Stratton-King v. Martin

• Decision Date: 24 October 1972
• Docket Number: P,STRATTON-KIN
• Citation: 28 Cal.App.3d 686,104 Cal.Rptr. 916
• Parties: Ericlaintiff and Appellant, v. Robert MARTIN, as Director, etc., Defendant and Respondent. Civ. 30851.
• Court: California Court of Appeals Court of Appeals

Page 916

104 Cal.Rptr. 916

28 Cal.App.3d 686

Eric STRATTON-KING, Plaintiff and Appellant, v. Robert MARTIN, as Director, etc., Defendant and Respondent.

Civ. 30851.

Court of Appeal, First District, Division 1, California.

Oct. 24, 1972.

Berkeley Neighborhood Legal Services, Michael R. Ashburne, Alan S. Koenig, Robert P. Mason, Berkeley, for defendant and appellant.

Evelle J. Younger, Atty. Gen., State of California, Asher Rubin, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

KONGSGAARD, ^* Associate Justice.

Petitioner appeals from a judgment denying a peremptory writ of mandate.

Record

On July 3, 1969, petitioner-appellant, Stratton-King, filed with the Alameda County Welfare Department a written application for aid to the permanently and totally disabled (ATD) pursuant to Wrlfare and Institutions Code sections 11000--11158 and 13500 et seq. and the regulations promulgated thereunder. This application was denied on October 3, 1969 on the grounds a State Medical Review team determined that the claimant's impairments were not severe enough to qualify for ATD.

On December 18, 1969, petitioner filed a request for a fair hearing pursuant to Welfare and Institutions Code section 10950 et seq., contesting denial of his application for ATD benefits, and this hearing was held on January 16, 1970. The transcript of that hearing was introduced in evidence before the lower court; the relevant facts from this transcript will be set forth hereafter.

On February 18, 1970, a proposed decision was rendered by a referee employed by the State Department of Social Welfare (SDSW) denying petitioner's claims for benefits, and that decision was adopted by respondent pursuant to Welfare and Institutions Code section 10959 on March 12, 1970. The decision concluded that petitioner's impairments did not meet the definition of a qualifying disability under Welfare and Institutions Code section 13501 and the Manual of Policies and Procedures--Public Social Services (MPP--PSS) sections 42--203 and 205. This decision was based upon findings that the preponderance of evidence did not establish a significant physical impairment nor impairments permanent in nature since they were medically remediable.

Petitioner claimed that these findings were not supported by the evidence, and thereafter filed a petition for a writ of mandate in the Alameda County Superior Court asking that respondent, Director of the California State Department of Social Welfare, be ordered to set aside his decision denying petitioner benefits under the aid to the permanently and totally disabled ATD program. After a hearing on the petition the trial judge discharged the alternative writ of mandate and denied the peremptory writ. This appeal follows.

The record indicates that in February of 1967 while appellant was lifting weights, he suffered a back injury which caused him to terminate his employment as a research assistant in July of 1967. Appellant was examined by several doctors concerning his back problem, and their findings are dealt with hereafter.

Appellant's contentions on appeal:

I. Certain medical reports were improperly considered by the referee.

II. There was no substantial evidence to support respondent's findings.

III. A finding of medical remediability will not support a denial of ATD benefits when petitioner is unable to obtain medical remedies without ATD benefits.

I

Appellant contends that of the six medical reports found in the record, four were improperly considered by the hearing referee because the reports were based on examinations made more than three months prior to his application for aid in July of 1969.

Public Social Services Regulations section 42--211--1 states in relevant part: 'To be valid, medical reports shall be based on medical examinations completed no earlier than three months prior to date of application, except when another examination would be a hardship for the individual and the ATD Review Section determines that the existing report is reasonably recent and the condition reported is not likely to have improved.'

The six medical reports placed on record consisted of the following: (1) T. W. Wilkins, M.D., a general practitioner, dated January 9, 1968; (2) W. B. Sheppard, M.D., an orthopedist, dated January 22, 1968; (3) D. N. Browning, M.D., an orthopedist, dated June 7, 1968; (4) Highland Clinic, dated July 16, 1969; and (5) A. Hambly, M.D., internal medicine, dated July 10, 1969; and (6) Frederick F. Boyes, M.D., psychiatrist, dated October 28, 1969.

The basis for appellant's objection is that under Public Social Services Regulation section 42--211--1 no medical report is valid unless based on medical examinations made no earlier than three months prior to the date of application. Since the application here was made on July 3, 1969, only the medical report of A. Hambly, M.D. dated July 10, 1969, and the medical summary of Highland Clinic, dated July 16, 1969, would come within this portion of the regulation. ¹

This objection overlooks the second portion of the regulation which creates an exception to the three-month rule, 'when another examination would be a hardship for the individual and the ATD Review Section determines that the existing report is reasonably recent and the condition reported is not likely to have improved.'

Appellant attempts to justify his refusal to submit to an additional current examination on the grounds of the 'obvious pain that he suffered getting to and from such examinations. . . .' Such a factor would justify reliance by the Review Team on existing reports it deemed 'reasonably recent' if it determined the condition was not likely to have improved.

If an applicant refuses to submit to a current medical examination, it would be unreasonable to interpret the regulation in question as excluding available and fairly current medical reports from consideration to the extent they are relevant. This would permit an applicant to submit favorable current reports from his doctors and then refuse to submit to an impartial examination. Any decision contrary to his position would then fail for lack of substantial evidence to support it. Such a decision would place the ATD examination, hearing, and review system in the sole hands of the applicant; such a result was not the intent of the regulation. Under the circumstances the referee properly considered all six available medical reports.

II

We have reviewed the six medical reports and conclude there is sufficient evidence in them to support the findings of no total and permanent physical and/or mental disabilities; moreover, we also conclude there is sufficient evidence in the uncontested reports.

The correct standard of review for the lower court in this administrative mandamus proceeding was to examine the record to see if there was substantial evidence in support of the director's decision. (Rosas v. Montgomery (1970) 10 Cal.App.3d 77, 86, 88 Cal.Rptr. 907; County of Contra Costa v. Social Welfare Board (1962) 199 Cal.App.2d 468, 473, 18 Cal.Rptr. 573; see also Welf. & Ins.Code § 10962 and Code of Civil Procedure § 1094.5.) ² The Director's decision was to the effect that appellant did not have a permanent and total disability within Public Social Services Regulation section 42--203 et seq. which read as follows:

'42--203 DEFINITION OF PERMANENT AND TOTAL DISABILITY

1. General Requirement

'The applicant shall have a major medically verifiable physical, mental or emotional impairment or combination of impairments. These impairments shall be permanent and total and substantially prevent him from engaging in a useful occupation within his competence, such as gainful employment or homemaking. A useful occupation may be seasonal if performed regularly each year.'

'42--302.21 Permanent Disability

'For the disability to be considered permanent, the impairment(s) of major importance must be expected to continue throughout the lifetime of the individual; that is: (1) likely to be of a long continued or indefinite duration or in a terminal state; and (2) unlikely to improve through any known and generally accepted medical treatment or be diminished through such treatment to the extent that it ceases to be of major importance, even though partial improvement may be expected.

'The fact that vocational rehabilitation or work training is or may be a...