McCoy v. Board of Retirement

• Decision Date: 29 July 1986
• Docket Number: No. B014820,B014820
• Citation: 183 Cal.App.3d 1044,228 Cal.Rptr. 567
• Court: California Court of Appeals Court of Appeals
• Parties: Alvin McCOY, Petitioner and Respondent, v. BOARD OF RETIREMENT OF the COUNTY OF LOS ANGELES EMPLOYEES RETIREMENT ASSOCIATION, Respondent and Appellant.

Page 567

228 Cal.Rptr. 567

183 Cal.App.3d 1044

Alvin McCOY, Petitioner and Respondent, v. BOARD OF RETIREMENT OF the COUNTY OF LOS ANGELES EMPLOYEES RETIREMENT ASSOCIATION, Respondent and Appellant.

No. B014820.

Court of Appeal, Second District, Division 7, California.

July 29, 1986.

Review Denied October 22, 1986.

DeWitt W. Clinton, Co. Counsel, Milton J. Litvin, Asst. Co. Counsel, Daniel E. McCoy, Principal Deputy Co. Counsel, Los Angeles, for respondent and appellant.

Lewis, Marenstein & Kadar, and Thomas J. Wicke, Los Angeles, for petitioner and respondent.

Lemaire & Faunce, and Edward L. Faunce, Los Angeles, for amicus curiae on behalf of petitioner and respondent.

THOMPSON, Associate Justice.

This is an appeal from the issuance of a writ of mandate compelling the Board of Retirement of the Los Angeles County Employees Retirement Association (Board, or Retirement Board) to issue a service-connected disability retirement allowance to Alvin McCoy. The Board, which had granted McCoy a nonservice-connected disability retirement, denied the disability was service-connected. The trial court found that McCoy established by a preponderance of the evidence that his hypertension was service-connected because it arose out of and in the course of his employment, as required by Government Code section 31720. ¹ The Board contends that the trial court committed reversible error in admitting two stipulations between McCoy and his employer, the County of Los Angeles (County), from McCoy's Workers' Compensation Appeals Board (WCAB) action, to the effect that 75 percent of the aggravation to McCoy's hypertension was caused by industrial stress. ²

We conclude that the admission of the stipulations was not error and, even if error, was not prejudicial because the stipulations were not necessary to the judgment which was amply supported by other evidence. (See Rue-Ell Enterprises, Inc. v. City of Berkeley (1983) 147 Cal.App.3d 81, 91, 194 Cal.Rptr. 919.) We shall affirm.

I FACTUAL & PROCEDURAL BACKGROUND

McCoy began working for the County in 1957 as a hospital clerk. He served in the military between 1958 and 1962, and then returned to his position at the hospital. In 1965 or 1966, he was promoted to the position of tram operator. In 1969, he was transferred to the x-ray department, as an intermediate typist-clerk, where he first encountered job stress when he was "chewed out" about three times a week when x-ray records could not be located.

After becoming a warrant investigator in August 1972, McCoy encountered job stress on a daily basis when irate welfare recipients, who claimed their checks were lost or stolen, physically threatened him for refusing to issue duplicate checks. He also received verbal abuse from merchants, angered when informed that checks were stolen. Whenever he encountered such abuse, he would suppress his own feelings.

In March 1976, McCoy's supervisor was replaced by Wright, and McCoy joined in a group grievance against Wright's new work procedures. Thereafter, Wright began intimidating McCoy by checking his work very closely for errors and by once calling McCoy's wife after McCoy had called in to say he would be late due to car trouble. Wright suspended McCoy for three days, which was later reduced to three hours, when McCoy, citing County policy, refused to go into the field during stormy weather. After receiving the suspension, McCoy became "really upset," could not control his emotions, and was crying. He went to the Occupational Health and Affirmative Action offices where he was advised to file a grievance on the ground of race discrimination.

McCoy experienced stress from his dealings with Wright. When Wright gave McCoy a work performance evaluation of "Improvement Needed," McCoy protested and obtained a "Competent" rating. When McCoy discovered a welfare recipient who was receiving aid under two different names, Wright refused to give McCoy the recommended letter of commendation. On another occasion, when McCoy discovered a recipient using two different names, the department personnel chief ordered Wright to give McCoy the letter of commendation. When McCoy was to receive his 20-year service pin. Wright walked up to him with it and just threw it to him.

McCoy was diagnosed as having hypertension in 1977, for which he takes medication. In 1978 or 1979, he began experiencing headaches, dizziness, chest pains and sleeplessness. Prior to 1977, McCoy, who is 5 feet 7 1/2 inches tall, weighed about 180 pounds; in 1978 he weighed 227 pounds.

McCoy filed an Application for Adjudication of Claim with the WCAB in 1978, alleging that he sustained an injury from the stress of employment. On April 22, 1980, McCoy and the County entered into stipulations that he did sustain an injury to his psyche and vascular system in the form of aggravated hypertension, 75 percent of which was due to industrial stress. ³ The Thereafter, the County's Department of Personnel Rehabilitation Section determined that McCoy's job as a warrant investigator was incompatible with the restriction from emotional stress. McCoy was given the choices of taking a less stressful job, applying for service-connected disability retirement, or waiving any benefits he might be entitled to because of his condition but remain on the job. McCoy asked for other suitable work within the County, but none was found. McCoy was eventually provided with rehabilitation training as a polygraph operator.

parties also stipulated that he avoid heavy physical work and emotional stress. On June 11, 1980, the workers' compensation judge issued an award pursuant to the stipulations.

McCoy quit the County in October 1980, and filed an application for a service-connected disability retirement pension before the Board, alleging that he was disabled due to hypertension and a psychiatric illness which were caused by his employment. The Board denied a service-connected disability retirement pension, but granted a nonservice-connected disability retirement pension.

At the administrative hearing on McCoy's appeal, the referee considered conflicting written medical reports, but excluded the WCAB action stipulations. ⁴ McCoy presented psychiatric reports by Doctors Bloch and Singer, who concluded that his psychiatric disability was "slight to moderate" and "absent to minimal," respectively. The Board presented psychiatric reports by Dr. Boags, who concluded that McCoy was "experiencing great stress reportedly stemming from a hostile work environment, and an inability to cope successfully with the perceived harassment"; and by Dr. Gwartz, who concluded that McCoy's objective factors of disability were minimal with no evidence that work stress caused a specific psychiatric impairment. The referee concluded that there was no preponderance of the evidence showing a psychiatric disability: "Even Dr. Bloch doesn't say so. Dr. Singer finds the disability to be absent to minimal. Dr. Boags doesn't persuade us to find disability. Dr. Gwartz clearly says no disability."

McCoy presented three medical reports concerning his hypertension disability. Dr. Dahlgren found that employment aggravated McCoy's hypertension, without explaining the extent of aggravation, and concluded that the aggravation was 100 percent job related. Dr. Markovitz also found that employment aggravated the hypertension, and concluded that 25 percent of his disability was a result of job stress. Dr. Washington attributed the hypertension to anxiety stemming from job stress and obesity, but concluded that there was no obvious external cause of the hypertension.

The Board presented two medical reports concerning McCoy's hypertension disability. Dr. Gwartz concluded that the hypertension was not due to employment stress but was solely caused by obesity and an inherited predisposition to developing the disease. Dr. Holloman concluded that 50 percent of the hypertension was caused by employment related stresses.

The referee concluded that the medical reports, particularly Dr. Markovitz's and Dr. Washington's, were "persuasive enough to uphold the Board's initial finding" of disability due to hypertension. However, the referee found that this disability did not arise out of and in the course and scope of employment, and denied a service-connected disability pension: "When we look to the causation issue as it relates to the disability caused by hypertension, we note that: Dr. Markovitz attributed only twenty-five percent to work stress. Doctor Gwartz found none of the disability was so attributable; Dr. Holloman's view was that fifty percent was the The referee's findings were adopted by the Board on September 22, 1983.

result of work; Dr. Washington offers no view on causation and Dr. Dahlgren found it was entirely caused by work. If we average these views out we must conclude that Mr. McCoy has not proved, by a preponderance of the evidence, that his hypertensive disability was substantially caused by work stress." ⁵

At the hearing on McCoy's petition for writ of mandate, the trial court properly undertook to base its findings on its independent judgment of the weight of the evidence in the administrative record. (Traub v. Board of Retirement, supra, 34 Cal.3d at p. 797, 195 Cal.Rptr. 681, 670 P.2d 335; Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 45-46, 112 Cal.Rptr. 805, 520 P.2d 29.) The trial court found that the referee had erroneously excluded the stipulations and admitted them in evidence, over the Board's objection, on the ground of relevance. (Code Civ. Proc. § 1094.5, subd. (e).) ⁶

The court found that the weight of the evidence supported the conclusion that the hypertension was service-connected. Judgment was entered and the writ was issued. This appeal followed.

II ISSUE

In the administrative mandamus proceeding below, the Board objected to McCoy's offer to introduce the WCAB action stipulations into evidence, on the ground that the...