Torabzadeh v. Rehabilitation Appeals Bd.

Filed 2/28/07 Torabzadeh v. Rehabilitation Appeals Bd. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Dzintra Janavs, Judge. Affirmed as modified.

Bill Lockyer, Attorney General, Thomas R. Yanger, Senior Assistant Attorney General, Richard T. Waldow and Gregory M. Cribbs, Deputy Attorneys General, for Defendant and Appellant.

Alex Boudov for Plaintiff and Respondent.

______________________________________________

Under federal and state regulations, a disabled person is eligible for vocational rehabilitation services if the individuals disability results in a substantial impediment to employment and vocational rehabilitation services are necessary to secure or retain employment. Seyed Torabzadeh is a quadriplegic. Nearly twenty years ago, he was granted vocational rehabilitation services that included modifications to a van (including a hand-control system and wheelchair lift) which enabled him to drive. He obtained employment and has thrived at work, in part because of his ability to independently drive. Now, his van needs to be replaced. In particular, the wheelchair lift mechanism in his van is no longer manufactured and replacement parts are no longer available. Torabzadeh sought financial assistance with obtaining a new modified van as a vocational rehabilitation service. The California Department of Rehabilitation (the Department) denied him rehabilitation services on the basis that any substantial impediment to employment suffered by Torabzadeh was caused by the fact that his van was breaking down, not by his disability. Torabzadeh sought writ relief, which the trial court granted on the basis that the Departments interpretation of controlling regulations was too narrow. We modify the judgment and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Torabzadeh is a quadriplegic. In 1988, he received vocational rehabilitation services from the Department. Those services included a mobility and modification evaluation and mobility training. Specifically, the Department helped Torabzadeh obtain a specially modified van so that he could drive. The van, a 1987 Ford E-150, was modified by Driving Systems Incorporated to include a Scott Driving System, which includes hand controls and a wheelchair lift. Torabzadehs brother helped him purchase the van itself; the Department assisted him with the Scott Driving System.

In April 1988, Torabzadeh obtained full-time employment with the California Department of Transportation (Caltrans). He has worked there consistently, and holds the title of TASAS (Traffic Accident Surveillance and Analysis System) Coordinator for the Los Angeles District of Caltrans. Torabzadehs duties involve attending meetings in other Caltrans offices and districts, local government and regulatory agencies[] offices, going out to the field[], going to training sessions at various locations and other assigned trips. Attending these meetings, trainings, workshops and other sessions are essential parts of [his] job. It is very important for him to be able to get to these locations on time. Additionally, Torabzadeh does not work fixed hours, but sometimes must come into the office early or work late, requiring him to have an independent means of transportation.

By September 2003, Torabzadehs van, and the Scott Driving System in it, were falling apart. The van had approximately 150,000 miles on it. At one point, the master cylinder failed, causing brake failure, resulting in Torabzadeh running into a tree to stop the van. On another occasion, the ignition module failed, stalling his van in the middle of an intersection during rush hour traffic. A letter from Driving Systems Incorporated explained as follows: Even though the driving controls usually outlast the van, our records indicate that we have supplied a variety of parts to Mr. Torabzadeh over the years, especially wheelchair lift parts and brake system rebuild parts. The wheelchair lift, made by Ricon Corporation[,] has not [been] produced since 1990 and replacement parts are no longer available. Considering this van has this many miles and will soon be 16 years old, in all probab[ability] will be needing major engine work in the near future, it is our position that money spent on repairs would be wasted. Due to the vans repeated breakdowns, Torabzadeh was missing work. Torabzadeh could not use public transportation. His medical history gave him a high susceptibility to infection, and his physician concluded public transportation would pose a risk to his health.

On September 8, 2003, Torabzadeh filed an application with the Department, seeking help with accessible van for transportation to and from my work. The record is not entirely clear on whether Torabzadeh requested the Department to purchase a new van for him, or only to pay for the Scott Driving System as the Department had before. At one point, Torabzadeh apparently stated that he cannot afford to even consider a vehicle purchase, much less the sophisticated modifications that he will need in order to continue driving. Yet, later, Torabzadeh stated that he sought Department assist[ance] with the provision of a modified vehicle which he understands he may need to purchase. As we will discuss later, this is a key distinction, yet both parties overlook it.

Torabzadehs application was initially assigned to a case worker who intended to approve it, concluding that Torabzadehs quadriplegia caused him mobility issues which affected his ability to retain his employment. However, the case workers supervisor, Maria Sabado, reversed the determination. While Sabado conceded that Torabzadeh had a physical disability, she concluded that his disability provided no impediment to Torabzadehs employment. The Department closed Torabzadehs file on October 29, 2003. The Department explained, You have been working consistently on the current job that you have for many years, and are able to continue working without hindrance once you are at the office location. Therefore, since getting to and from work does not rise to the level of defining a vocational impediment, our agency services are not available to you since you do not qualify under our eligibility criteria.

Thereafter, Torabzadeh attempted to reopen his file by providing evidence that being able to drive was, in fact, an essential part of his job setting aside issues of commuting to and from work. Torabzadeh submitted a letter from the Chief of the Office of Traffic Investigations to that effect. Sabado was unpersuaded, concluding that field visits were not an essential part of Torabzadehs job. She relied on Torabzadehs official job description, which did not state the need to do field visits, and the fact that Torabzadeh could not provide travel claim forms indicating field visits.^[1]

Torabzadeh was invited to request review by the Departments District Administrator, Frank Velasco; he did so. Torabzadeh met with Velasco on April 8, 2004. In his follow-up letter the next day, Velasco informed Torabzadeh that, we need to show an impediment to employment. At this point, there is nothing in the case record, nor have you presented anything from any supervisor or manager to indicate that your job is currently in jeopardy. Your performance reports indicate that you are doing well, and during your time with [Caltrans] you have been promoted. [] The question still remains that you are not in jeopardy of losing your job because we have nothing to indicate that. District Administrator Velasco proposed a further conversation with Torabzadehs supervisors to really assess what imminent threats to your employment exist within [Caltrans]. The date of District Administrator Velascos letter is significant, as an applicable California regulation had recently been amended. California Code of Regulations, title 9, former section 7062 had provided that, when an applicant for vocational rehabilitation services was already employed, a substantial impediment would exist if [l]oss of employment is imminent because the impairment prevents or hinders the performance of essential functions of the job. That section was repealed and a new regulation inserted, which had no language requiring an imminent loss of employment, effective April 3, 2004. Given Velascos concern with imminent threats to Torabzadehs employment, it appears that he may have been applying a regulation that had been repealed.

In any event, scheduling difficulties prevented a live meeting with Torabzadehs supervisors. Torabzadehs immediate supervisor submitted a letter stating that Torabzadehs frequent absences adversely affected the operation of the unit and processing of highway accident data. Continued absences could lead to a change in [Torabzadehs] responsibilities and/or the duties of his current position. The Chief of the Office of Traffic Investigations had already submitted a letter stating that it is of utmost importance for [Torabzadeh] to have a safe, reliable and dependable transportation means so that he would be able to retain his current employment.

Torabzadehs submissions did not alter the Departments position, and Torabzadeh next sought a hearing before the Rehabilitation Appeals Board (the Board).^[2] The issue before the Board was whether the Department had acted in accordance with applicable law when it determined Torabzadeh was ineligible for vocational rehabilitation services and closed his case. Torabzadeh specifically argued that District Administrator Velasco had erroneously relied on a repealed regulation in concluding that an imminent loss of employment was necessary to establish a substantial impediment. The Department did not pursue the imminent loss argument before the Board, and instead simply argued that Torabzadehs disability did not cause a substantial impediment to his employment because a substantial impediment must be based on the essential functions of the job, not getting to and from work. Torabzadeh argued that if he could not get to work, he could not perform any functions of his job. He further argued that, due to his disability, a hand-controlled vehicle was the only way he could get to work.

The Board issued its decision, ruling against Torabzadeh, on September 10, 2004. The Board concluded: [T]he proper test is whether the applicants disability hinders his ability to retain his job, not whether the applicant is in imminent danger of losing his job.  [] The Board also finds that to determine eligibility of an employed applicant[,] the Department must distinguish between the effects of an applicants deteriorating mode of transportation and the status of an applicants disability. Only by doing so can the Department determine if there is a substantial impediment to employment (i.e., retention of employment is hindered by the applicants disability). [] In the instant matter, the Board finds that the evidence presented by [Torabzadeh] was related to the condition of his van, not his disability. While he referred to potential medical problems were he required to take public transportation, he provided no evidence that some facet of his disability is presently hindering his ability to retain his job. Hence, [Torabzadeh] is not eligible.

Additionally, the Board relied on an alternative theory which had never been raised by either of the parties. The Board noted that federal regulations mandate that transportation be provided only in conjunction with other vocational rehabilitation services provided pursuant to participation in an approved plan for vocational rehabilitation services. As Torabzadeh sought only a modified van and no other services, the Board concluded that he was not eligible for transportation under these regulations.

Torabzadeh challenged the decision by petition for writ of administrative mandate. Specifically, he argued that there was no law supporting the Departments position that the existence of a substantial impediment to employment is to be determined without regard to whether the applicant can get to and from work. The Department responded, arguing both that there was no evidence that Torabzadehs quadriplegia presented a substantial impediment to his employment and that Torabzadeh could not be granted transportation services as he did not seek them in accordance with any other rehabilitation services.^[3] The trial court granted Torabzadehs petition, holding that the Department had abused its discretion in concluding Torabzadehs disability did not cause a substantial impediment to his continued employment. First, the court concluded the Boards finding that Torabzadehs evidence related solely to the condition of his van, not his disability, was not supported by the evidence. Next, the court concluded that applicable regulations did not support the distinction drawn by the Department between performing ones job and getting to it. Finally, the court noted that the Department had clearly believed Torabzadehs disability caused a substantial impediment to his employment when it had provided him a hand-controlled van in 1987, and that nothing about Torabzadehs disability had changed since that time. The court issued a writ directing the Department to set aside its decision denying services to Torabzadeh and to enter a new decision consistent with the courts decision. The Department filed a timely notice of appeal.

CONTENTIONS OF THE PARTIES

On appeal, the Department contends the trial court erred in granting the petition for writ of mandate. The Department argues that sufficient evidence supported its conclusion that Torabzadehs disability did not create a substantial impediment to his employment.^[4] The Department also argues that even if Torabzadeh were entitled to vocational rehabilitation services, he could not be provided with a hand-controlled van because transportation services cannot be granted in the absence of other services. We first address the Departments latter contention, as our rejection of that argument informs our resolution of the former issue.

DISCUSSION

1. Standard of Review

Code of Civil Procedure section 1094.5 sets forth the procedure for the review of a final administrative decision. The inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence. (Code Civ. Proc., 1094.5, subd. (b).) Where it is claimed that the findings are not supported by the evidence, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence. In all other cases, abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record. (Code Civ. Proc., 1094.5, subd. (c).)

If, in an administrative mandamus case, the underlying administrative decision substantially affects a fundamental vested right, the trial court, in determining under [Code of Civil Procedure] section 1094.5 whether there has been an abuse of discretion because the findings are not supported by the evidence, must exercise its independent judgment on the evidence and find an abuse of discretion if the findings are not supported by the weight of the evidence. (Jaramillo v. State Bd. for Geologists & Geophysicists (2006) 136 Cal.App.4th 880, 888.) If the administrative decision does not substantially affect a fundamental vested right, the trial court considers only whether the findings are supported by substantial evidence in the light of the whole record. (Id. at pp. 888‑889.) In this case, there is no suggestion that Torabzadeh had a fundamental vested right to the rehabilitation services he sought. Therefore, the trial court properly considered whether the Boards findings were supported by substantial evidence in light of the record.

On appeal, whichever standard was used below, the standard for review of the trial courts factual determinations is whether they are supported by substantial evidence. [Citations.] [A]n appellate court must uphold administrative findings unless the findings are so lacking in evidentiary support as to render them unreasonable. [Citations.] A reviewing court will not uphold a finding based on evidence which is inherently improbable [citation], or a finding based upon evidence which is irrelevant to the issues. [Citations.] [Citation.] The reviewing court, like the trial court, . . . may not reweigh the evidence, and is bound to consider the facts in the light most favorable to the Board, giving it every reasonable inference and resolving all conflicts in its favor. (Jaramillo v. State Bd. for Geologists & Geophysicists, supra, 136 Cal.App.4th at p. 889.)

On a petition for writ of administrative mandate, issues of law are for the courts to resolve de novo. However, this is subject to the well-established rule that the Departments interpretation of applicable regulations is entitled to respect, unless that interpretation is clearly erroneous. (Horwitz v. City of Los Angeles (2004) 124 Cal.App.4th 1344, 1354.)

2. Statutory and Regulatory Scheme

Pursuant to the Rehabilitation Act Amendments of 1998 (29 U.S.C.  701 et seq.), states may receive federal funding to provide vocational rehabilitation services. State participation is voluntary, but those states choosing to participate must comply with federal regulations. (Zingher v. Department of Aging and Disabilities (Vt. 1995) 664 A.2d 256, 259.) California has, by statute, accepted the provisions and benefits of the Rehabilitation Act Amendments of 1998. (Welf. & Inst. Code, 19011.)

According to federal regulations, a determination of an applicants eligibility for vocational rehabilitation services, must be based only on the following requirements: (i) A determination by qualified personnel that the applicant has a physical or mental impairment. (ii) A determination by qualified personnel that the applicants physical or mental impairment constitutes or results in a substantial impediment to employment for the applicant. (iii) A determination by a qualified vocational rehabilitation counselor employed by the designated State unit that the applicant requires vocational rehabilitation services to prepare for, secure, retain, or regain employment consistent with the applicants unique strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice. (34 C.F.R. 361.42(a)(1); see also Cal. Code Regs, tit. 9,  7062(a).)

The Department denied Torabzadehs application based on its conclusion that he could not establish the second element. Substantial impediment to employment is defined in the regulations to mean that a physical or mental impairment (in light of attendant medical, psychological, vocational, educational, communication, and other related factors) hinders an individual from preparing for, entering into, engaging in, or retaining employment consistent with the individuals abilities and capabilities. (34 C.F.R. 361.5(b)(52).)

If an individual is determined to be eligible for vocational rehabilitation services, the Department must ensure that certain types of services are available. These services include Rehabilitation technology in accordance with the definition of that term in [34 C.F.R.] 361.5(b)(45), including vehicular modification . . . . (34 C.F.R.  361.48(q).) The definitional regulation explains: Rehabilitation technology means the systematic application of technologies, engineering methodologies, or scientific principles to meet the needs of, and address the barriers confronted by, individuals with disabilities in areas that include education, rehabilitation, employment, transportation, independent living, and recreation. The term includes rehabilitation engineering, assistive technology devices, and assistive technology services. (34 C.F.R.  361.5(b)(45).)

In contrast, an individual eligible for vocational rehabilitation services is to be provided [t]ransportation in connection with the rendering of any vocational rehabilitation service and in accordance with the definition of that term in [34 C.F.R.]  361.5(b)(57). (34 C.F.R.  361.48(h).) The definitional regulation explains: Transportation means travel and related expenses that are necessary to enable an applicant or eligible individual to participate in a vocational rehabilitation service, including expenses for training in the use of public transportation vehicles and systems. (34 C.F.R. 361.5(b)(57).) The subdivision goes on to provide illustrative examples of expenses that meet the definition of transportation. The second such example states, The purchase and repair of vehicles, including vans, but not the modification of these vehicles, as modification would be considered a rehabilitation technology service. (34 C.F.R. 361.5(b)(57)(i).) California regulations are in accord, specifically providing that the modification of vehicles is considered a rehabilitation technology service and not transportation. (Cal. Code Regs., tit. 9, 7029(b)(5).)

3. An Eligible Applicant May Obtain a Modified Van Alone

As should be apparent from our discussions of the above regulations, the modification of a van is considered rehabilitation technology, which is itself a vocational rehabilitation service. While the provision of a van itself is considered transportation, which may only be provided in conjunction with other services, the modification of a van is specifically identified in the controlling regulations as a vocational rehabilitation service that may be provided to a qualified applicant.^[5]

Torabzadehs application for services sought help with accessible van. At one point, he stated that he sought assist[ance] with the provision of a modified vehicle which he understands he may need to purchase. While the record is not entirely clear on this point, it appears that Torabzadeh may have been requesting that the Department pay only for the necessary van modifications, not the van itself.^[6] Such a request is clearly within the scope of vocational rehabilitation services that may be provided, and the Departments assertion that Torabzadeh was inappropriately seeking transportation services is a clearly erroneous interpretation of the governing regulations.

4. Torabzadehs Disability Presented a Substantial Impediment
to Employment

We next consider the Departments conclusion that Torabzadehs disability did not constitute a substantial impediment to employment. This encompassed both a legal conclusion and an evidentiary one. It was undisputed that Torabzadehs modified van was failing. The Department concluded, however, that as a matter of law, a substantial impediment is only proven when the applicants disability not his means of transportation presently hinders his ability to retain his job. The Department also made the factual finding that Torabzadehs evidence related only to his van, not his disability.

We again turn to the governing regulations. A substantial impediment means that a physical or mental impairment (in light of attendant medical, psychological, vocational, educational, communication, and other related factors) hinders an individual from preparing for, entering into, engaging in, or retaining employment consistent with the individuals abilities and capabilities. In its written decision, the Board distilled from this regulation the test of whether the applicants disability hinders his ability to retain his job. But the language of the regulation is not limited to situations related to retaining employment; an individual can possess a substantial impediment to employment if his disability hinders him from preparing for or engaging in employment as well. To the extent the Department relied on the fact that Torabzadeh failed to show a present hindrance to his ability to retain his job, the Departments interpretation of the regulation was clearly erroneous. A present hindrance to his ability to engage in his job would be sufficient, under the clear language of the regulation.

Finally, we look at the evidence, to determine whether substantial evidence supports the Departments conclusion that Torabzadehs evidence related solely to the condition of his van, rather than his disability. Torabzadeh introduced undisputed evidence that he is a quadriplegic. Torabzadeh testified to the obvious fact that, being a quadriplegic, he cannot use unmodified cars. He introduced a letter from his doctor, which was also undisputed, to the effect that using public transportation would pose a risk to his health, based on his history of quadriplegia and susceptibility to infection. This evidence, all of which was undisputed,^[7]related to Torabzadehs disability.

Moreover, it is apparent from the condition of Torabzadehs modified van that it no longer provides a safe and reliable means for him to get to work. Without the modified van functioning on a regular basis, Torabzadeh is a man whose quadriplegia prevents him from getting to work and doing the field work that is part of his job. His disability prevents him from taking public transit. His disability prevents him from using the state vehicles Caltrans provides. We agree that employees are generally responsible for getting themselves to work when their cars fail, and that there is no legal basis to require the Department to provide a new car for an every disabled individual whose vehicle gets too old to be safely driven. But Torabzadeh is a quadriplegic, who, by the very nature of his disability, cannot simply drive another car or take public transit. Indeed, the governing regulations acknowledge this very distinction. Purchasing a vehicle is considered the provision of transportation, and is not a vocational rehabilitation service; but modifying a vehicle is a rehabilitation technology service that is a vocational rehabilitation service. It is Torabzadehs status as a disabled individual that prevents him from dealing with car trouble the way able-bodied individuals can, and it is his disability that is ultimately hindering his ability to engage in his job as his modified van fails. This constitutes substantial evidence that Torabzadehs disability presents a substantial impediment to his continued employment, and the Department therefore erred in concluding his evidence related only to the condition of his van.

The trial court correctly determined the Department erred, and directed the Department to enter a new decision consistent with the trial courts opinion. We note that the Department has never resolved the third issue necessary for eligibility whether Torabzadeh requires vocational rehabilitation services to prepare for, secure, retain, or regain employment consistent with his unique strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice. We also note that no determination has been made regarding the specific services with which Torabzadeh should be provided specifically, whether the modification of a second van is appropriate or if some other services would be more appropriate. We therefore conclude further proceedings are necessary at the Departmental level.

DISPOSITION

The trial court is directed to modify its judgment to direct the Department to conduct further proceedings consistent with this opinion. As so modified, the judgment is affirmed. Torabzadeh shall recover his costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CROSKEY, J.

We Concur:

KLEIN, P. J.

KITCHING, J.

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^[1] The Department also discovered that Caltrans had state vehicles available for employees in Torabzadehs job classification. The Department speculated that if, in fact, field visits were a necessary part of Torabzadehs job, Caltrans had the obligation to provide a reasonable accommodation of Torabzadehs disability under the Americans with Disabilities Act. The Department encouraged Torabzadeh to seek a reasonable accommodation from Caltrans.

^[2] Although District Administrator Velasco had proposed further discussions, his letter informed Torabzadeh of his right to seek a hearing before the Board. On the Departments advice, Torabzadeh proceeded with his application for a hearing without waiting for a final denial from the Department.

^[3] Once it is determined that an applicant is disabled and that the disability creates a substantial impediment to employment, a third factor must be considered, specifically, whether the applicant requires vocational rehabilitation services to secure or retain employment. (34 C.F.R. 361.42(a)(1)(iii).) The Department also argued that this element could not be established by Torabzadeh even though the Department had never reached this element when it denied Torabzadehs claim. The Department reasoned that since transportation services standing alone do not constitute vocational rehabilitation services, the services that Torabzadeh claimed were necessary to retain his employment were not vocational rehabilitation services.

^[4] The Department also argues that Torabzadeh did not require vocational rehabilitation services to retain his employment. Again, we note that this was never a basis for the Departments decision.

^[5] Indeed, as Torabzadehs brother helped him purchase his first van while the Department paid for the Scott Driving System, it appears that the Department effectively recognized this distinction when it first assisted Torabzadeh.

^[6] In any event, even if Torabzadeh also sought financial assistance for the purchase of a van, and it is subsequently determined that he is not entitled to such assistance, that would provide no basis for denying Torabzadeh the assistance to which he is entitled. The eligibility of an applicant for vocational rehabilitation services is not affected by whether the applicant overreached in his request.

^[7] The Departments response to Torabzadehs doctors conclusion was simply that this evidence was irrelevant, as the only issue was whether Torabzadeh could do his job once he got there.