Filed 1/24/18 Lowe v. Board of Administration, California Public Employees’ Retirement System CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SUZANNE LOWE,

Plaintiff and Appellant,

v.

BOARD OF ADMINISTRATION, CALIFORNIA PUBLIC EMPLOYEES’ RETIREMENT SYSTEM,

Defendant and Respondent.

F073545

(Super. Ct. No. 14CECG03354)


OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Lisa M. Gamoian, Judge.
Thomas J. Tusan for Plaintiff and Appellant.
Kevin Kreutz for Defendant and Respondent.
-ooOoo-
Appellant Suzanne Lowe, a registered nurse at a women’s correctional facility, applied for industrial disability retirement from California’s Public Employees’ Retirement System (CalPERS) in 2007. The application was rejected and Lowe filed a petition for writ of administrative mandate in superior court. After the superior court denied her petition, Lowe filed this appeal, contending the court (1) failed to conduct a truly independent review of the evidence in the administrative record and (2) failed to consider doctor reports relating to her workers’ compensation case.
The superior court correctly identified the applicable standard of review, which required the court to exercise its independent judgment as to the weight of the evidence. The court’s written decision demonstrated the court applied this standard when it examined the evidence in the administrative record and made its own factual findings, including credibility findings about the various doctor reports. Therefore, we conclude the superior court did not commit legal error by applying the wrong standard of review.
As to the superior court’s analysis of the doctor reports submitted in Lowe’s workers’ compensation case, we have identified no error. The court’s written decision clearly shows the court (1) considered those reports, (2) recognized the outcome in workers’ compensation cases are not binding in retirement disability cases, and (3) made an independent finding as to the credibility and persuasive value of those reports.
We therefore affirm the order denying the petition for writ of mandate.
FACTS
Lowe began working for the State of California in 1985. In 1992, she completed a registered nursing degree. From 1995 to 2000, she worked as a registered nurse at the Department of Corrections and Rehabilitation’s facility in Corcoran. In 2000, Lowe transferred to the department’s Central California Women’s Facility. She then worked for about a year at the California Department of Health before returning to the women’s facility. Lowe functioned primarily as a triage nurse, evaluating and treating inmate medical problems. Lowe last worked for the department in May 2005, when she was 43 years old.
Lowe testified she started having physical problems in early 2001 and saw a physician in 2002 for pain in her neck going down her arm. In 2003, she injured her back when a heavyset inmate she was helping from a gurney fell on her. Lowe was off work for two to three weeks and received physical therapy and medication. The pain in her low back and right leg continued to flare over subsequent months.
In May 2005, Lowe injured her arm and shoulder attempting to get a loaded cart through a heavy door at the facility. She felt a pop in the left mid-scapular region and shoulder and experienced a muscle spasm. Lowe came to work the next day, but left early as the muscle spasm developed into a migraine. She did not return to work. Lowe’s injury was initially treated conservatively, but eventually she had surgery (a right lateral tendon release) on her elbow in March 2006. In 2011, she had carpal tunnel surgery on her left and right arms.
The foregoing is far from a complete description of Lowe’s various injuries, medical conditions, and treatments. Also, the opinion omits details about the 2007 video surveillance of Lowe’s activities, the various doctor reports and testimony about her orthopedic injuries, and the evidence relating to the diagnosis of fibromyalgia and chronic fatigue syndrome. The legal issues raised by Lowe in this appeal are relatively narrow and the omitted historical facts (or the conflicting evidence relevant to establishing these historical facts) are not material to resolving those legal issues. (See generally, Cal. Const., art. VI, § 14 [requirement that appellate decision “be in writing with reasons stated”]; People v. Garcia (2002) 97 Cal.App.4th 847, 854 [inclusion of material facts in appellate opinion].)
An issue raised in this appeal relates to the various doctor reports prepared from 2006 through 2011 in connection with Lowe’s workers’ compensation claim. Those reports were part of the evidence Lowe presented to support her application for disability retirement. The reports were included in the administrative record, discussed in the administrative law judge’s proposed decision, and analyzed by the superior court in its decision.
PROCEEDINGS
Administrative Proceedings
In May 2007, Lowe submitted an application for industrial disability retirement to defendant Board of Administration of the California Public Employees’ Retirement System (board). In accordance with a statutory directive, the board scheduled a medical examination to determine whether Lowe was disabled. In August and September 2007, a disability validation team conducted a surveillance of Lowe’s activities on five separate days and videotaped some of those activities. In October 2007, the medical examination of Lowe scheduled by the board was conducted by Kenneth L. Baldwin, M.D., an orthopedic surgeon, in his Fresno office. Dr. Baldwin’s report of that examination was submitted to the benefit services division of CalPERS. Also, a letter from Frank L. Cantrell, M.D., a neurologist who was Lowe’s treating physician from January 2001 through March 2005, was presented in connection with Lowe’s application.
In April 2008, the benefit services division of CalPERS sent Lowe written notice that her application had been denied. The notice stated all medical evidence had been reviewed, including the reports of Drs. Cantrell and Baldwin. Based on those reports, it was determined that Lowe’s “orthopedic (right arm, right shoulder, hip, neck, back and lower extremities) conditions [we]re not disabling” and, as a result, Lowe was not substantially incapacitated from the performance of her job duties as a registered nurse at the women’s correctional facility. The notice also informed Lowe of her right to appeal within 30 days.
Lowe submitted a written appeal and a handwritten request asking if her case could be reevaluated to consider the fibromyalgia and chronic fatigue that had been diagnosed about one year earlier in 2007. Further examinations and administrative procedures occurred.
Eventually, Lowe’s appeal from the denial of her application was presented to an administrative law judge from the Office of Administrative Hearings, a division of the California Department of General Services. Hearings were held on November 21, 2013, in Fresno and on July 10, 2014, in Sacramento.
In September 2014, the administrative law judge issued a proposed decision denying Lowe’s administrative appeal of the determination that she was not eligible for industrial disability retirement. The proposed decision framed the issue presented as whether, at the time Lowe filed her application for disability retirement (i.e., about 7.25 years earlier), she was permanently disabled or incapacitated from performance of her duties as a registered nurse at the women’s correctional facility due to orthopedic conditions, chronic fatigue syndrome, fibromyalgia, or a combination of these conditions. The 24-page proposed decision contained 69 numbered paragraphs of factual findings relating to Lowe’s testimony, the 2007 video surveillance of Lowe’s activities, and the many doctor reports about her orthopedic condition and fibromyalgia. The following quote from paragraph 46 of the administrative law judge’s findings shows how she dealt with a doctor’s report prepared in connection with Lowe’s workers’ compensation case:
“Ms. Lowe also relied upon the opinions of Dr. Baker to support her claim that she is disabled because of orthopedic injuries. Dr. Baker’s reports were admitted as hearsay and he did not testify at [the] hearing. He examined Ms. Lowe in the context of the workers’ compensation law, and was focused on determining her impairment/disability ratings for her various injuries. Although he concluded that she could not return to work, he did not make a finding that she was substantially incapacitated from the performance of her job duties. Dr. Baker’s opinions are not persuasive for additional reasons. He had not seen the sub-rosa videotape. His examination of October 9, 2007, was just a month after these sub-rosa videotapes were taken.… Had Dr. Baker reviewed the sub-rosa videotape, it is arguable that his opinion regarding Ms. Lowe’s ability to use her fingers would have changed. Additionally, Dr. Baker based some conclusions on medical evidence that did not support the conclusion. For example, he concluded that Ms. Lowe had preclusions in twisting, torqueing, bending, sitting and standing and based these on MRI findings which did not show nerve impairment or show any findings except normal degenerative changes for a woman [o]f Ms. Lowe’s age.”
In October 2014, the board passed a resolution adopting the administrative law judge’s proposed decision as its own. Five days after the resolution was passed, the board issued its written decision.
Superior Court Proceedings
In November 2014, Lowe filed a petition for writ of administrative mandate pursuant to Code of Civil Procedure section 1094.5 challenging the board’s denial of her application for industrial disability retirement. The petition requested the superior court to exercise its independent judgment on the evidence and determine that the board abused its discretion by rendering a decision that was not supported by the weight of the evidence.
In May 2015, the board filed its answer to Lowe’s petition. The administrative record was lodged with the clerk of the superior court. On November 18, 2015, after the matter was fully briefed, oral arguments were presented to the superior court.
On February 16, 2016, the superior court filed its 18-page written order explaining its decision to deny the petition for writ of administrative mandate. The court’s discussion of the standard of review governing its analysis is described in part II.B.1., post, of this opinion.
On April 13, 2016, approximately 11 years after her last day of work, Lowe filed a notice of appeal from the order denying her petition for writ of administrative mandate.
DISCUSSION
I. BACKGROUND
A. State Employees and Disability Retirement
1. Eligibility
The board manages retirement benefits for public employees under the provisions of the Public Employees’ Retirement Law (PERL; §§ 20000 to 21703). The purpose of the PERL “is to effect economy and efficiency in the public service by providing a means whereby employees who become superannuated or otherwise incapacitated may, without hardship or prejudice, be replaced by more capable employees, and to that end provide a retirement system consisting of retirement compensation and death benefits.” (§ 20001.)
“‘Disability’” and the equivalent phrase “‘incapacity for performance of duty,’” when used as a basis of retirement, mean “disability of permanent or extended and uncertain duration, as determined by the board … on the basis of competent medical opinion.” (Former § 20026.) PERL provides two types of disability retirement. The regular type is addressed in section 21150. The “industrial” type is addressed in section 21151 and is limited to certain employees, including state safety and state peace officer members, who are disabled “as a result of injury or disease arising out of and in the course of [the member’s] employment.” (§ 20046 [definition of “industrial”].)
Lowe is a state safety member as a result of her employment as a registered nurse at a women’s correctional facility and contends she was injured at her job. Consequently, Lowe applied for industrial disability retirement under subdivision (a) of section 21151, which provides that any state safety member “incapacitated for the performance of duty as the result of an industrial disability shall be retired for disability, pursuant to this chapter, regardless of age or amount of service.”
2. Procedures at Administrative Level
A member may apply on her own behalf to the board for disability retirement. (§ 21152, subd. (d).) Upon receipt of an application for disability retirement, the board shall order a medical examination to determine whether the member is incapacitated for the performance of duty. (§ 21154.) If the medical examination and other available information show to the satisfaction of the board that the member is incapacitated for the performance of her duties and is eligible to retire for disability, the board shall immediately retire the member for disability. (§ 21156, subd. (a)(1).) The board shall make its determination “on the basis of competent medical opinion and shall not use disability retirement as a substitute for the disciplinary process.” (§ 21156, subd. (a)(2).)
Pursuant to its statutory rulemaking authority under section 20121, the board authorized the CalPERS executive officer to act on a variety of applications, including applications for retirement for disability. (Cal. Code Regs., tit. 2, § 555.) The board also authorized the executive officer to delegate authority to subordinates to take any such action on his behalf. (Ibid.) A member dissatisfied with the action of the executive officer may appeal to the board by filing a written notice of appeal. (Cal. Code Regs., tit. 2, § 555.1.) The member is entitled to a hearing, and the executive officer must execute a statement of issues. (Cal. Code Regs., tit. 2, § 555.2.) The hearing is conducted by an administrative law judge from the Office of Administrative Hearings in accordance with California’s Administrative Procedures Act (§ 11500, et seq.). (§ 20134; Cal. Code Regs., tit. 2, § 555.4.) The proposed decision of the administrative law judge must be referred to the board. (Cal. Code Regs., tit. 2, § 555.4.)
B. Judicial Review
1. Superior Court
The board’s final decision on an application for disability retirement is subject to judicial review pursuant to a petition for writ of administrative mandate. (§ 11523; Code Civ. Proc., § 1094.5.) Pursuant to subdivision (b) of Code of Civil Procedure section 1094.5, the judicial review of a final administrative decision “shall extend to the questions of 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.” (Ibid.) An abuse of discretion can occur three different ways: (1) “the respondent has not proceeded in the manner required by law,” (2) the “decision is not supported by the findings,” or (3) “the findings are not supported by the evidence.” (Ibid.)
Here, Lowe alleged the board abused its discretion because its findings were not supported by the evidence. A judicial inquiry into the sufficiency of the evidence supporting an administrative decision is governed by one of two statutory standards. The choice of standards depends upon whether the court is authorized to exercise its independent judgment on the evidence. In disability retirement cases, the superior court is “authorized by law to exercise its independent judgment on the evidence” as that phrase is used in Code of Civil Procedure section 1094.5, subdivision (c) because a public employee has a fundamental vested right to a disability pension if he or she is in fact disabled. (Beckley v. Board of Administration etc. (2013) 222 Cal.App.4th 691, 697 (Beckley).) Consequently, an “abuse of discretion is established if the [superior] court determines that the findings are not supported by the weight of the evidence.” (Code Civ. Proc., § 1094.5, subd. (c), italics added.) The phrase “weight of the evidence” means the preponderance of the evidence. (Duncan v. Department of Personnel Administration (2000) 77 Cal.App.4th 1166, 1174.)
When exercising its independent judgment about the weight of the evidence, the superior court must independently weigh (i.e., reweigh) the evidence in the administrative record and make its own factual findings. (Ocheltree v. Gourley (2002) 102 Cal.App.4th 1013, 1017; Levingston v. Retirement Board (1995) 38 Cal.App.4th 996, 1000.) The court’s factual findings include determinations about the credibility of the witnesses. (Ocheltree, supra, at p. 1017.) After the court has made its factual findings based on the weight of the evidence, it compares those findings to the board’s findings and determines whether to set aside or uphold the administrative decision. (Ibid.)
2. Appellate Court
An appellate court reviewing a superior court’s decision relating to a disability retirement application (1) examines the superior court’s findings of fact to determine if the findings are supported by substantial evidence and (2) independently reviews the superior court’s determinations of questions of law. (Beckley, supra, 222 Cal.App.4th at p. 697.) Whether the superior court applied the correct standard of review during its evaluation of the matter is a question of law subject to independent review on appeal. (Rodriguez v. City of Santa Cruz (2014) 227 Cal.App.4th 1443, 1452.)
II. CLAIMS OF SUPERIOR COURT ERROR
A. Contentions of the Parties
Lowe contends the superior court was required to weigh the evidence itself, including the credibility of witnesses, and exercise its own judgment on the facts. Lowe contends the court failed to properly consider the evidence and, accordingly, deprived her of the proper independent review of the denial of her application for disability retirement. More specifically, Lowe asserts the court erred by disregarding medical opinions it deemed were associated with her workers’ compensation case. Lowe requests this court to reverse the superior court’s decision and remand with directions for that court to “consider all of the evidence before it, without assuming that evidence developed in the workers’ compensation case is, by its very nature, of lesser or no value.”
The board contends the superior court’s decision should stand because it is supported by substantial evidence—specifically, the opinions of an orthopedic surgeon and a rheumatologist who examined Lowe and determined she was not substantially incapacitated. Furthermore, the board contends the record clearly shows the superior court conducted an independent review of the evidence and reached its own decision about how much weight to give the workers’ compensation reports authored by doctors who were not applying the substantial incapacity standard used to determine eligibility for retirement disability.
B. Standard of Review Applied by Superior Court
1. Contents of Written Decision
The superior court’s written decision included a section labeled “Standard of Review.” That section correctly identified a disabled member’s right to a disability retirement as a fundamental vested right and the superior court’s obligation to conduct an independent review of the administrative record to determine if the weight of the evidence supported the findings in the final administrative decision. The remainder of the section explained the applicable standard of review as follows:
“‘In carrying out this independent review, however, the trial court must afford the agency’s decision a strong presumption of correctness and must impose upon the petitioner the burden of showing that the agency’s findings are contrary to the weight of the evidence, i.e. the decision was not supported by the preponderance of the evidence.’ (Alberda v. Bd. of Retirement of Fresno County Employees’ Retirement Assoc. (2013) 214 Cal.App.4th 426, 433.) ‘In other words, the presumption provides the trial court with a starting point for review but it is only a presumption, and may be overcome. Because the trial court ultimately must exercise its own independent judgment, that court is free to substitute its own findings after first giving due respect to the agency’s findings.’ (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 818.) ‘This includes examining the credibility of witnesses.’ (Alberda, 214 Cal.App.4th at p. 433.) ‘An abuse of discretion is established if the trial court determines that the findings are not supported by the weight of the evidence.’ (Ibid.; see Code Civ. Proc., § 1094.5, subd. (c).)”
The third and final section of the superior court’s written decision was labeled “Merits of the Petition for Writ of Mandate.” Five times in this section, the superior court referred to the “weight of the evidence” standard and stated once it was “conducting an independent review of the administrative record.”
2. Analysis of Superior Court’s Decision
The fact the superior court’s written decision correctly identified the applicable standard of review does not conclusively establish the court correctly applied that standard to the evidence in the administrative record. For example, this court considered a written decision in which “the trial court began … by stating the correct standard of review, i.e., independent judgment,” but then used the phrase “‘substantial evidence supports’” at least three times in reference to the hearing officer’s decision or findings. (Alberda v. Board of Retirement of Fresno County Employees’ Retirement Assn., supra, 214 Cal.App.4th at p. 434 (Alberda).) In Alberda, the superior court’s written decision also cited a case that set forth the substantial evidence standard. (Ibid.) Based on that citation and the superior court’s statements that “‘substantial evidence supports,’” we concluded it was likely the court applied the substantial evidence standard of review rather than the correct independent judgment standard. (Id. at p. 435.) As a result, we remanded the matter for a new hearing. (Id. at p. 436; see Rodriguez v. City of Santa Cruz, supra, 227 Cal.App.4th at p. 1452 [trial court applied incorrect standard of review; denial of petition for writ of mandate reversed and matter remanded with directions to reconsider petition under independent judgment standard of review].)
Based on the record presented in this appeal, we conclude the superior court applied the correct standard of review. First, the superior court demonstrated its awareness of the lower court error committed in Alberda by citing that decision in its description of the standard of review. Second, the superior court’s written decision does not use the term “substantial evidence” and repeatedly refers to “the weight of the evidence” in discussing the merits of the petition for writ of mandate. Third, the court explicitly stated it was “conducting an independent review of the administrative record” in connection with finding the board did not abuse its discretion in denying Lowe’s appeal.
In summary, there is only one reasonable interpretation of the superior court’s written decision on the question of the standard of review applied by that court. The decision unambiguously refers to the use of the court’s independent judgment about the weight of the evidence. Therefore, we conclude the superior court applied the correct standard of review. Next, we consider Lowe’s argument that the court erred in its treatment of the evidence developed in her workers’ compensation case.
C. Evidence from Workers’ Compensation Case
1. Failure to Consider Evidence
In Lowe’s view, the superior court’s decision characterized otherwise credible evidence as belonging to her workers’ compensation claim, which lead the court to erroneously “conclude that such evidence was not to be considered in the exercise of its independent judgment.” We reject Lowe’s failed-to-consider argument because it misinterprets the superior court’s decision.
First, we define what it means to “consider” evidence. In Gonzales v. Interinsurance Exchange (1978) 84 Cal.App.3d 58, an insured driver filed a petition to vacate an arbitration award of $9,000 under his uninsured motorist coverage by alleging the arbitrator substantially prejudiced his right by failing to consider the medical evidence presented. (Id. at p. 61.) The court distinguished between a failure to consider evidence and a refusal to hear evidence. Relying on a dictionary, the court stated: “Consider is ‘to view attentively … to fix the mind on, with a view to careful examination; to think on with care; to ponder; to study; to meditate on; …’” (Id. at p. 63.) The court further explained, “Legally speaking the admission of evidence is to hear it, and the weighing of it is to give it consideration.” (Ibid.) We adopt this definition of “consider” and conclude it means the weighing of evidence.
Second, based on our interpretation of the superior court’s decision, we conclude the court considered the evidence that was presented by Lowe in her workers’ compensation case. The evidence in question is the reports of two doctors who acted as agreed medical examiners in her workers’ compensation case—Richard G. Baker, M.D., an orthopedic surgeon, and David L. Kneapler, M.D., a rheumatologist and pain specialist.
The superior court discussed Dr. Baker’s report from two perspectives. First, the court addressed Lowe’s argument that Dr. Baldwin had mischaracterized Dr. Baker’s finding. The court rejected the argument, found Dr. Baldwin had not improperly testified about Dr. Baker’s findings, and interpreted Dr. Baldwin’s testimony as “clearly stat[ing] that Dr. Baker found that Lowe had some impairment or limitation in her shoulder range of motion.” Second, the court stated its determination that Dr. Baldwin’s opinion of no substantial incapacity was the most persuasive and then described Dr. Baker’s report as follows:
“On the other hand, it is true that Dr. Baker determined that, assuming Lowe’s depiction of her customary work is accurate, that Lowe was unable to perform her usual work due to the collective consequences of her various injuries, but that she could perform modified work. (AR 196.) However, Dr. Baker’s report was prepared in the context of Lowe’s worker’s compensation case and there is nothing in the report to suggest that Dr. Baker ever considered whether or not the impairments that he found substantially incapacitated Lowe from performing her usual job duties. (See Smith v. City of Napa (2004) 120 Cal.App.4th 194, 207.) Therefore, Dr. Baker’s opinion that Lowe’s orthopedic condition kept her from performing her usual work is not persuasive evidence that Lowe is substantially incapacitated from her usual job duties.”
The superior court’s explicit discussion of Dr. Baker’s report and opinions plainly demonstrates the court considered that evidence—that is, studied it and thought with care before determining how much weight to give it. Consequently, Lowe has not demonstrated the superior court committed legal error by failing to consider the evidence from Dr. Baker.
Similarly, the superior court addressed Dr. Kneapler’s March 14, 2011, report about Lowe’s fibromyalgia by stating “this report was also prepared in the context of Lowe’s worker’s compensation case and there is nothing in the report to demonstrate that Dr. Kneapler ever considered whether or not Lowe’s fibromyalgia substantially incapacitated her from performing her usual job duties. (See Smith v. City of Napa (2004) 120 Cal.App.4th 194, 207.)” The court explicitly determined “neither Dr. Kneapler’s opinion nor Dr. Scalapino’s opinion is credible and persuasive.” These statements in the court’s written decision demonstrate the court considered Dr. Kneapler’s report and his opinion about Lowe’s condition. Consequently, the superior court did not commit legal error by failing to consider the evidence from Dr. Kneapler.
2. Improper Evaluation of the Evidence
Besides arguing that the superior court failed to consider the evidence presented in her workers’ compensation case, Lowe also asserted the court took a dim view of that evidence and showed disdain for anything workers’ compensation. We interpret this assertion as an alternative to the failed-to-consider argument—an alternative asserting that even though the superior court considered the evidence, its evaluation of the evidence was improper (i.e., legally incorrect). Lowe contends this improper evaluation resulted from the superior court’s misinterpretation of Smith v. City of Napa, supra, 120 Cal.App.4th 194 (Smith). Lowe argues “it is incumbent for this appellate court to address whether the trial court correctly relied upon its interpretation of the holding in Smith.”
In Smith, a city firefighter filed a petition for writ of mandate directing the city and CalPERS to consider the merits of his application for disability retirement. (Smith, supra, 120 Cal.App.4th at p. 198.) The superior court summarily denied the petition and entered judgment for the defendants. (Ibid.) The Third District affirmed. (Id. at p. 208.)
In 1990, the firefighter in Smith, had received a partial permanent disability rating of almost 15 percent in workers’ compensation proceedings for a back injury. (Smith, supra, 120 Cal.App.4th at p. 199.) In 2000, he was dismissed by the city for cause. (Id. at pp. 198, 201.) On the effective date of the firefighter’s dismissal, he submitted an application for a disability retirement to CalPERS. (Id. at p. 201.) CalPERS denied the disability retirement application because the firefighter no longer had an employment relationship with the city. (Id. at pp. 198, 202.) The Third District concluded a dismissal for good cause unrelated to a medical disability disqualifies the employee for a disability retirement. (Id. at p. 204.) The Third District then addressed the possibility that “a court, applying the principle of equity, will deem an employee’s right to disability retirement to be matured and thus survive a dismissal for cause.” (Id. at pp. 206-207.) Having identified a possible exception to the general rule, the court addressed whether the exception might apply to the firefighter’s situation and concluded it would not. First, the court noted there had been no pending disability retirement application when the firefighter was dismissed for cause. Consequently, it was not a case where a decision on the application had been delayed until after the employee’s dismissal for cause. (Id. at p. 207.) Second, the court addressed another way a matured right to disability retirement might be established by stating:
“Nor, for that matter, is the undisputed evidence that the [firefighter] was eligible for a CalPERS disability retirement, such that a favorable decision on his claim would have been a foregone conclusion (as perhaps with a loss of limb). At best, the record contains medical opinions of a permanent disability for purposes of the prior and pending workers’ compensation claims. But a workers’ compensation ruling is not binding on the issue of eligibility for disability retirement because the focus of the issues and the parties are different. (Bianchi v. City of San Diego (1989) 214 Cal.App.3d 563, 567; Summerford v. Board of Retirement (1977) 72 Cal.App.3d 128, 132.) And for purposes of the standard for disability retirement, the [firefighter’s] medical evidence is not unequivocal. The defendants would have a basis for litigating whether this evidence demonstrated a substantial inability to perform his duties or instead showed only discomfort making it difficult to perform his duties, which is insufficient. [Citations.] Thus, an entitlement to a disability retirement cannot rest on the medical evidence of the [firefighter].” (Smith, supra, 120 Cal.App.4th at p. 207, fn. omitted.)
The Third District concluded the firefighter did not come within an exception to the general rule that a dismissal for cause extinguishes the employee’s right to a disability retirement. (Smith, supra, 120 Cal.App.4th at p. 208.) As a result, the Third District affirmed the superior court’s summary denial of the firefighter’s petition for writ of mandate. (Id. at pp. 198, 208.)
Lowe urges this court to “address whether the trial court correctly relied upon its interpretation of the holding in Smith.” The first step in addressing this issue is to determine how the superior court interpreted Smith as it relates to evidence presented in a workers’ compensation case. The superior court did not explicitly state how it interpreted Smith. Consequently, we must resolve the question by inference.
Our choice among the possible inferences is guided by the general principle of appellate practice that an “‘order of the lower court is presumed correct.’” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Under this principle, when the appellate record is silent on a matter, the reviewing court must indulge all intendments and presumptions that support the order. (Ibid.) Accordingly, we presume (i.e., infer) the superior court correctly interpreted Smith and, as required by the independent judgment standard, (1) evaluated the doctor reports submitted in the workers’ compensation case and (2) made its own determination as to the weight to be given to that evidence. It follows that the superior court did not err in relying on Smith in connection with its analysis of the evidence from Lowe’s workers’ compensation case. The fact that the superior court’s evaluation of the evidence from the workers’ compensation case was similar to that adopted by the administrative law judge is insufficient to establish the court failed to undertake its obligation to conduct an independent review.
In summary, we conclude the superior court did not err in its analysis of the evidence presented in Lowe’s workers’ compensation case. Rather, the court complied with its obligation to conduct an independent review of that evidence and reach its own determination about the weight to be given to that evidence.
DISPOSITION
The order denying the petition for writ of mandate is affirmed. The board shall recover its costs on appeal.



FRANSON, J.
WE CONCUR:



LEVY, Acting P.J.



POOCHIGIAN, J.