Opinion
H043505
07-28-2017
LEANN GRIFFIN, Plaintiff and Appellant, v. BOARD OF ADMINISTRATION FOR THE FEDERATED CITY EMPLOYEES' RETIREMENT SYSTEM, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 114CV272479)
I. INTRODUCTION
Appellant Leann Griffin was employed by the City of San Jose (City) as a staff technician from January 2000 to May 2006. Griffin applied for a service-connected disability retirement in 2005 based on her claim that had sustained carpal tunnel syndrome while performing her job duties. Griffin did not proceed with her 2005 application. In 2011 Griffin submitted a second application for a service-connected disability retirement, based on her claim that she had sustained thoracic outlet syndrome and myofascial pain syndrome as a result of her job duties with the City.
Respondent Board of Administration for the Federated City Employees' Retirement System (Board of Administration) denied Griffin's 2011 application for a service-connected disability retirement. Griffin challenged the denial by filing a petition for writ of administrative mandate, which the trial court denied on the ground that the weight of the evidence supported the Board of Administration's decision. The trial court found that the evidence showed that Griffin did not meet the City's standard for a service-connected disability retirement, as set forth in San Jose Municipal Code section 3.28.1260, because she was not permanently incapacitated for the performance of her duties as a staff technician. For reasons that we will explain, we determine that the trial court's finding is supported by substantial evidence, and therefore we will affirm the judgment entered in the Board of Administration's favor.
II. GOVERNING MUNICIPAL CODE PROVISIONS
A City employee's eligibility for a service-connected disability retirement benefits is governed by the provisions of chapter 3.28 of the San Jose Municipal Code. (Meyers v. Board of Administration etc. (2014) 224 Cal.App.4th 250, 257 (Meyers).)
Chapter 3.28 provides that the Board of Administration must grant an application for a service-connected disability retirement "[i]f the medical reports and other available evidence and information show to the satisfaction of the retirement board that the member is incapacitated for the performance of his [or her] duty, and if such member is otherwise eligible to retire for disability pursuant to the provisions of this Part 10 [Retirement for Disability]." (San Jose Mun. Code, § 3.28.1260, italics added.)
The term "incapacity for the performance of duty" in San Jose Municipal Code section 3.28.1260 is defined as "disability of a member, short of death, of permanent or extended and uncertain duration, occurring while such member is an employee of the city in the federated city service of the city, as a result of injury or disease . . ., which renders the member physically or mentally incapable of continuing to satisfactorily assume the responsibilities and perform the duties and functions of the position then held by him [or her] and of any other position in the same classification of positions to which the city may offer to transfer him [or her], as determined by the retirement board on the basis of competent medical opinion. It does not mean mere physical or mental inability to assume said responsibilities or perform said duties." (San Jose Mun. Code, §3.28.1210, subd. (A).)
The term "service-connected disability" in San Jose Municipal Code section 3.28.1280 is defined as "a disability, as above defined, of a member which arises and results from an injury or disease arising out of and in the course of the federated city service, rendered by the member, for which he is entitled to credit under the provisions of this system." (San Jose Mun. Code, § 3.28.1210, subd. (C).)
III. FACTUAL AND PROCEDURAL BACKGROUND
A. City Employment
Griffin began working for the City in January 2000 as a staff technician in the city manager's office. The essential functions of that position, as described by the city manager, included answering the public outreach manager's telephone and taking messages; maintaining the public outreach manager's calendar through Microsoft Outlook; preparing, formatting, and/or editing documents and agendas for the public outreach office; maintaining the filing system for the public outreach office; and serving in the rotation pool for relieving the reception desk in the city manager's office.
The record reflects that in January 2005 Griffin notified the City that she had been injured on the job and a workers' compensation claim was initiated. Griffin's stated injury was "cumulative trauma" to both hands due to "typing, holding binders, lifting [and] carrying items."
Edward Damore, M.D., performed carpal tunnel surgery on Griffin's right hand in July 2005 and on her left hand in October 2005. After each surgery, Griffin returned to work for a brief period with the City accommodating her physician's work restrictions. Griffin returned to work after the second surgery from February 2, 2006, to March 2, 2006, with work restrictions of no filing, handling binders, or typing. Griffin never returned to work for the City after March 2, 2006.
The City sent Griffin a May 26, 2006 letter advising her that as of April 11, 2006, she had exhausted all of her available leave time, including temporary disability leave, "comp time," vacation time, sick leave, and unpaid leave. The City noted in the letter that Griffin's physician had indicated that Griffin was unable to return to work until June 30, 2006. The City further advised Griffin that pursuant to the Confidential Employees' Organization memorandum of agreement she was considered to have voluntarily resigned, effective May 30, 2006, because she was unable to return to work after the expiration of all leave time. A "Notice of Separation from City Service" stated that Griffin's last day on payroll was April 11, 2006.
In his June 30, 2006 medical report to the City in connection with Griffin's workers' compensation claim, Dr. Damore stated that Griffin was "[s]tatus post bilateral carpal tunnel release/pronator release," had left wrist pain, and reached "her maximal medical improvement" on June 30, 2006. Dr. Damore imposed work restrictions on Griffin, including "[f]ive minutes of typing/writing per hour. No lifting or carrying more than 3 pounds. No repetitive use of her bilateral hands." Dr. Damore did not believe that Griffin could return to her previous job as a technician due to her disability, which he concluded was work-related due to the "significant amount of keyboarding she performed" at work.
B. First Application for a Service-Connected Disability Retirement
In September 2005 Griffin, age 33, applied for a service-connected disability retirement. Her application indicated that her disabilities were "carpal tunnel and pronator syndrome." At that time, Griffin was still employed by the City.
Griffin was evaluated by the Board of Administration's physician, Rajiv Das, M.D., who issued a report dated September 21, 2006. Dr. Das concluded that "Ms. Griffin's symptoms are primarily subjective in nature and the clinical findings are also subjective in nature. The medical evidence such as the nerve conduction studies do not support the diagnosis of a severe carpal tunnel syndrome and is not commensurate with the degree of disability described by Ms. Griffin." Dr. Das also stated that Griffin had work restrictions, including an ergonomic work station, avoiding forceful gripping, and taking "a two-minute microbreak for every 10 minutes of continuous computer use."
The city manager reported to the Board of Administration in a September 13, 2006 memorandum that the work restrictions stated by Dr. Das could have been accommodated at the time Griffin was separated from city service in April 2006, since the restrictions "would have minimally impacted" her ability to perform the essential functions of the staff technician position.
In October 2006 Griffin wrote a letter to the Board of Administration that states in its entirety: "Please remove my name from the October 18, 2006 Federated Disability Committee agenda. I require time to review the memorandum and medical reports regarding my application for a service-connected disability retirement. [¶] I will notify your office to reschedule the hearing date."
In November 2006 the Federated Disability Committee "discontinued" Griffin's first application for a service-connected disability retirement due to "the inability to communicate with [Griffin] despite multiple attempts to do so." The record does not show that Griffin ever attempted to reschedule the hearing date on her first application for a service-connected disability retirement.
C. Second Application for a Service-Connected Disability Retirement
Joel S. Saal, M.D. performed a new injury evaluation in February 2007 regarding Griffin's complaints of job-related injury to her upper extremities. Dr. Saal stated in his February 13, 2007 evaluation that Griffin had thoracic outlet syndrome, recommended further studies, and suggested that Griffin was a candidate for surgery.
Orthopedic surgeon G. James Avery II, M.D. performed a left first rib resection on Griffin in May 2008 due to his preoperative diagnosis of thoracic outlet syndrome. In February 2010 Nicole Chitnis, M.D. reported that Griffin felt she had improved 75 percent since 2008, and Griffin was continuing to improve. However, Dr. Chitnis also reported that Griffin had "lost 50% of her pre-injury capacity for lifting, gripping, grasping, pushing, pulling, torque[ing], and fine manipulation with bilateral upper extremities," and could "not return to her old job as a clerk."
In April 2010 Michael C. Post, M.D. provided a supplemental agreed medical report in connection with Griffin's workers compensation claim. Dr. Post reported that his diagnoses were chronic pain syndrome, reactive depression, and situational insomnia. Griffin's condition was "permanent and stationary" and, although Dr. Post had not reviewed the job description for Griffin's staff technician position, he believed that based on her report and "the persistent nature of her symptoms" she could not return to "her usual and customary type [of] work." In August 2010 Griffin was examined by a hand and elbow surgeon, H. Relton McCarroll M.D., regarding her continuing upper extremity symptoms. Dr. McCarroll reported that Griffin's upper extremities were normal except for surgical scars.
In January 2011 Griffin submitted a second application for a service-connected disability retirement. She stated in the application that her "disability/injured body part[s]" were "thoracic outlet syndrome [and] myofascial pain syndrome." Responding to the City's request that he "provide permanent work restrictions for [myofascial pain syndrome]," Dr. Avery, the orthopedic surgeon who had performed thoracic outlet surgery in 2008, reported on July 7, 2011, that Griffin "can get better." In a separate report dated July 6, 2011, Dr. Avery stated that Griffin "has almost reached a plateau, but I think she can improve with a better posture vest." However, in January 2012 Dr. Avery reported that Griffin remained " 'stuck' in a pain syndrome" and had made "no progress" in the past six months.
After Griffin submitted her second application for a service-connected disability retirement, Dr. Das reported to the Board of Administration that he had examined Griffin, now age 40, and reviewed her medical records. Dr. Das concluded in his report that "there are no anatomic or physiologic findings that would lead to incapacity. Therefore, no restrictions based [on] incapacity are provided for the diagnosis of [thoracic outlet syndrome]." Dr. Das also concluded that he could "find no significant relationship between Ms. Griffin's work activities and the diagnosis [of thoracic outlet syndrome] reportedly responsible for her symptoms." Dr. Das noted that "[t]he mechanism of injury is not well described in the medical records and there are no epidemiologic studies describing a relationship between the type of work Ms. Griffin performed and [thoracic outlet syndrome]." In September 2013 the office of the city manager reported that the office would be able to accommodate Griffin as a staff technician, based on her having no work restrictions.
The City's Federated Disability Committee advised the Board of Administration in a February 7, 2014 memorandum that the committee recommended denial of Griffin's second application for a service-connected disability retirement. Based on its review of Griffin's medical records and discussions during a meeting between Griffin's attorney, Dr. Das, and two committee members, the Federated Disability Committee voted to deny Griffin's application "due to the inability to demonstrate disability."
The Board of Administration issued resolution No. 7904 denying Griffin's second application for a service-connected disability retirement after its August 21, 2014 meeting. The Board of Administration stated in the resolution that Griffin had not established by a preponderance of the evidence that she was entitled to a service-connected disability, for the following reasons: (1) "There is insufficient . . . evidence to support a finding that [Griffin] was incapacitated for performance of her duties"; (2) "There is insufficient evidence to support a finding that [Griffin's] medical condition arose out of and in the course of her employment by the City"; (3) "The medical evidence shows that if [Griffin] were to have continued employment with the City of San Jose, [she] would have had no work restrictions provided by the Medical Director for the purposes of Disability Retirement"; and (4) "There is insufficient medical evidence to show that [Griffin's] work restrictions were based on injuries arising out of and in the course of her employment as an employee of the City."
D. Petition for Writ of Administrative Mandate
Griffin filed a petition for writ of administrative mandate in which she sought a writ compelling the Board of Administration to set aside its decision to deny her second application for a service-connected disability retirement and to enter a new decision granting the application. In her points and authorities in support of the writ petition, Griffin argued that the weight of the evidence showed that she met the City's standard for a service-connected disability retirement because her treating physicians had reported that (1) she developed carpal tunnel syndrome due to her employment with the City; and (2) she was permanently impaired and unable to return to work as a staff technician. Griffin further argued that the Board should not have "rubber stamp[ed]" Dr. Das's contrary opinion.
The Board of Administration opposed Griffin's writ petition, contending in its points and authorities that the weight of the evidence supported its decision to deny her application for a service-connected disability retirement. The evidence included, according to the Board of Administration, several medical reports from Griffin's treating physicians showing that she was not permanently incapacitated and could return to work. The Board of Administration also emphasized that the city manager's office had accommodated Griffin's work restrictions after her carpal tunnel surgeries in 2005, and asserted that the city manager's office could have accommodated her again pursuant to Dr. Das's work restrictions in 2006.
E. Trial Court Statement of Decision and Judgment
After holding a hearing on Griffin's writ petition, the trial court issued a tentative statement of decision and proposed judgment on January 29, 2016. The trial court's tentative decision was to deny the writ petition on the ground that the weight of the evidence showed that Griffin "never had a disability 'of permanent or extended and uncertain duration,' " as required by the City's standard for a service-connected disability retirement, either in October 2006 when she "withdrew" her first application for a service-connected disability retirement or in January 2011 when "she reapplied based on new ailments that did not warrant any work restrictions."
Regarding Griffin's claim of disability due to carpal tunnel syndrome, the trial court found that "[t]he fact that [Griffin] withdrew her first application and she decided not to include [carpal tunnel syndrome] in her second application provides a fair inference that her earlier carpal tunnel condition improved." The court also found that the City had accommodated Griffin's work restrictions following carpal tunnel surgery on two occasions, and the City had also attempted to accommodate any subsequent work restrictions authorized by her medical service provider through the time of her resignation in May 2006. The court stated: "The City's repeated efforts to accommodate [Griffin] in her own position with the City further weighs in favor of finding that [she] is not incapacitated for the performance of her duties in her Staff Technician position she then held before her employment separation in 2006."
As to Griffin's second application in 2011 based on disability caused by thoracic outlet syndrome and myofascial pain syndrome, the trial court found that the weight of the medical evidence showed that Griffin was not permanently incapacitated for the performance of her duties by those conditions. Specifically, the trial court found that the medical reports of Dr. Avery and Dr. Chitnis showed that Griffin had improvement after her thoracic outlet surgery in 2008 and her inability to work was temporary. The court also pointed to Dr. McCarroll's 2010 report that on physical examination of Griffin's upper extremities he found no "observable pathology," as well as Dr. Das's similar opinion that diagnostic studies did not reveal "any significant pathology" supporting "anatomic or physiological findings that would lead to incapacity." Further, the court emphasized Dr. Das's opinion that Griffin's condition did not require any work restrictions.
In conclusion, the trial court stated: "[Griffin's] medical records did not show that she was permanently incapacitated in 2006 when she withdrew her initial application, and the fact she applied again four years later based on different ailments confirms that she, in fact, was not permanently incapacitated. Indeed, she was not even permanently incapacitated based on her new ailments because they required no work restrictions."
The trial court further concluded that the weight of the evidence showed that even assuming that Griffin was eligible to retire based on an incapacitating disability, her disability was not service-connected, relying on the opinions of Dr. McCarroll and Dr. Das that her condition was not work-related. The contrary opinion of Dr. Post was found not credible by the court because Dr. Post had not reviewed Griffin's job description and had relied solely on Griffin's self-reporting of her job activities.
F. Decision and Judgment
In the decision and judgment entered on February 22, 2016, the trial court noted that no objections had been made to the tentative decision, and adopted the tentative decision as the statement of decision. The court found that the weight of the evidence supported the Board of Administration's denial of Griffin's application for a service-connected disability retirement and denied Griffin's petition for a writ of administrative mandate. Costs were awarded to the Board of Administration as the prevailing party.
IV. DISCUSSION
On appeal, we understand Griffin to contend that the trial court erred because the weight of the evidence shows that she is permanently incapacitated due to her job injury of carpal tunnel syndrome, and therefore she is eligible for a service-connected disability retirement based on her 2005 application. Alternatively, Griffin argues that in 2006 the City failed to accommodate her work restrictions and instead terminated her employment, and therefore the City is barred from denying her application for a service-connected disability retirement pursuant to this court's decision in Meyers, supra, 224 Cal.App.4th 250. We will begin our evaluation of Griffin's contentions with the applicable standard of review.
A. Standard of Review
Where a retirement board has denied an application for a disability retirement, the applicant may seek review by filing a petition for writ of mandate in the superior court under Code of Civil Procedure section 1094.5. (See County of Alameda v. Board of Retirement (1988) 46 Cal.3d 902, 906.)
"The inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence." (Code Civ. Proc., § 1094.5, subd. (b).)
"Where it is claimed that the findings are not supported by the evidence, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence." (Code Civ. Proc., § 1094.5, subd. (c).)
The trial court is authorized to exercise its independent judgment in reviewing a retirement board's decision to deny an application for a disability retirement because a public employee's right to a retirement benefit is a fundamental vested right. (Dickey v. Retirement Board (1976) 16 Cal.3d 745, 748.) "[W]hen a trial court reviews a final administrative decision that substantially affects a fundamental vested right, the court 'not only examines the administrative record for errors of law but also exercises its independent judgment upon the evidence. . . .' [Citation.]" (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 816, fn. 8 (Fukuda).) "[I]in applying ' "independent judgment,' " a trial court must accord a " 'strong presumption of . . . correctness' " to administrative findings, and that the 'burden rests' upon the complaining party to show that the administrative ' "decision is contrary to the weight of the evidence." ' [Citations.]" (Id. at pp. 816-817.)
On appeal from the trial court's decision, the reviewing court applies a different standard of review. "Even when, as here, the trial court is required to review an administrative decision under the independent judgment standard of review, the standard of review on appeal of the trial court's determination is the substantial evidence test. [Citations.]" (Fukuda, supra, 20 Cal.4th at p. 824.) " 'In a substantial evidence challenge to a judgment, the appellate court will 'consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the [findings]. [Citations.]' [Citation.] We may not reweigh the evidence and are bound by the trial court's credibility determinations. [Citations.] Moreover, findings of fact are liberally construed to support the judgment. [Citation.]" (In re Estate of Young (2008) 160 Cal.App.4th 62, 75-76.) The appellant has the burden of demonstrating that "there is no substantial evidence to support the challenged findings." (Nichols v. Mitchell (1948) 32 Cal.2d 598, 600.)
B. Analysis
The Board of Administration argues that substantial evidence supports the trial court's finding that Griffin is not eligible for a service-connected disability because she was not permanently incapacitated for the performance of her job duties within the meaning of San Jose Municipal Code, section 3.28.1210, subdivision (A). We agree.
Regarding Griffin's first application for a service-connected disability retirement in 2006, the trial court found that there was a reasonable inference that Griffin's carpal tunnel syndrome had improved, and therefore did not constitute a disability permanently incapacitating her for the performance of her duties, because Griffin had withdrawn the 2005 application and did not include carpal tunnel syndrome in her second application in 2011.
" '[W]hen two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion.' [Citation]" (Perez v. City of Westminster (2016) 5 Cal.App.5th 358, 362.)
Applying our standard of review, we determine that the trial court could reasonably infer on the basis of substantial evidence that Griffin was not permanently incapacitated for her job duties due to carpal tunnel syndrome within the meaning of San Jose Municipal Code, section 3.28.1210, subdivision (A). It is undisputed that (1) in October 2006 Griffin wrote a letter to the Board of Administration requesting that her application for a service-connected disability retirement, which was based on carpal tunnel syndrome, be taken off the Federated Disability Committee's agenda for its October 18, 2006 hearing; (2) in the same letter Griffin stated that she would notify the committee's office to reschedule the hearing; (3) there is no indication that Griffin ever attempted to reschedule the hearing on her 2005 application for a service-connected disability; (4) in November 2006 the Federated Disability Committee "discontinued" Griffin's 2005 application for a service-connected disability retirement due to "the inability to communicate with [Griffin] despite multiple attempts to do so;" and (5) when Griffin filed a second application for a service-connected disability retirement five years later in 2011, she stated in the application that her "disability/injured body part[s]" were "thoracic outlet syndrome [and] myofascial pain syndrome," and she did not include carpal tunnel syndrome as a "disability/injured body part." Based on this evidence, we believe that the trial court could reasonably infer that in 2011 Griffin was not permanently incapacitated for her job duties due to carpal tunnel syndrome.
We also determine that substantial evidence supports the trial court's finding that Griffin was not permanently incapacitated for the performance of her job duties within the meaning of San Jose Municipal Code, section 3.28.1210, subdivision (A) due to thoracic outlet syndrome or myofascial pain syndrome, the disabilities that Griffin listed as "disability/injured body part[s]" in her 2011 application for a service-connected disability retirement.
The trial court found that the weight of the medical evidence showed that Griffin was not permanently incapacitated due to thoracic outlet syndrome or myofascial pain syndrome, based in large part on Dr. McCarroll's 2010 report that on physical examination of Griffin's upper extremities he found no "observable pathology," as well as Dr. Das's opinions that diagnostic studies did not reveal "any significant pathology" leading to incapacity and her condition did not require any work restrictions.
Although Griffin argues that the opinions of other physicians who examined Griffin are to the contrary, " '[t]he testimony of a witness, even the party himself [or herself], may be sufficient.' [Citations.]" (In re Marriage of Mix (1975) 14 Cal.3d 604, 614 (Mix).) Viewing the medical evidence in the light most favorable to the Board of Administration, and resolving all conflicts in the evidence in the Board of Administration's favor, as required by our standard of review, we determine that the trial court's finding that Griffin was not permanently incapacitated for the performance of her duties due to thoracic outlet syndrome or myofascial pain syndrome is supported by substantial evidence, specifically, the opinions of Dr. McCarroll and Dr. Das. (See Mix, supra, 14 Cal.3d at p. 614.)
Griffin's reliance on the decision in Meyers, supra, 224 Cal.App.4th 250 for a contrary conclusion is misplaced because that decision is distinguishable. In Meyers, the City's denial of plaintiff's application for a service-connected disability retirement was upheld by the trial court on the ground that the plaintiff's work restrictions could have been accommodated by the City. (Id. at pp. 255-256.) This court determined that there was no evidence showing that the City "could and would have" accommodated the plaintiff's work restrictions, and therefore this court remanded the matter for a new hearing on the plaintiff's application for a service-connected disability retirement. (Id. at pp. 567-568.) In the present case, in contrast, we have determined that substantial evidence supports the trial court's finding that Griffin has no work restrictions and therefore she is not permanently incapacitated for the performance of her duties due to her claimed disabilities of thoracic outlet syndrome and myofascial pain syndrome. We have also determined that the trial court reasonably inferred that by 2011 carpal tunnel syndrome was no longer a basis for Griffin's claim that she is entitled to a service-connected disability retirement. Accordingly, we need not address the issue of whether the City "could and would have" accommodated her work restrictions.
For these reasons, we will affirm the judgment denying Griffin's petition for a writ of administrative mandate.
V. DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to respondent.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.