Beckley v. Bd. of Admin. of Cal. Pub. Employees' Ret. Sys.

• Decision Date: 27 November 2013
• Docket Number: A135418
• Citation: 166 Cal.Rptr.3d 51,222 Cal.App.4th 691
• Court: California Court of Appeals Court of Appeals
• Parties: Perry C. BECKLEY, Plaintiff and Respondent, v. BOARD OF ADMINISTRATION OF CALIFORNIA PUBLIC EMPLOYEES' RETIREMENT SYSTEM, Defendant and Appellant.

222 Cal.App.4th 691

166 Cal.Rptr.3d 51

Perry C. BECKLEY, Plaintiff and Respondent,

v.BOARD OF ADMINISTRATION OF CALIFORNIA PUBLIC EMPLOYEES' RETIREMENT SYSTEM, Defendant and Appellant.

A135418

Court of Appeal,

First District, Division 4, California.

Filed November 27, 2013

Trial court: Alameda County, Trial judge: Hon. Evelio Grillo. (Alameda County Super. Ct. No. RG11593721)

Patricia Bertha Miles and Rory Jerome Coffey for Defendant and Appellant.

Law Offices of Linda Joanne Brown and Christopher Hayes Dahms, San Rafael, for Plaintiff and Respondent.

Rivera, J.

Plaintiff Perry Beckley was a California Highway Patrol (CHP) officer until the CHP determined he was not able to perform the tasks required of an officer. He applied for disability retirement, and the Board of Administration of California Public Employees' Retirement System (CalPERS) denied his application, ruling that Beckley was not disabled from carrying out the duties of the position he had most recently held as a public affairs officer (PAO). Beckley brought a petition for writ of mandate, which the trial court granted. CalPERS has appealed.¹ We shall affirm the trial court's judgment.

I. BACKGROUND

Beckley worked as a CHP officer for approximately 23 years. In 2003, he sought treatment for wrist and arm pain, which he believed were the result of processing an unusually large number of reports at work. Later in 2003, Beckley reported that he had hurt his back getting out of his state vehicle. While he was assigned to patrol duty later that year, he had “ ‘flare-ups' ” of his back condition, was diagnosed with lumbar disc degeneration and sciatica, and was taken off work temporarily on several occasions in 2003 and 2004.

In 2004, Beckley applied for a position as a PAO. The duties of the position included meeting with local legislators, city managers, and community leaders; speaking to community groups; community outreach programs such as child car seat inspections; and attending community fairs. Beckley would typically drive a patrol car and wear a uniform when attending outreach events. He was not assigned a beat to patrol, but when driving in a patrol car in uniform, he was expected to undertake ordinary enforcement actions, and did so on a number of occasions. The PAO is not a limited duty position, and a PAO could be assigned to perform road duty. Beckley performed well in his position as a PAO.

In 2006, Beckley was evaluated by a chiropractor, Dr. Erich Parks, in connection with a workers' compensation claim. Dr. Parks concluded that, as a result of his injuries to his upper extremities and lower back, Beckley could not “continue in his occupation since he has preclusions which cause him to be unable to fulfill the 14 critical activities, required by CHP.” ² Of those tasks, Dr. Parks concluded Beckley was unable safely to extract a 200–pound victim from a vehicle and lift, carry, and drag the victim 50 feet; physically subdue and handcuff a combative subject; change a flat tire; drive for extended periods of time; and run up and down stairs.

Either the State Compensation Insurance Fund or CHP's disability and retirement section reviewed the chiropractor's report, informed Beckley's commanding officer that Beckley “ ‘could not perform the 14 critical tasks,’ ” and instructed the commanding officer to “ ‘send [Beckley] home.’ ” The commanding officer did so. Beckley asked if he could continue to work as a PAO, and was told he could not do so because CHP officers had to be able to perform the 14 critical tasks at any time. Beckley was sent home on leave, and later took service retirement.

It is undisputed that in his job as PAO, Beckley was not required to perform any of the 14 critical tasks regularly, although he performed a few of the tasks on rare occasions during his time as PAO.

Beckley applied for industrial disability retirement. At a hearing on his application, Beckley presented evidence from three chiropractors that he was unable to carry out all of the 14 critical tasks. This evidence included the report of Dr. Parks, who had evaluated Beckley in connection with his workers' compensation claim. According to Dr. Parks, Beckley had suffered two distinct industrial injuries. The first involved “cumulative trauma to his upper extremities,” including carpal tunnel syndrome. The second was the injury to Beckley's lower back, in which a “chronic degenerative condition ... was aggravated by a sudden twist when exiting a patrol car.” Dr. Parks concluded Beckley had lost approximately half of his pre-injury capacity for fine motor control of his hands and for lifting, and that he “should be precluded from doing heavy lifting, repeat bending or stooping.” Dr. Parks believed Beckley's carpal tunnel syndrome was “permanent and stationary,” and his low back condition was “most likely permanent and stationary.”

Another chiropractor, Dr. Joseph Ambrose, opined in 2005 that Beckley had strained his lower back and his upper extremities in his employment with CHP, and that, “[g]iven [Beckley's] subjective factors of disability and objective findings ... it is my opinion that this patient should be permanently precluded from heavy lifting, repeated bending, prolonged running, jogging or jarring activities.” Later, after reviewing MRI results, he opined that Beckley “cannot perform all of the essential functions of his usual and customary occupation.”

The third chiropractor, Dr. Moses Jacob, evaluated Beckley in 2008 and reviewed his medical records. He diagnosed Beckley as suffering from, among other things, chronic back strain, “superimposed over lumbar disc herniation” and “bilateral carpal tunnel syndrome,” and concluded that these injuries were caused by his employment as a CHP officer. Objective factors for the spine diagnoses included “[l]imited mobility on extension,” “[p]ain on palpation,” “MRI findings,” and “[p]ositive orthopedic tests.” Objective findings to support the upper extremity injury included limited mobility in the right wrist and positive orthopedic and radiographic tests. Dr. Jacob concluded Beckley had a “preclusion from heavy lifting, repeated bending and stooping,” and that as a result of his injuries, Beckley “can NOT perform the duties required of a CHP officer.” ³

Dr. Joseph Serra, an orthopedic surgeon, examined Beckley at the request of CalPERS and reviewed his medical records. He concluded Beckley had “[c]hronic musculoligamentous strain lumbar spine,” “[m]ild degenerative disc disease L3–4 lumbar spine,” and “carpal tunnel syndrome, mild, resolved at present.” He opined that Beckley was not precluded from performing any of the job duties of a CHP officer, including the 14 tasks, although he could suffer pain or discomfort from performing them.⁴

CalPERS concluded Beckley's application for disability retirement “must be measured against his usual duties as a PAO, not against the 14 critical tasks” and that there was no medical evidence Beckley was unable to perform his usual duties as PAO either when he applied for disability in 2006 or when he retired in 2008. On that basis, CalPERS denied his application.

Beckley brought a petition for writ of mandate in the trial court. The trial court granted the petition. The court prepared a statement of decision concluding CalPERS erred in measuring Beckley's disability against his assigned usual duties as a PAO, rather than against the usual duties of a CHP officer, including the 14 critical tasks, and that the weight of the evidence showed Beckley was incapacitated for his performance of his duties. The court entered judgment directing CalPERS (1) to set aside its decision denying Beckley's application for disability for retirement and (2) to grant the application. Three weeks later, the court issued a peremptory writ of mandamus commanding CalPERS “to reconsider [its] action in light of this Court's Statement of Decision, and take further action especially enjoined on you by law.” This appeal ensued.⁵

II. STANDARD OF REVIEW

A public employee has a fundamental vested right to a disability pension if he or she is in fact disabled. (Quintana v. Board of Administration (1976) 54 Cal.App.3d 1018, 1023, 127 Cal.Rptr. 11 (Quintana ).) Accordingly, the trial court was authorized to apply its independent judgment as to the weight of the evidence. (Id. at p. 1021, 127 Cal.Rptr. 11.) On appeal, we “need only review the record to determine whether the trial court's findings are supported by substantial evidence.” (Id. at p. 1024, 127 Cal.Rptr. 11, italics added; see also Singh v. Board of Retirement (1996) 41 Cal.App.4th 1180, 1185, 49 Cal.Rptr.2d 220, fn. omitted (Singh ).) As to questions of law, we review those determinations de novo, although we give great weight to CalPERS's construction of the California Public Employees' Retirement Law (PERL) (Gov.Code,⁶ § 20000 et seq.). (Molina v. Board of Administration, Etc. (2011) 200 Cal.App.4th 53, 61, 132 Cal.Rptr.3d 435; O'Connor v. State Teachers' Retirement System (1996) 43 Cal.App.4th 1610, 1620–1621, 51 Cal.Rptr.2d 540.) If, however, there is “any ambiguity or uncertainty in the meaning of [the Public Employees' Retirement System] legislation [it] is to be liberally construed in favor of the public employee, as long as such construction is consistent with the clear language and purpose of the statute.” (City of Martinez v. Workers' Comp. Appeals Bd. (2000) 85 Cal.App.4th 601, 617, 102 Cal.Rptr.2d 588.)

III. DISCUSSION

Section 21151, subdivision (a) provides: “Any patrol, state safety, state industrial, state peace officer/firefighter, or local 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.” The PERL defines “ ‘[d]isability’ ” and “ ‘incapacity for performance of duty’ ” to mean “disability of permanent or extended and uncertain duration, as determined by the board, ... on...