Gury v. San Bernardino Employee Retirement Assn.

Filed 7/19/07 Gury v. San Bernardino Employee Retirement Assn. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Bob N. Krug, Judge. (Retired Judge of the San Bernardino Sup. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed.

Law Offices of Martin Taller and Martin Taller for Plaintiff and Appellant.

Jeffrey E. Jackson for Defendant and Respondent.

Cynthia Gury (Gury) appeals from the trial courts ruling denying her petition for writ of mandate to set aside the San Bernardino County Employees Retirement Associations (the Association) denial of her application for disability retirement. On appeal, Gury claims the trial court erred in finding certain evidence to be irrelevant, that insufficient evidence supported the courts decision, and that the ruling was vague. We disagree and affirm the courts ruling.

FACTUAL AND PROCEDURAL HISTORY

Gury began her employment with the County of San Bernardino (the County) on June 3, 1991. Her position was with the Department of Public Social Services as an Eligibility Worker II. Her responsibilities were, in essence, assisting applicants in applying for assistance and determining whether they were qualified for eligibility. Her duties entailed interviewing clients, filling out forms, documenting the applications and consulting manuals.

On September 18, 1995, Gury suffered an injury at work when a shelf fell, striking her on the left wrist. Gury was off work on September 19 and 20, and returned on September 21 with modified duties. Initially, Gury saw a number of doctors and on January 17, 1996, was referred to Dr. Gary Frykman, an orthopaedic surgeon. . Eventually, Dr. Frykman diagnosed Gury with torn triangular fibrocartilage, left wrist. He performed arthroscopic debridement of the involved area on August 2, 1996, and Gury returned to work in January 1997 with a modified work order. On January 14, 1997, Dr. Frykman ordered the following work restrictions: No lifting, gripping, pushing, or pulling greater than four pounds with her left hand.

Gury was ok for about a year with the modified duties, but when her workload increased she began experiencing increased pain in her left wrist and some pain in her right wrist. Dr. Frykman examined Gury on April 13, 1998; he recommended further treatment and maintained her same modified work duties.

She began treating with a chiropractor, Dr. Donald Frazee, who eventually referred her to Dr. Patrick Brennan, a specialist in orthopedics. On January 4, 1999, Gurys complaints to Dr. Brennan were: pain in right hand and wrist, pain radiating into right forearm, decreased grip strength in right hand, pain in left hand extending into the biceps, weakness left hand, occasional swelling in left hand, numbness in the morning in left hand, and spontaneous releasing of objects. Dr. Brennan placed her on temporary total disability as of January 4, 1999. Gury never returned to work.

On January 9, 2001, Dr. Norman Zemel, an orthopaedic surgeon, performed surgery on Gurys left wrist, which consisted of an arthroscopy debridement and endoscopic release of carpal tunnel. On June 5, 2001, Dr. Zemel performed endoscopic carpal tunnel release on Gurys right wrist.

On July 19, 2002, Dr. Mehdi Habibi, a neurosurgeon, performed a C6-C7 diskectomy and fusion based upon a diagnosis of C6-C7 ruptured disc and disc herniation, severe foraminal stenosis and C7 radiculopathy bilaterally.

Gury continued to complain of pain in both wrists; pain in her elbows, shoulders and neck; headaches; loss of grip strength; difficulty in lifting; and increase in pain from writing. On July 22, 2003, she filed an application for retirement benefits with the Association. She claimed a service-connected disability based upon her injury of September 18, 1995, which resulted in permanent incapacity because of bilateral carpal tunnel syndrome, bilateral ulnar nerve entrapment, left shoulder musculoligamentous sprain/strain with impingement. On August 5, 2004, the San Bernardino County Employees Retirement Board (the Board) denied Gurys application, finding that she was not permanently incapacitated for the performance of duties based on her claimed injuries. Gury requested a hearing.

A formal hearing was held on February 2, 2005. The hearing officer issued a proposed findings of fact and recommended decision on May 18, 2005, concluding that Gury has not carried her burden of proof that she is permanently incapacitated for the substantial performance of what had become her usual duties, and recommending her disability retirement be denied.

On July 15, 2006, Gurys attorney filed a request to augment the administrative record, contending that his client had just brought to his attention the existence of a November 21, 2003,^[1] letter to Gury from the Countys human resources department. The request to augment stated that the Hearing Officers proposed decision makes an important finding which directly conflicts with the facts established by the Countys November 21, 2003[,] letter. The Board granted the request to augment and directed the hearing officer to admit the letter into evidence and reconsider his findings and recommendations. The hearing officer reopened the hearing, admitted the letter into evidence, and considered its potential relationship to all the other evidence. The hearing officer issued an amendment and recommended it be made a part of his previous proposed findings, concluding that the letter had not changed his recommendation. The hearing officer, after considering the evidence, the law, and the objections of Gurys attorney, adopted his proposed findings and the amendment.

On December 1, 2005, the Association approved and adopted the proposed findings and recommendations of the hearing officer and denied Gury service-connected disability retirement.

Gury filed a petition for peremptory writ of mandate. In denying the petition, the court made the following finding: [T]he hearing officer found that the contents of the [November 21, 2003,] letter were not relevant to the determination of plaintiffs application for permanent disability and was of little value in making the determination of present disability because it was merely a conclusion without any factual basis being given. This court agrees. [] Also having read the extensive medical records of the medical history of the petitioner . . . the Court finds the petitioner has not borne her burden of proving permanent disability and entitlement to a disability pension. The Court finds that she has further not borne her burden of proving present disability from performing her usual duties . . . .

DISCUSSION

1. Substantial Evidence Supports The Judgment of The Trial Court

Gury claims that insufficient evidence supported the trial courts ruling denying her petition for writ of mandate. She contends that the greater weight of the evidence taken as a whole requires a finding that [she] has a permanent disability precluding her from performing her position with the County of San Bernardino. However, an applicant for disability retirement has the burden of proving that the member is permanently incapacitated physically or mentally for the performance of his [or her] duties in the service . . . . (Gov. Code, 31724.) The trial court denied Gurys petition for retirement disability finding that she had not met her burden of proving a disability, which prevented her from performing her usual duties as an eligibility worker.

When a vested fundamental right is at stake, the trial court is required to use its independent judgment in reviewing an administrative decision. [Citation.] The disability pension at issue here is such a vested right. . . . The questions on appellate review are: (1) whether the trial court exercised its independent judgment in reviewing the decision; and (2) if it did, whether there is substantial evidence to support the trial courts finding. (English v. Board of Administration of the Los Angeles City Employees Retirement System (1983) 148 Cal.App.3d 839, 845 (English).) Conflicts in the evidence must be resolved in favor of the respondent, and where two or more inferences can be reasonably drawn from the facts, the reviewing court must accept the inferences deduced by the trial court. (Abshear v. Teachers Retirement Board (1991) 231 Cal.App.3d 1629, 1635.) On a claim of insufficient evidence, we review the entire record to determine whether there was substantial evidence in support of the judgment. (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053.)

A. Independent Review

The trial court met its burden of conducting an independent review by having read the extensive medical records of the medical history of the petitioner and the various forms and treatments she has received . . . . The medical records are extensive and, clearly, from a review of the entire record, the medical opinions of the various doctors are not uncontradicted.

B. Substantial Evidence

[T]he power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, to support the findings below. (Bickel v. City of Piedmont, supra, 16 Cal.4th at p. 1053.)

Dr. Frykman, who performed Gurys initial surgery and examined her on April 14, 1998, declared that her work restrictions were, [n]o lifting, gripping, pushing or pulling greater than four pounds with her left hand. These work restrictions were incorporated into her work duties and were accommodated by her employer.

Dr. Brennan concluded on August 26, 2003, that Gury was permanent and stationary, and that the following work restrictions were indicated: cervical spineno substantial work requiring lifting, pushing, pulling, arm extension, working with arms above shoulders and repetitive motions of the neck; left shoulderno substantial work requiring lifting, pushing, pulling, working with arm above shoulder; right and left elbowsno heavy lifting or repetitive motion, and; right and left wristsno substantial work requiring lifting, pushing, pulling, fine manipulation or gripping, or repetitive motion. Again, these work restrictions were incorporated in Gurys work duties.

Dr. Fleming, an orthopaedic surgeon, examined Gury on April 4, 2003, and conducted a medical record review on October 7, 2003. He opined that (1) Gury was not totally disabled, (2) a reasonable period of three months total disability was attributable to her neck surgery, (3) she had not been totally disabled since August 2001, and (4) work restrictions with respect to her neck on a nonindustrial basis would preclude repetitive use of the upper extremities at or above shoulder level, prolonged positioning of the neck in one position or repetitive use of the neck. He also concluded based upon a review of her medical records and subrosa videotapes of Gury that she was exaggerating her claims and complaints.

Dr. Stanton, another orthopaedic surgeon, examined Gury on December 30, 2003, on behalf of the County. He concluded that Gury was not a candidate for retirement disability, and that she could perform her regular job duties except that she was restricted from lifting more than five pounds above shoulder level.

At the Countys request, Gury was also examined by Dr. Patrick, a neurologist, on January 16, 2004. Dr. Patrick concluded that Gury was capable of gainful employment from a neurological standpoint, that she had no permanent or temporary incapacities, and that she was able to perform her regular job duties.

In light of the foregoing and based upon our review of the entire record, we conclude that there is substantial evidence to support the trial court denying Gurys writ of mandate.^[2]

2. November 21, 2003, Letter

Gury contends the November 21, 2003, letter should have been binding on the Association.^[3] The letter, which was sent to Gury from a W.C. Adjuster within the Countys Human Resource Department, states: Pacific Industrial Med[.] Inc[.] reports you will not be able to return to your usual job because of the effects of your work injury. . . .  You are now eligible for a Vocational Rehabilitation Evaluation. . . . [] . . . [] A modified or alternative job with your employer is not available.

The letter, itself, was the only evidence introduced to substantiate its binding effect. The author of the letter did not testify. No evidence was presented concerning the factual basis for the authors statements, i.e., a modified or alternate job with your employer is not available. There is no evidence within the administrative record indicating who made this determination, when it was made, what time period it refers to, and what information was reviewed to allow the author to make that particular statement. A reference is made to unidentified reports from Pacific Industrial Med. Inc., and Gury speculates as to which reports those may be, but speculation is not evidence. The trial court did not disregard the letter, as Gury contends, but found, during the weighing process, that the conclusions were unsupported.^[4]

The trial court found that the letter was not relevant to the determination of whether Gury was permanently incapacitated. Even though we may disagree with the trial courts characterization of the relevancy of the letter, the apparent conclusions to be drawn were not supported by any foundational evidence. Relevant evidence is evidence having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. (Evid. Code, 210.)

Gury argues that Lazan v. County of Riverside (2006) 140 Cal.App.4th453 (Lazan); English, supra, 148 Cal.3d 839; and Barber v. Retirement Board (1971) 18 Cal.App.3d 273 (Barber), support her position that the letter should have been found to be binding on the Association. However, each of these cases is factually distinguishable from the present case.

A. Lazan

In Lazan, supra, 140 Cal.App.4th 453, the appellant was a deputy sheriff who requested that the county file an application for disability on her behalf under Government Code section 21153. The county refused, contending it did not believe Lazan was disabled. Lazan petitioned for a peremptory writ of mandate arguing that the county, through its workers compensation department, had determined that she was unable to perform her job duties because of a disability. This court agreed and found the county by its words and actions, demonstrated that it believed that Lazan was incapable of performing her job duties as a deputy sheriff, and that the county was required to apply for disability retirement on Lazans behalf. (Lazan, at p. 464)

There are two important differences. First, Lazan did not involve a disability retirement hearing, but merely a request by Lazan that the county file an application for disability retirement on her behalf. The dispositive question was whether the county believed Lazan was disabled. We found the countys words and actions contradicted its claimed belief that Lazan was not disabled. (Lazan, supra, 140 Cal.App.4th at p. 461.) In the present case, a disability retirement hearing was held and the burden of proof, by a preponderance of the evidence, was upon the applicant. (Glover v. Board of Retirement (1989) 214 Cal.App.3d 1327, 1337.) In Lazan the evidence only had to show that the county believed she was disabled, not that there was a preponderance of the evidence. This was accomplished by examining the words and actions of the county. Here, there are no words and actions. Rather, there is only a single letter without any underlying factual evidence supporting its meaning or conclusion.

B. English

In English, supra, 148 Cal.App.3d 839, the petitioner was a maintenance laborer with the City of Los Angeless Department of Recreation and Parks (the City). English injured his back while on the job, and applied for a disability pension. The retirement board denied his application and he subsequently returned to the City and asked to return to his old job. He claimed the City refused his request based upon his disability. English requested a rehearing of his disability application and it was denied. He petitioned the superior court to review the denial. The trial court denied his request on the sole basis that even though he could not lift 100 pounds, that was not a substantial part of his duties.

English argued on appeal that the board was collaterally estopped from denying his disability because the City had agreed to a rehabilitation plan. The appellate court held that collateral estoppel did not apply because the criteria used to determine acceptance into a City vocational rehabilitation plan differed from the granting of a disability retirement by the City. (English, supra, 148 Cal.3d at p. 844.) However, the appellate court reversed, finding that the trial court made no express findings on the administrative conflict or on the issues underlying it. (Id. at p. 847.) The conflict was created when the retirement board denied Englishs application for disability retirement, even though his employee coordinator had testified that his restrictions prevented him from performing his duties as a maintenance laborer.

In contrast, the trial court here made specific factual findings concerning the weight to which the letter was entitled. Further, the letter was the only evidence produced by Gury to substantiate a conflict, and unlike English, neither Gury nor her supervisor testified that Gury had sought reinstatement and been denied because of her limitations.

C. Barber

Lastly, in Barber, supra, 18 Cal.App.3d 273, a fireman appealed from the retirement boards directive that he retire because of a permanent disability. Gury is correct that the court found the retirement board was bound by the testimony of the fire chief, but this is why Barber is distinguishable from the present case. In Barber, the fire chief testified that Barber could not perform the duties of a fireman and that there were no permanent, light duty positions available. Again, in the present case, there is no testimony from Gurys supervisor or the author of the November 21st letter that binds the Association.

None of the above cases provides support for Gurys contention that the trial court did not properly weigh the relevant evidence; substantial evidence supports its decision that the letter did not bind the Association.

3. Waiver of Argument

Gury contends that the trial courts general ruling was vague thus the superior courts decision is not entitled to deference. However, there is no argument or citation to the record explaining how the ruling was vague. The appellant must affirmatively show error by including an argument and citation to the record. The absence of these essential items allows the court to treat the unsupported contention as waived. (Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448.)

DISPOSITION

The judgment is affirmed. Respondent is entitled to its costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ MILLER

J.

We concur:

/s/ RAMIREZ

P. J.

/s/ McKINSTER

J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line attorney.

^[1] On July 6, 2004, while not represented by counsel, Gury provided the Association with a copy of the November 21, 2003, letter.

^[2] In light of our conclusion that the petition for writ of mandate was properly denied, we need not resolve the issue whether the disability was service-connected.

^[3] Gury argues that both the hearing officer and the trial court failed to find the letter was binding on the Association. On appeal, the trial courts findings, not those of the agency, are reviewed. (English, supra, 148 Cal.App.3d at p. 845.)

^[4] Gurys attorney was conscious of these foundational issues when he wrote a letter to the chief counsel for the Association on July 26, 2005, confirming that counsel for the Association would recommend admission of the November 21, 2003, letter to the Board. The July 26th letter states: We also agree that if I obtain additional evidence, such as a document which provides the source for the determination that no modified or alternate work was available, that the Hearing Officer would also be requested to consider such other related documents. No such additional request is found in the administrative record.