner tersely states that “[i]t is … unclear what ‘medical claim’ is as referred in the allegations of Count 3.” (OB 7:17-18.) Petitioner does not elaborate or cite any legal authorities on point that would suggest the count was defectively pleaded by LAPD. The court considers the argument waived. (Nelson v. Avondale HOA (2009) 172 Cal.App.4th 857, 862-863 [argument waived if not raised or adequately briefed]; Pfeifer v. Countrywide Home Loans, Inc. (2012) 211 Cal.App.4th 1250, 1282 [same].) Even if not waived, the argument is unconvincing. The record abundantly shows that Petitioner made a medical claim for severe lower back pain and being unable to perform any work-related duties as a result of such pain. Petitioner does not show any misunderstanding by Board or his legal representative concerning the nature of his medical claim.

Petitioner cites to testimony of Dr. Berkley, himself, and Petitioner’s expert Robert Strom that a restriction of “light weight” only is subjective and depends on the fitness level of the injured employee. Petitioner cites evidence that he has substantial muscle mass and “light weight” to him is different for the average person. (OB 7-8, citing AR 463, 574, 552-553, 481-482, 761-763; Reply 3-5, citing AR 292-293, 351-352.) Relatedly, Petitioner testified that, as a professional athlete, he learned how to be “as careful as possible” in working out and that he believed he worked out consistent with the restriction of no heavy lifting. (AR 481-485, 492, 573, 552-553.) Expert Strom also testified that a person’s “ability to endure a level of pain” is relevant to any assessment of an appropriate rehabilitation plan. (AR 718-719.) The court has considered this testimony and does not find it convincing given the record evidence discussed above. Video evidence supports a conclusion that, even for a fit individual with large muscle mass, Petitioner did lift heavy weights on occasion and performed other activities that were inconsistent with his medical claim of severe pain in his lower back, including carrying a living room chair from his vehicle. While the videos suggest that Petitioner was experienced in weightlifting and used “good form,” the videos of Petitioner working out various muscles, including in his back; carrying a large chair; and other activities are strikingly at odds with Petitioner’s representations to Dr. Berkley of back pain of “9 out of 10” or that he could not perform any work. Furthermore, while Petitioner testified that he did not work out his lower back during the relevant time period (AR 552), video and SOD evidence shows that he performed a deadlift and also “bent over lat rows,” which required a bending motion and would necessarily impact Petitioner’s lower back, during the relevant time period.

Petitioner admits that he told Dr. Berkley that he was “unable to do anything,” but contends that “this was pertaining to his work requirements and the painful experience during his prior ‘light duty.’" (OB 9, citing AR 513, 579-580.) Petitioner argues that “any statements that Petitioner ‘could not do anything’, [were] only based on the Department' inability to accommodate” Petitioner’s request for light duty work that did not involve “sitting at his desk wearing his vest and belt.” (OB 9-10, citing AR 295, 513-522, 580-581, 73-74.) Relatedly, Petitioner testified that his lower back pain was most severe in the morning hours, and that he worked out and did other activities later in the day. (See e.g. AR 515-517, 465.)

When the full record is considered, these arguments and record citations are not persuasive. Medical notes and testimony of Dr. Berkley and Sergeant Archuleta, who investigated the personnel complaint, do not support Petitioner’s contention that his statements that he was “unable to do anything” were always limited to any specific work-related duties or sitting for long periods. Thus, as an example, on October 20, 2016, Petitioner told Dr. Berkley that his back pain was worse; that just two days ago, he could barely walk; that his pain was eight out of ten; that there is “no way he could possibly work”; and he “can barely do anything.” (AR 130-131, 323-331.) Petitioner added that he couldn’t shop for groceries and stayed home all day and did not do much at all. (AR 131.) Some of Petitioner’s statements to Dr. Berkley about his pain were general in nature and not limited to a specific work duty. While Petitioner sometimes did attribute pain to light duty work that involved lots of sitting or wearing a “Sam Browne” belt (see e.g. AR 578-581), Petitioner also said he was in severe pain and could not do “anything.” Petitioner also did not tell Dr. Berkley that he was training for a bodybuilding competition, could perform a deadlift of substantial weight, or could perform similar activities with apparent ease. The evidence supports that Petitioner’s medical claim was not limited to any specific light duty work. It was reasonable for Board to conclude, as it did, that Petitioner acted inconsistently with his medical claim to Dr. Berkley of severe lower back pain.

The court also notes that the primary legal issue for this writ petition is not whether LAPD appropriately accommodated Petitioner’s work-related injury or provided sufficient light duty work. Petitioner was not precluded from raising issues of accommodation in the appropriate legal forum. Petitioner’s arguments and record citations about his light duty accommodations do not detract from Board’s findings, as analyzed above.

Finally, Petitioner briefly discusses Board’s finding that his decisions not to take pain medication or meet with a surgeon were consistent with a conclusion that Petitioner was not in the amount of pain he indicated to Dr. Berkley. (AR 820-821.) Petitioner does not show a prejudicial abuse of discretion. (CCP §1094.5(b).) Petitioner contends, without record citation, that he testified he stopped taking pain medication “because of the issues that it would cause to his kidneys.” (OB 9:1-2 [no citation to Petitioner’s testimony].) Since no record citation is provided, Petitioner’s contention is unpersuasive. In any event, the evidence supports Board’s finding that Petitioner did not take pain medication recommended by his physician, which is inconsistent with his medical claim of severe back pain. (AR 324.) Petitioner also suggests that he did not proceed with surgery “because his benefits and treatment were denied.” (OB 9:5-12, citing AR 49-50, 323-323, 348.) The record citations do not support Petitioner’s contention. Consistent with Board’s findings, Dr. Berkley testified that he believed that Petitioner did follow his recommendation to discuss surgery with a surgeon and that Petitioner did not want surgery. (AR 307, 348-349.)

Based on the foregoing, the weight of the evidence supports all of Board’s findings for Count 3.

The Board Did Not Prejudicially Abuse its Discretion in Finding Petitioner Guilty of Count 5

Petitioner contends that the Board erred by finding him guilty of Count 5 because the worker’s compensation charge was dismissed pursuant to Penal Code section 1203.4(a). (OB 10-12.)

Petitioner raises an issue of statutory construction. “The rules governing statutory construction are well settled. We begin with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent. [Citations.] To determine legislative intent, we turn first to the words of the statute, giving them their usual and ordinary meaning. [Citations.] When the language of a statute is clear, we need go no further. However, when the language is susceptible of more than one reasonable interpretation, we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part.” (Nolan v. City of Anaheim (2004) 33 Cal.4th 335, 340.) “A more specific statute controls over a more general one.” (Lake v. Reed (1997) 16 Cal.4th 448, 464.)

Section 1203.4 states, in pertinent part, as follows: “When a defendant has fulfilled the conditions of probation for the entire period of probation … or in any other case in which a court, in its discretion and the interest of justice, determines that a defendant should be granted the relief available under this section, the defendant shall, at any time after the termination of the period of probation … be permitted by the court to withdraw their plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if they have been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, the defendant shall thereafter be released from all penalties and disabilities resulting from the offense of which they have been convicted, except as provided in Section 13555 of the Vehicle Code.”

In addition to the exception in section 13555 in the Vehicle Code, section 1203.4 also provides the following specific exceptions: “[I]n any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed. The order shall state, and the probationer shall be informed, that the order does not relieve them of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery Commission…. (2) Dismissal of an accusation or information pursuant to this section does not permit a person to own, possess, or have custody or control of a firearm or to prevent conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6. (3) Dismissal of an accusation or information underlying a conviction pursuant to this section does not permit a person prohibited from holding public office as a result of that conviction to hold public office. (4) Dismissal of an accusation or information pursuant to this section does not release the defendant from the terms and conditions of an unexpired criminal protective order that has been issued by the court pursuant to paragraph (1) of subdivision (i) of Section 136.2, subdivision (j) of Section 273.5, subdivision (l) of Section 368, or subdivision (k) of Section 646.9….”

Petitioner contends that he “should not have to face and be forced to endure the ‘penalty’ of accepting a guilty finding at a subsequent Board of Rights hearing.” (OB 12.) Petitioner points out that none of the express exceptions in section 1203.4 authorize an administrative body to rely on a conviction that was dismissed pursuant to section 1203.4. However, as Respondent points out, section 1203.4 “does not say anything about employers not being able to act upon any expunged conviction.” (Oppo. 12.) Further, Respondent contends that “the restrictions involving consideration of an expunged conviction in the context of employment settings are listed in the Labor Code Section 432.7,” which expressly does not apply to police officers. (Oppo. 12.)

Labor Code section 432.7(a) states, in pertinent part, that “[a]n employer also shall not seek from any source whatsoever, or utilize, as a factor in determining any condition of employment including … termination … any record … concerning a conviction that has been judicially dismissed … pursuant to law, including, but not limited to, Sections 1203.4, 1203.4a, 1203.425, 1203.45, and 1210.1 of the Penal Code.” Section 432.7(e) states that “[p]ersons seeking employment or persons already employed as peace officers, or persons seeking employment in positions in the Department of Justice or other criminal justice agencies as defined in Section 13101 of the Penal Code are not covered by this section.”

Because Labor Code section 432.7(a) expressly addresses the use of dismissed convictions in the context of a termination from employment, there is a reasonable inference that the legislature did not intend for section 1203.4 to address that issue. Sections 1203.4 and 432.7(a) address the same subject matter and should be harmonized to the extent possible. “‘A court must, where reasonably possible, harmonize statutes, reconcile seeming inconsistencies in them, and construe them to give force and effect to all of their provisions. [Citations.] This rule applies although one of the statutes involved deals generally with a subject and another relates specifically to particular aspects of the subject.’ [Citation.] Thus, when ‘ “two codes are to be construed, they ‘must be regarded as blending into each other and forming a single statute.’ [Citation.] Accordingly, they ‘must be read together and so construed as to give effect, when possible, to all the provisions thereof.’ [Citation.]” ' [Citation.] Further, ‘ “ ‘[a]ll presumptions are against a repeal by implication.” ’ ” (State Dept. of Public Health v. Sup.Ct. (2015) 60 Cal.4th 940, 955-956.)

If Petitioner’s interpretation of section 1203.4 were correct, the statutory language in section 432.7(a) prohibiting employers from using dismissed convictions in a termination decision would be surplusage. Section 1203.4 would in itself already bar such conduct by an employer. “[I]nterpretations which render any part of a statute superfluous are to be avoided.” (Young v. McCoy (2007) 147 Cal.App.4th 1078, 1083.)

Further, Petitioner’s interpretation would also make section 432.7(e) a nullity. If section 1203.4 prohibits LAPD from considering a dismissed conviction in employment decisions, then the exemption in section 432.7(e) for police officers has no practical legal effect. “When interpreting statutory language, we may neither insert language which has been omitted nor ignore language which has been inserted.” (See People v. National Auto. and Cas. Ins. Co. (2002) 98 Cal.App.4th 277, 282.)

Neither Petitioner nor Respondent cites a case that had has addressed this specific issue, or that has interpreted the “penalties and disabilities” language of section 1203.4 in the context of an administrative action. Published decisions interpreting section 1203.4 stress that “a dismissal under section 1203.4, while sometimes inaccurately described as an ‘expungement,’ is in no way equivalent to a finding of factual innocence.” (Skulason v. California Bureau of Real Estate (2017) 14 Cal.App.5th 562, 568.) “The statute does not purport to render the conviction a legal nullity. Instead it provides that, except as elsewhere stated, the defendant is ‘released from all penalties and disabilities resulting from the offense.’” (Ibid.) “However, the ‘release[ ] from penalties and disabilities’ is a palpable benefit, such that the conviction may be treated as if it were not a conviction for most purposes.” (People v. Guillen (2013) 218 Cal.App.4th 975, 996.)

Exercising its independent judgment on the question of law, the court concludes that section 1203.4 did not bar Board from finding Petitioner guilty of Count 5. Section 1203.4 does not state that an employer cannot consider a conviction dismissed under section 1203.4 for employment decisions, and section 432.7 suggests that the Legislature did not intend to prohibit law enforcement agencies from considering dismissed convictions in employment decisions related to police officers.

Even if Petitioner’s interpretation of section 1203.4 were correct, Petitioner could only show a prejudicial abuse of discretion, requiring remand, if Board relied on the dismissed conviction in the penalty determination. (See CCP § 1094.5(b); Thornbrough v. Western Placer Unified School Dist. (2013) 223 Cal.App.4th 169, 200 [in administrative writ proceeding, an “[e]rror of law is not reversible unless, on an examination of the record, it appears to have resulted in a miscarriage of justice.”].) In its penalty rationale, Board stated that it did not consider Count 5 because the conviction was expunged prior to the Board of Rights hearing. (AR 817-828, 860-861.) For reasons discussed below, the court credits that statement.

Based on the foregoing, the weight of the evidence supports Board’s findings for Count 5. It is undisputed that Petitioner was convicted of worker’s compensation fraud on July 2, 2019. (AR 827, AR 1212-14.) The court addresses Petitioner’s arguments concerning the penalty infra, including whether, despite its statement to the contrary, Board considered Count 5 in its penalty determination.

“The propriety of a penalty imposed by an administrative agency is a matter vested in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion.” (Williamson v. Board of Medical Quality Assurance (1990) 217 Cal.App.3d 1343, 1347.) “If reasonable minds may differ with regard to the appropriate disciplinary action, there is no abuse of discretion.” (County of Los Angeles v. Civil Service Commission (1995) 39 Cal.App.4th 620, 634.)

In considering whether an abuse of discretion occurred, the “overriding consideration … is the extent to which the employee’s conduct resulted in, or if repeated is likely to result in, ‘[h]arm to the public service.’ [Citations.] Other relevant factors include the circumstances surrounding the misconduct and the likelihood of its recurrence.” (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 218.)

Petitioner develops no argument that the penalty of discharge was a manifest abuse of discretion based on Board’s findings of guilt for Count 3. (See OB 13-15; Reply 7-9.) Board found, in effect, that Petitioner engaged in deceitful conduct by claiming that he could not work at all due to severe lower back pain and engaging in activities inconsistent with such claim. (AR 820-821.) “[A peace officer’s] job is a position of trust and the public has a right to the highest standard of behavior from those they invest with the power and authority of a law enforcement officer. Honesty, credibility and temperament are crucial to the proper performance of an officer's duties.” (Talmo v. Civil Service Com. (1991) 231 Cal.App.3d 210, 231.) Given the element of deceitfulness in Count 3, Board could reasonably find that discharge was the appropriate penalty. Furthermore, as discussed below, Board could also reasonably consider in its penalty determination, in conjunction with other factors, that Petitioner could be subject to disclosure pursuant to Brady v. Maryland (1963) 373 U.S. 83 as a result of his worker’s compensation fraud conviction.

Petitioner contends that Board abused its discretion, and deprived him a fair hearing, when it stated that “the Board has significant concerns about the ability of Gordon to work as a police officer due to the nature of him being convicted of an integrity-based charge at a Board of Rights hearing. This would adversely impact his ability to complete a police report or testify in court." (OB 13, citing AR 861.) Petitioner believes that Board’s consideration of this factor, for the penalty, contradicts its statement that it did not consider Count 5 because the conviction was expunged prior to the Board of Rights hearing. (AR 817-828, 860-861.) The court disagrees and finds no abuse of discretion or denial of Petitioner’s right to a fair hearing. As discussed below, in selecting the appropriate penalty, Board was permitted to consider that Petitioner was placed on a Brady list or subject to disclosure pursuant Brady v. Maryland (1963) 373 U.S. 83 as a result of his conviction for worker’s compensation fraud. (Gov. Code § 3305.5(d).) Board stated that it did not consider Petitioner’s guilt for Count 5 in the penalty but did consider the risk that he would not be able to complete a police report or testify in court. There is no contradiction in this statement. Further, there is a presumption that Board did what it said. (Evid. Code § 664.) Petitioner does not show that Board considered his guilt for Count 5, independent from the Brady issue, in selecting the penalty.

Petitioner does not seriously dispute that Board could consider, in selecting a penalty, evidence that Petitioner was placed on a Bradly list or subject to disclosure as a result of the worker’s compensation fraud conviction. (OB 14-15.) Indeed, Government Code section 3305.5(d) states:

Evidence that a public safety officer's name was placed on a Brady list may only be introduced if, during the administrative appeal of a punitive action against an officer, the underlying act or omission for which that officer's name was placed on a Brady list is proven and the officer is found to be subject to some form of punitive action. If the hearing officer or other administrative appeal tribunal finds or determines that a public safety officer has committed the underlying acts or omissions that will result in a punitive action, denial of a promotion on grounds other than merit, or any other adverse personnel action, and evidence exists that a public safety officer's name has been placed on a Brady list, or may otherwise be subject to disclosure pursuant to Brady v. Maryland (1963) 373 U.S. 83, then the evidence shall be introduced for the sole purpose of determining the type or level of punitive action to be imposed.

Here, the requirements of section 3305.5(d) are met. It was proven and Board found that Petitioner was convicted of worker’s compensation fraud, a crime of moral turpitude. (AR 851-852, AR 1212-14.) Board also found Petitioner guilty of Count 3, as discussed above. Board found that Petitioner is subject to some form of punitive action based on the guilty finding for Count 3. Lieutenant Brian O'Connor from Legal Affairs Division, who is responsible for evaluating officers’ personnel records and recent discipline, testified that a Brady letter was served on Petitioner and also that Petitioner’s name could be placed on a Brady list or subject to disclosure pursuant to Brady v. Maryland (1963) 373 U.S. 83 as a result of the worker’s compensation fraud conviction. (AR 846-852.) Contrary to Petitioner’s assertion, Lieutenant O’Connor’s testimony was sufficient prima facie evidence that Petitioner’s “name has been placed on a Brady list, or may otherwise be subject to disclosure pursuant to Brady v. Maryland (1963) 373 U.S. 83.” (§ 3305.5(d); see also AR 846-852 and OB 14-15; Reply 8-9.) Petitioner does not submit any opposing evidence that his name was not placed on a Brady list or he was not subject to disclosure pursuant to Brady v. Maryland (1963) 373 U.S. 83. Under the circumstances of this case, Board was expressly authorized by section 3305.5(d) to consider these Brady issues as part of its penalty determination.

The court notes that section 3305.5(a) states: “ A punitive action, or denial of promotion on grounds other than merit, shall not be undertaken by any public agency against any public safety officer solely because that officer's name has been placed on a Brady list, or that the officer's name may otherwise be subject to disclosure pursuant to Brady v. Maryland (1963) 373 U.S. 83.” (bold italics added.) Here, Board discharged Petitioner after he was found guilty of misconduct that involved deceitfulness. Board did not discharge Petitioner solely because his name was placed on a Brady list or may be subject to disclosure pursuant to Brady v. Maryland.

Based on the foregoing, Board did not prejudicially abuse its discretion in its determination of the penalty.

[1] In reply, Petitioner argues for the first time that this competition occurred on December 12, 2016, outside of the time period of April 16-December 10, 2016, at issue in Count 3. (Reply 5:5-10.) Petitioner does not provide any record citation in support. The weight of the evidence supports that at least part of the competition, in which Petitioner participated, occurred on December 10, 2016. (AR 134, 136, 1096-99.) In any event, even for a competition on December 12, Petitioner necessarily would have trained during the period of April 18, 2016, to December 10, 2016