Cameron v. Sacramento Cnty. Employees' Ret. Sys.

• Decision Date: 02 November 2016
• Docket Number: C077823
• Citation: 209 Cal.Rptr.3d 378,4 Cal.App.5th 1266
• Court: California Court of Appeals Court of Appeals
• Parties: Paul CAMERON, Plaintiff and Appellant, v. SACRAMENTO COUNTY EMPLOYEES' RETIREMENT SYSTEM, Defendant and Respondent.

4 Cal.App.5th 1266

209 Cal.Rptr.3d 378

Paul CAMERON, Plaintiff and Appellant,

v.SACRAMENTO COUNTY EMPLOYEES' RETIREMENT SYSTEM, Defendant and Respondent.

C077823

Court of Appeal, Third District, California.

Filed November 2, 2016

Certified for Partial Publication.^*

Ronald Metzinger, Sacramento, for Plaintiff and Appellant.

Diana L. Ruiz, for Defendant and Respondent.

MURRAY, J.

Plaintiff and appellant Paul Cameron appeals from the trial court's judgment denying his petition for a writ of administrative mandate challenging the Sacramento County Employees' Retirement System Board's (SCERS) decision to reject his application seeking a service-connected disability retirement.

Plaintiff submitted his application for disability retirement on May 22, 2009, after the second of two injuries he sustained during his tenure as a Sacramento County employee. The SCERS staff referred this matter to the Office of Administrative Hearings where it was heard by Administrative Law Judge (ALJ) Catherine B. Frink. On February 6, 2013, the ALJ found that the application was untimely and denied the application for service-related retirement. Based on the ALJ's findings, SCERS denied plaintiff's application for service-connected retirement.

Plaintiff then filed a petition for writ of administrative mandate challenging the board's decision. The trial court denied plaintiff's petition. On appeal, plaintiff contends that the trial court erred in denying his application for service-connected disability retirement.

In the published portion of this opinion, we conclude that plaintiff failed to show he was continuously disabled within the meaning of Government Code sections 31722 and 31641, subdivision (a),¹ between the discontinuance of his service and the time he filed his application for service-connected disability retirement. Consequently, his application was not timely under section 31722.

In the unpublished portion of this opinion, we conclude that plaintiff has not shown that SCERS failed to inform him of his rights regarding disability retirement, misled him concerning those rights, otherwise breached its fiduciary duty to him, or caused plaintiff's delay in making his application.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff's Employment and Disability History

Plaintiff began employment for Sacramento County (the County) as an automotive service worker on December 3, 2001. His employment with the County automatically qualified him as a miscellaneous tier III member of SCERS. He is credited for working just over six years for the County, and at the time of his disability retirement request, he was classified as a range A, auto mechanic. Plaintiff's duties required him to perform repairs and install light bars and other added equipment to “ ‘build up’ ” law enforcement vehicles. He was required to lift up to 75 pounds.

During his time working for the County, plaintiff was injured twice. The first injury was on September 16, 2004, where he sustained a neck injury. After this accident, plaintiff returned to work after taking 10 days of temporary disability to recover. The second injury occurred on July 6, 2005, where plaintiff sought treatment for headache, neck pain, and left arm numbness. He then spent five weeks recovering from that injury before returning to his full-time duties.

Throughout 2007, plaintiff met with medical professionals after he applied for workers' compensation benefits. On March 1, 2007, Dr. Edward M. Tapper, an orthopedic surgeon, examined plaintiff. Based on an MRI, Dr. Tapper diagnosed plaintiff with “a herniated disc at C6–7.” In his initial report dated April 16, 2007, Dr. Tapper noted that plaintiff was at that time doing his regular job and did not appear to be a qualified injured worker for workers' compensation purposes. In a report dated July 26, 2007, Dr. Tapper opined that plaintiff had a 15 percent permanent impairment related to his cervical disc herniation and a possible three percent whole person impairment related to myofascial pain syndrome.

On April 4, 2007, Dr. Beth Bathgate, an orthopedic surgeon, examined plaintiff and issued a report two months later. She also diagnosed plaintiff with a herniated disc at C6–7. She concluded that plaintiff was “permanent and stationary” for workers' compensation purposes, noting that he had returned to work after sustaining both injuries. Dr. Bathgate's judgment was that plaintiff had 18 percent impairment of the whole person as a result of his cervical disc injury. She stated that plaintiff could continue full-time work as tolerated but also noted that plaintiff had “work preclusions from Repetitive Neck Flexion and Extension and Heavy Lifting.”

Plaintiff continued his full-time employment as an automotive mechanic for the County until December 7, 2007. On December 8, 2007, he was arrested for discharging a firearm in a grossly negligent manner during a non-work related incident. As a result, his required security clearance was suspended pending reassessment by the County. Effective December 10, 2007, he was placed on administrative leave, pending the County's investigation.

Part of the County's investigation required plaintiff to receive a psychological evaluation by Mark Kimmel, Ph.D. Dr. Kimmel saw plaintiff on January 2, 2008. Dr. Kimmel concluded that plaintiff was not fit for duty and that he was “ ‘potentially a danger to others based on his recurrent and poorly controlled mood states, coupled with poor impulse control and reactivity.’ ” Dr. Kimmel recommended plaintiff be evaluated by a psychiatrist and take anger management and stress management courses. As a result of Dr. Kimmel's findings, plaintiff was removed from administrative leave and placed on medical leave effective January 23, 2008.

Plaintiff exhausted his leave balances and was on unpaid leave effective February 5, 2008. On April 24, 2008, plaintiff exhausted his Family Medical Leave Act and California Family Rights Act (FMLA/CFRA) entitlement.²

Plaintiff was reevaluated by Dr. Kimmel on May 14, 2008, and was found fit to return to work. Plaintiff received vacation pay and sick leave pay during the same week, which was compensation to which he was entitled for attending the May 14 medical evaluation. This was the last compensation plaintiff received from the County. It was paid on May 15, 2008.

On June 16, 2008, plaintiff's security clearance was reinstated. However, plaintiff did not return to work.

Between October 28, 2008, and November 25, 2008, the County had a company monitor and video record plaintiff performing his day-to-day activities. These activities included bending down to fix his sprinklers and also lifting objects.

Plaintiff submitted a note to the County dated November 12, 2008, from his personal physician, Dr. Paul Seites. Dr. Seites wrote that plaintiff was not able to work from June 16, 2008, to September 29, 2008.³

On January 14, 2009, plaintiff saw another physician, Dr. Mark King, who reviewed plaintiff's condition. In his report, Dr. King described his findings as: “Mild degenerative changes of the mid-to-lower cervical spine from C3 through C7 ... with osteophytes.” He did not opine that plaintiff was at anytime substantially incapacitated from the performance of his duties.

On March 11, 2009, Lori Kleczka, a personnel analyst employed by the County, sent plaintiff a letter outlining his leave history. The letter referenced a letter from Dr. Seites indicating that plaintiff needed to be off work through February 2, 2010. The letter also referenced a plaintiff's failure to respond to a “Reasonable Accommodation Request form” she sent to him on December 26, 2008, and went on to explain that due to business necessity, the County could not approve any more leave. The letter discussed three options. He could voluntarily resign, which would allow him to request reinstatement up to three years. He could submit an application for retirement and the letter advised him to contact SCERS to discuss his retirement options.

Lastly, he could return to work if he could produce a medical release. The letter explained that if he did not exercise one of those options by March 26, 2009, he would be considered absent without leave and subject to disciplinary action or termination.

On April 22, 2009, plaintiff signed his application for service-connected disability retirement. The application was submitted to SCERS on May 22, 2009, and was deemed completed by SCERS on June 24, 2009.

Plaintiff claimed he was permanently incapacitated because of neck pain and cervical disease described as “ ‘MRI neck C4, C5, C6 and C7 vertebrae of neck.’ ” He listed the 2005 injury as the basis for his service-connected disability request. Plaintiff's application stated that he was unable to perform the necessary actions of his job, including “ ‘lifting, cannot refurbish cage, put on car,’ ” etc. In the portion of the application inquiring which job functions plaintiff could perform, he stated, “ ‘None for extended period of time.’ ”

In a letter to SCERS dated June 22, 2009, Dr. Seites, the doctor who had written in November of 2008 that plaintiff was not able to work from June 16, 2008, to September 29, 2008, now stated plaintiff “has been continuously disabled from 6/16/2008.” Dr. Seites stated that he had been following plaintiff since 2003, and when plaintiff sustained the neck and back injury in 2004. Dr. Seites stated that since the injury, plaintiff's pain has been increasing and “[h]e is unable to perform tasks that are more than sedentary. This is due to unrelenting intractable pain in neck radiating to arm with paresthesias and numbness in hands. He has cervical disc disease.” Dr. Seites also wrote, “The disability is permanent [¶] 6/22/2009.”

On June 24, 2009, plaintiff added a letter to his application stating, “ ‘I Paul Cameron have decided to pursue Service–Connected Disability solely based On [sic ] my neck injury only which [h]as caused cervical disc disease.’ ”

On September 16, 2009, SCERS...