Mansell v. Board of Administration

• Decision Date: 28 November 1994
• Docket Number: No. B069394,B069394
• Citation: 30 Cal.App.4th 539,35 Cal.Rptr.2d 574
• Court: California Court of Appeals Court of Appeals
• Parties: , 95 Ed. Law Rep. 315 Harnethia MANSELL, Plaintiff and Appellant, v. BOARD OF ADMINISTRATION OF the PUBLIC EMPLOYEES' RETIREMENT SYSTEM, Defendant and Respondent.

Page 574

35 Cal.Rptr.2d 574

30 Cal.App.4th 539, 95 Ed. Law Rep. 315

Harnethia MANSELL, Plaintiff and Appellant, v. BOARD OF ADMINISTRATION OF the PUBLIC EMPLOYEES' RETIREMENT SYSTEM, Defendant and Respondent.

No. B069394.

Court of Appeal, Second District, Division 3, California.

Nov. 28, 1994.

[30 Cal.App.4th 541] Harnethia Mansell, in pro. per., for plaintiff and appellant.

Richard H. Koppes, Gen. Counsel and Richard B. Maness, Senior Staff Counsel, for defendant and respondent.

KLEIN, Presiding Justice.

Plaintiff and appellant Harnethia Mansell (Mansell), in propria persona, appeals a judgment denying her petition for writ of mandamus (Code Civ.Proc., § 1094.5) against defendant and respondent Board of Administration of the Public Employees' Retirement System (PERS) (hereafter referred to as the Board).

The issue is not Mansell's basic entitlement to retirement benefits but only whether she is eligible for enhanced benefits. We address whether Mansell was injured while performing "particularly hazardous and dangerous" duties, which would entitle her to an enhanced retirement allowance. (Gov.Code, § 21292.6.) ¹

Because the trial court properly concluded the injury was not sustained during a particularly hazardous or dangerous activity, the judgment is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

Mansell became a state safety member of PERS on January 1, 1983 by virtue of state employment. At the relevant time she was employed by the Department of Corrections as an academic teacher at the California Institution for Men at Chino (Chino). In addition On Friday, March 1, 1985, Mansell injured her back while moving boxes from one location to the other within Chino. The boxes contained articles which she would not allow inmates to assist her to move as they contained objects such as pencils and scissors which could be used as weapons. Mansell suffered pain in her back and stomach but continued moving the boxes on Friday and rested over the weekend. The moving resumed the following week and it was not until Thursday that she received treatment for her backache.

to the usual teaching duties, teachers in Mansell's job specification were required to maintain control and discipline in the classroom, controlling all materials and equipment which might be used as weapons.

Mansell applied for industrial disability retirement in March 1986 based on an orthopedic injury to her back. After review of medical evidence, PERS granted the application on that basis and Mansell retired effective February 28, 1987.

Mansell's retirement allowance was calculated pursuant to section 21292.6, which limited her retirement allowance to what she would have received as retirement for service at age 55.

Mansell objected to the calculation of her allowance and requested the allowance be calculated according to section 21292.5, which authorizes industrial disability allowance equal to 50 percent of final compensation or equal to service retirement allowance, whichever is greater.

PERS determined Mansell met the requirements for application of section 21292.6 and did not come within any of the exceptions to the operation of that statute. She did not claim she was injured as a direct consequence of a violent act perpetrated upon her person. Further, the injury did not occur during the performance of "particularly hazardous and dangerous" duties, which is a prerequisite to recovery under section 21292.5.

Mansell filed an administrative appeal in which she was represented by counsel. Following an evidentiary hearing at which Mansell testified, the administrative law judge (ALJ) rendered a proposed decision rejecting Mansell's application for recalculation of her industrial disability retirement allowance pursuant to section 21292.5 and affirming PERS's calculation of the retirement allowance pursuant to section 21292.6. The Board adopted the ALJ's proposed decision as its decision in the matter.

On August 25, 1989, Mansell filed a petition for writ of administrative mandate against the Board in the superior court. She sought review of the Board's determination with respect to her industrial disability retirement allowance. Relying on the principle that pension legislation is to be liberally construed, Mansell contended she was exempt from section 21292.6. She argued she came within the ambit of section 21292.5 because she was injured while moving boxes which could not be moved by the inmates in that they contained potentially dangerous instruments.

In opposition, the Board argued "particularly hazardous and dangerous" duties within the meaning of section 21292.6 do not include speculative potential hazards and dangers, the circumstances surrounding Mansell's injury were not particularly hazardous and dangerous for a Department of Corrections teacher, and Mansell's actions at the time of injury indicate she did not believe she was engaging in particularly hazardous and dangerous activity during that period, notwithstanding her later assertions to the contrary.

The matter was heard May 20, 1992. Utilizing the independent judgment test, the trial court ruled the weight of the evidence supported the Board's findings that Mansell's injury occurred "during the period of normal duty and not during a particularly hazardous or dangerous time as is required for enhanced disability retirement benefits[.]"

Mansell timely appealed the judgment denying her petition for writ of mandate.

CONTENTIONS

Mansell, who is prosecuting this appeal in propria persona, contends she is entitled to industrial disability benefits pursuant to section 21292.5. She also argues her counsel "was ill prepared to the point of default" and

"very pertinent information was never considered in the decision of this case."

DISCUSSION

1. The relevant statutes.

Mansell contends she falls within one of the exceptions set forth in section 21292.6 and therefore her disability retirement allowance should be based on section 21292.5.

At the relevant time, section 21292.6 stated in pertinent part: "Notwithstanding any other provision of this part, the industrial disability retirement allowance of a member whose membership commenced after January 1, 1980, ... shall not exceed the service retirement allowance that would be payable as a result of service in that category of membership if the member's service had continued to age 55, if a ... state safety ... member.... [p] This section shall not be applicable to ... a member whose disability results from an injury which is a direct consequence of a violent act perpetrated upon his person or occurs during the performance of those portions of his duties which are particularly hazardous and dangerous." (Stats.1984, ch. 280, § 24, p. 1482, italics added.) ²

Further, section 21292.5 provides: "Upon retirement of a state safety member for industrial disability he shall receive a disability retirement allowance of 50 percent of his final compensation plus an annuity purchased with his accumulated additional contributions, if any, or, if qualified for service retirement, he shall receive his service retirement allowance if such allowance, after deducting such annuity, is greater."

2. Standard of review.

The role of the trial court here was to exercise its independent judgment on the evidence in the case. (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 44-45, 112 Cal.Rptr. 805, 520 P.2d 29; Heaton v. Marin County Employees Retirement Bd. (1976) 63 Cal.App.3d 421, 426, 133 Cal.Rptr. 809.) It is then "our task ... to review the record to determine whether the trial court's findings are supported by substantial evidence. [Citation.] The trial court's decision should be sustained if it is supported by credible and competent evidence. [Citation.]" (Wieser v. Board of Retirement (1984) 152 Cal.App.3d 775, 783, 199 Cal.Rptr. 720.)

However, the determination whether Mansell falls within an exception to section 21292.6 so as to qualify for enhanced benefits under section 21292.5 requires interpretation of the statute, which is a question of law for this court's independent determination. (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 699, 170 Cal.Rptr. 817, 621 P.2d 856; Shoban v. Board of Trustees (1969) 276 Cal.App.2d 534, 541, 81 Cal.Rptr. 112.) In the analysis, we are guided by the principle that " 'pension legislation must be liberally construed and applied to the end that the beneficent results of such legislation may be achieved. Pension provisions in our law are founded upon sound public policy and with the objects of protecting, in a proper case, the pensioner and his dependents against economic insecurity. In order to confer the benefits intended, such legisl...