Wieser v. Board of Retirement

• Decision Date: 05 March 1984
• Docket Number: No. 68112,68112
• Citation: 152 Cal.App.3d 775,199 Cal.Rptr. 720
• Parties: Robert WIESER, Petitioner and Appellant, v. BOARD OF RETIREMENT OF the COUNTY OF LOS ANGELES EMPLOYEES RETIREMENT ASSOCIATION, Respondent. Civ.
• Court: California Court of Appeals Court of Appeals

Page 720

199 Cal.Rptr. 720

152 Cal.App.3d 775

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

Civ. No. 68112.

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

March 5, 1984.

Lemaire, Faunce & Katznelson and Mark Ellis Singer, Los Angeles, for petitioner and appellant.

Donald K. Byrne, Chief Deputy County Counsel, and Rafael A. Ongkeko, Deputy County Counsel, Los Angeles, for respondent.

LUI, Associate Justice.

Appellant Robert Wieser appeals from the judgment of the superior court denying his petition seeking the issuance of a peremptory writ of mandate compelling the respondent Board of Retirement of the County of Los Angeles Employees Retirement Association (Board) to grant him a service-connected disability allowance. For the reasons indicated below, we reject appellant's contentions on appeal and affirm the judgment entered below.

FACTUAL BACKGROUND AND PROCEEDINGS BELOW

Appellant was employed by the County of Los Angeles as a fire-fighter from September of 1952, until January 1978.

Appellant applied for a nonservice-connected disability allowance from the Board pursuant to Government Code section 31720. ¹ By a letter dated January 8, 1980, the Board notified appellant through his counsel that his "application for disability retirement as a Safety Member because of a service-connected disability, was presented to the Board of Retirement at its meeting on January 2, 1980, and an order was made, finding that he is disabled but that his disability is not service-connected. [p] He was, however, retired from service, under an unmodified nonservice-connected disability retirement allowance, effective June 10, 1979. [p] If he wishes to appeal this decision, he has 30 days from the receipt of this letter to do so. Enclosed is a copy of our Hearing Procedures." (Emphasis in original.)

The hearing procedures mentioned in the Board's letter to respondent state as follows: "PROCEDURES FOR DISABILITY RETIREMENT HEARINGS [p] 1. When a request for a hearing is received by the Board ... the matter shall be referred for hearing de novo before a Board-appointed referee." (Emphasis added.)

On the same date as the letter, appellant's counsel wrote the secretary of the Board as follows: "We represent ... [appellant] in his request for a disability retirement, and request that the issue of whether the applicant should be granted a service-connected disability retirement allowance be referred for a hearing by a Referee of the Board of Retirement."

The requested hearing commenced on June 24, 1980. During the initial phase of the hearing, the subject of the scope of the hearing was discussed between the referee and counsel for appellant and the Board. Although the referee indicated that he did not feel that the Board was correct in its interpretation of the scope of a de novo hearing, it was evident that the referee, and both counsel for the parties, were aware that the hearing would be conducted on the basis of determining whether appellant was permanently disabled and not merely whether his disability was service-connected. ²

Subsequent to the hearing, the referee issued a proposed findings of fact and proposed decision. Finding No. III states:

"The applicant was not and has not been incapacitated for the performance of his duties." The referee thereupon recommended that the "application for disability retirement either service-connected or nonservice-connected be denied."

On July 22, 1980, Referee Gaylord wrote the secretary of the Board, stating: "I have received and carefully considered a copy of the [appellant's] Objections to the ... Proposed Finding of Fact and Proposed Decision.... [p] I agree with the [appellant's] first objection ... that the hearing officer should not determine whether the applicant is permanently incapacitated where the Board has decided that he is. Prior to the Board's Memorandum ... I had refused to make such a determination. However upon receipt of a memorandum from the Board to the contrary, ... I felt that I could not ignore the Board's decision even though I disagreed with the conclusion. I agree with the [appellant] when he says ... and with Mr. Faunce [appellant's counsel] when he says ... quoting from the latter: [p] '... The term de novo describes that nature of the hearing granted, but not the scope of the hearing....' [p] As to the [appellant's] second objection at pages 9 et seq. of his Objections, although, as I said at page 12 line 9-10 of the Summary of Evidence: [p] '... In this case I believe the evidence is sufficient to sustain a finding of permanent incapacity....' [p] I still believe the weight of the evidence is to the contrary. The applicant does not discuss the extensive detailed discussion by Dr. Gwartz quoted at pages 20-21 of the Summary of Evidence, or why he asked for a transfer on the day before his last day at work, as noted at page 18, lines 17-25 of the Summary of the Evidence if he was incapacitated for duty." (Emphasis in original.)

On October 1, 1980, the Board considered the referee's summary of evidence, suggested findings of fact, and suggested conclusions of law regarding appellant's application for disability retirement. The Board accepted the report and adopted the finding of the referee that appellant was not disabled and denied appellant a disability retirement allowance. Appellant was notified through his counsel of the Board's October 1, 1980 decision by a letter dated November 12, 1980.

Subsequently, appellant filed a petition for writ of mandate in the superior court contending that the Board's finding that he was not permanently incapacitated for the performance of his job duties was a prejudicial abuse of discretion and that the Board did not proceed as required by law. The petition for writ of mandate contended that the Board could not as a matter of law instruct its referee to reconsider its prior position in granting a nonservice-connected disability retirement. Appellant also contended that respondent's finding that appellant was not permanently incapacitated was not supported by the weight of the evidence.

The petition for writ of mandate was heard by the trial court on September 28, 1981. Following a hearing on the petition, the court denied appellant's petition. Subsequently, findings of fact and conclusions of law were issued and a judgment denying appellant's peremptory writ of mandate was entered. Appellant filed a timely notice of appeal.

APPELLANT'S CONTENTIONS ON APPEAL

1. The scope of the de novo hearing was limited to the question of whether appellant's disability was service-connected because the Board had already granted appellant a nonservice-connected disability retirement allowance.

2. The trial court's determination that appellant was not permanently incapacitated is not supported by substantial evidence.

DISCUSSION

I The Question of Appellant's Permanent Disability Was a Proper Subject of the Hearing Conducted by the Board Appointed Referee

A. No Violation of Appellant's Due Process Rights to a Fair Hearing

Appellant claims that he was denied due process and a fair hearing because the Board improperly instructed the referee to determine the question of appellant's incapacity in spite of the fact that it previously granted him a nonservice-connected disability pension. We disagree.

The Board's procedures for disability retirement hearings specify that when a hearing is requested by an applicant, it shall be referred for a hearing "de novo before a Board-appointed referee." In REA Enterprises v. California Coastal Zone Conservation Com. (1975) 52 Cal.App.3d 596, 612, 125 Cal.Rptr. 201, Division Five of this District had occasion to address the interpretation of the term "de novo." The court stated: "The leading case in California on this point is Buchwald v. Katz, 8 Cal.3d 493 [105 Cal.Rptr. 368, 503 P.2d 1376]. In Buchwald, the Supreme Court affirmed its earlier decision of Collier & Wallis, Ltd. v. Astor, 9 Cal.2d 202 , where it had construed the language of section 19 of the Private Employment Agency Law (later codified in Lab.Code, § 1700.44). [Fn. omitted.] In the Collier & Wallis case, the court discussed the term 'de novo' as follows (at p. 205 ): 'A hearing de novo literally means a new hearing, or a hearing the second time. (18 Cor.Jur. 486.) Such a hearing contemplates an entire trial of the controversial matter in the same manner in which the same was originally heard. It is in no sense a review of the hearing previously held, but is a complete trial of the controversy, the same as if no previous hearing had ever been held. It differs, therefore, from an ordinary appeal from an inferior to an appellate body where the proceedings of the hearing in the inferior court are reviewed and their validity determined by the reviewing court. A hearing de novo therefore is nothing more nor less than a trial of the controverted matter by the court in which it is held. The decision therein is binding upon the parties thereto and takes the place of and completely nullifies the former determination of the matter.... [T]he section simply gives to the party dissatisfied with the determination of the labor commissioner a hearing of the matter ... before the superior court. The court hears the matter, not as an appellate court, but as a court of original jurisdiction, with full power to hear and determine it as if it had never been before the labor commissioner. The act does not, therefore, in fact or in law confer appellate jurisdiction upon the superior court, but does provide a legal forum where either party to the controversy, in case he is dissatisfied with the determination of the labor commissioner, may have his rights adjudicated.' "

REA, supra, 52 Cal.App.3d 596, 125 Cal.Rptr. 201, dealt with the question of the scope of a hearing de novo by a state commission after a hearing by a regional...