Opinion
C085763
12-10-2018
KAREN K. PARKER, Plaintiff and Respondent, v. PUBLIC EMPLOYEES' RETIREMENT SYSTEM, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. STK-CV-UWM-2016-0008216)
This case arises under the Public Employees' Retirement Law (PERL) (Gov. Code, § 20000 et seq.). Plaintiff Karen K. Parker applied for a disability retirement alleging she could not perform her job as a rehabilitation therapist at Napa State Hospital (Napa) due to a work injury that prevented her from controlling assaultive patients. After the California Public Employees Retirement System (PERS) denied her application, she filed an administrative appeal. An administrative law judge (ALJ) filed a proposed decision denying her appeal which the PERS Board adopted as its own. Parker then filed this successful administrative mandamus petition compelling PERS to grant her disability retirement application. PERS timely filed this appeal.
Further undesignated statutory references are to the Government Code.
Although PERS purports to raise seven purely legal issues, it largely attacks the sufficiency of the evidence. The trial court was required to and did exercise its independent judgment on the evidence. We find no legal error and find the facts--viewed in the light most favorably to Parker--support the judgment. Accordingly, we shall affirm the judgment.
BACKGROUND
Facts
Many of the facts are not disputed. Parker was a rehabilitation therapist for the Department of Mental Health. In 2003 she suffered a shoulder injury while working at the Sonoma Development Center. In 2004 she transferred to Napa. In 2007 she applied for disability retirement, alleging that she was unable to perform one of her duties because of her shoulder injury. Specifically, she alleged she could not perform management of assaultive behavior (MAB). MAB is important because the hospital's patients have pleaded not guilty by reason of insanity to criminal charges, have been found incompetent to stand trial on criminal charges, or cannot be housed in prison because of mental problems. They can be violent toward other patients and staff.
The two basic factual issues are (1) whether MAB was a usual and customary job requirement, that is, whether it was required to be done often enough that Parker's inability to do it made her disabled, and (2) whether Parker's shoulder problems precluded her from performing MAB or merely made it slightly painful as PERS contended.
Job Duties
The duty statement for Parker's job states in part that an incumbent "[a]pplies and demonstrates knowledge of correct methods in [MAB]." MAB is listed under the heading Required Competencies. A 1999 job analysis found in pertinent part: "For the protection of the therapist, treatment staff, and clients themselves, [MAB] is required of all direct support staff. [D]epending on the unit the rehabilitation therapist is working on, there could be up to four incidents of MAB per day. MAB may be verbal intervention or physical intervention." The analysis described the major ongoing requirement for Parker's job as MAB training. Under the Hazards heading it states: "Because of the nature of the client population, there is always the hazard that one may need to protect oneself from an assault. The therapist may need to participate physically in his or her own self-protection, as well as the protection of staff and/or other clients. Therefore, the therapist may be required to physically or verbally intervene (re-direct) the client." (Italics added.)
A staff responsibility list in part stated that only "approved MAB procedures are to be used." Parker was trained on MAB. A September 1, 2006, letter from the hospital advised Parker that "our Essential Functions Oversight Committee made the judgment that performance of [MAB] is an essential function for the Rehabilitation Therapist classification."
Parker testified that the patients would "often . . . lose control and become combative and aggressive. And as a team, we had to physically restrain the patient so that he wouldn't harm himself or herself or others, other staff or anyone." This occurred from one to four times a day.
PERS's medical expert was Dr. Joseph Serra, an orthopedic surgeon. He testified that he considered MAB to be required of anyone who works with mental patients but that he did not view it as an essential job duty. He discounted references to MAB in reports he reviewed because Parker had neither provided specific incidents when MAB was used nor explained how often it was used. Further, Dr. Serra testified he would expect Parker's treating physicians to agree with her and put what she said in their reports. Serra conceded that MAB was listed as one of Parker's "usual duties." When Serra was shown documents referring to the need to manage up to four assaultive incidents per day, he testified that he did not think that was frequent enough to be significant and he believed Parker could perform that duty, that is, physically restrain an assaultive patient. The fact other doctors disagreed did not change his opinion. He himself had worked in the medical field long enough to understand the treatment of mental patients and he thought Parker's primary duties were recreational and rehabilitational. Neither the work restrictions referencing MAB (by Drs. Noah Weiss and Ibrahim Yashruti) nor Dr. Robert McIvor's opinion changed Dr. Serra's opinion.
The ALJ did not make a specific finding about how often MAB was done or whether it was part of Parker's usual duties, but found Parker could do it, although she might "experience pain or discomfort" while doing so. The trial court found MAB occurred "from at least once up to four times each day" and impliedly found that was legally sufficient to make it one of Parker's usual duties.
Parker's Ability to Perform MAB
In an April 2006 limited light duty agreement between Parker and her supervisor the restriction of "No MAB" is checked. Similarly, notes from March to October 2006 by Dr. Weiss, one of Parker's treating physicians, state "No MAB."
A report following an independent medical examination and record review by Dr. Serra in 2008 finds that while Parker's "subjective complaints may make performing certain tasks difficult by causing some pain or discomfort, there are not sufficient abnormal physical findings that support her subjective complaints, or that suggest that she would be unable to perform her usual and customary work activities;" she was not "substantially incapacitated for the performance of her usual duties;" "there is significant exaggeration of complaints related to the left shoulder;" and "the alleged industrial injury of 7/19/2003 has no bearing on the development of symptoms related to her left shoulder."
Dr. Serra submitted another report in June 2011, after reviewing further information. In part, his report states: "I am sure that there probably are occasions when MAB is required and it is my opinion that she would be perfectly capable of performing this function. The fact remains that this shoulder injury was sustained on 7/19/2003 and she continued working her usual and customary position until she was seen in February 2004." Serra noted that Parker wrote a 2011 letter stating, " 'The reason I cannot perform MAB is because of the instability in my left shoulder due to the removal of a joint there, not because of my lack of strength.' The only joint that was affected was the resection of the distal clavicle, the Mumford procedure. This does not result in an unstable shoulder. Therefore, since she claims that her shoulder was strong, she would be perfectly capable of performing MAB." Serra had reviewed a contrary report by Dr. Yashruti, and disagreed "that the cause of her present symptoms and disability in the left shoulder was the result of the industrial injury described on 7/19/2003. [Dr. Yashruti] is basing this on her subjective complaints and no factual information. His conclusion is nearly seven years following the subject incident and in my opinion, attaching a causal effect to that industrial injury is not reasonable." Other medical reports Serra had reviewed did not change his opinion. He submitted another report in February 2015, evidently in response to comments submitted by Parker; his view was unchanged.
An October 2006 report by Dr. Weiss stated in part: "I am becoming increasingly concerned about [Parker's] ability to return to [MAB]. She may become a qualified injured worker." A January 2007 report states his opinion that Parker "is not going to return to her usual and customary duties and she is in fact a qualified injured worker." A March 2007 postsurgical report in part states Weiss's opinion that Parker "will be permanently precluded from [MAB], but hopefully reasonable accommodations can be found." His June 2007 report states Parker "is permanent and stationary as of today's date. I am giving her permanent restrictions of no [MAB], restrictions of no more than 10 pounds lifting . . ., restrictions against forceful pushing and pulling, and no use of the left upper extremity above shoulder level."
"Qualified injured worker" and "permanent and stationary" are workers' compensation terms. A qualified injured worker is "[a]n employee who (1) has an injury which permanently precludes, or is likely to preclude, him or her from engaging in his or her usual occupation or the position in which he or she was engaged, and (2) can reasonably be expected to return to gainful employment through vocational rehabilitation services." (Cal. Code Regs., tit. 2, § 599.779.1, subd. (c).) "A disability is considered permanent after the employee has reached maximum improvement or his/her condition has been stable for a reasonable period of time. A physician determines the date that a medical condition becomes permanent and stationary." (Id., at subd. (b).)
Parker's medical expert, Dr. McIvor, graduated from Stanford medical school and has over 50 years of experience in orthopedic surgery. He now mostly does workers' compensation reports. Dr. McIvor reviewed Parker's medical records and found Dr. Weiss performed three surgeries on Parker's shoulder. Dr. McIvor did not believe Parker could restrain patients, as several of the reports he reviewed also found. Dr. Weiss was also of the opinion that Parker could not perform MAB. Dr. McIvor saw Parker again in January 2014 and thought it was "most likely" that she could not perform MAB or be "very effective" at restraining patients. McIvor conceded he evaluated Parker for workers' compensation purposes and that he was unaware of PERS disability standards. Later, while describing part of a report where he had listed things Parker could not do, Dr. McIvor testified as follows: "Q. And so you did not think that she could use her shoulder to restrain a patient who was exhibiting assaultive behavior; is that correct? [¶] A. Yes, I did not think she would be very effective in that situation." He later testified he understood "patient combat" to mean "restraining individuals as required." He then testified as follows: "Q. And you felt she could not perform that particular duty? [¶] A. Yes."
Parker testified that she injured her shoulder in 2003 and did not immediately seek treatment, thinking it would get better, but it got worse. She saw Dr. C. Lee Newman who in part prescribed no MAB. She identified a light duty agreement with the hospital that provided for no MAB. Although she worked, "I just didn't go. I took the other patients into another room to keep them safe. I didn't go and help out with the MAB." In a letter she wrote in response to an adverse report by Dr. Serra, she explained that she had been allowed unofficially to avoid MAB; she testified at the hearing that by this she meant that her co-workers looked the other way and told her not to perform MAB. Parker testified that both Dr. Dainer and Dr. Yashruti did not think she could do her job because of the MAB issue. Parker now works at a medical center in a similar job, but she is allowed to avoid MAB as a reasonable accommodation.
On cross-examination Parker conceded that MAB can be non-physical (i.e., verbal), but explained that because of the nature of the patients at Napa "it was mostly physical."
Dr. Serra graduated from medical school in 1960, specializes in orthopedic surgery, and performs medical examinations for PERS. The standard he applies is whether a person can do their "usual and customary work" or instead has "a substantial inability to so." He performed an independent medical examination of Parker in 2008 and also reviewed her medical records and job duties. She had an excellent range of motion although she complained of pain during some manipulations. She had some loss of grip strength on her left side "but she was complaining of weakness in the left arm anyway." He did not believe she had an inability to complete her job duties, although doing so might be painful; he believed she was not "substantially incapacitated" as of 2008. In aid of a supplemental report in 2011, he had reviewed Parker's more recent medical records (from Drs. Yashruti, Dainer, and Haynes), as well as information from Parker about her job duties, and was of the view she could do MAB; it might have been uncomfortable for her shoulder but he assumed her adrenaline would be flowing and other employees might be around to help her; in any event he "had no question as far as whether or not she could perform MAB. She could do it."
Dr. Serra prepared another report in 2015 after reviewing reports by Dr. McIvor, and his opinion was unchanged even after hearing Dr. McIvor's testimony at the administrative hearing. He was aware of the difference between the workers' compensation standards and PERS disability standards. For disability purposes a person "can have pain, they can have some discomfort when they do activities, but they are able to perform most all of their activities. Not all of them, not all the time; but that they are not substantially incapacitated."
The ALJ credited Dr. Serra's opinion over Dr. McIvor's opinion. Parker had "subjective complaints and a feeling that her shoulder [was] less stable," but "there was not competent, objective medical evidence" that she was not able to perform her usual duties.
The ALJ faulted McIvor's opinion because he had not reviewed Parker's job duties, and because the restrictions he recommended for her "are designed to limit or reduce the amount of pain she was having in her left shoulder. The restrictions were not based on an inability to perform the activities or any current disability." Moreover, there were no objective findings corroborating Parker's problems, and McIvor "evaluated respondent using the workers compensation standards."
The trial court disagreed and found Parker "could not perform MAB due to her shoulder injury as stated by three separate physicians."
Presumably two of these three were Drs. Weiss and McIvor, and PERS plausibly suggests the third was Dr. Newman (referred to as "Newton" by PERS). Parker's citations do not show how Newman's opinion was useful.
Procedure
After PERS denied her disability retirement application, Parker filed for regular safety retirement. She also filed an administrative appeal seeking disability retirement. After a hearing, the ALJ found against her, and the PERS Board adopted the ALJ's decision.
Parker then filed this mandamus action. The trial court, independently reweighing the evidence before the ALJ, granted Parker's mandamus petition, finding:
"The facts in this case indicate that Management of Assaultive Behavior ('MAB') occurred anywhere from at least once up to four times each day. Petitioner Karen Parker could not perform MAB due to her shoulder injury as stated by three separate physicians. Napa State Hospital informed her she was no longer qualified to perform her job. These facts clearly show that she was disabled under the PERS standard."
PERS timely appealed from the judgment granting the writ.
DISCUSSION
I
Introduction
PERS purports to raise seven legal issues (although some overlap). But as Parker points out, these claims are more properly characterized as substantial evidence claims or at best are mixed fact and law claims. To the extent any of them raise purely legal points, to show prejudice PERS would have to explain how the claimed error(s) were prejudicial. But nowhere does PERS either state the facts fairly in light of the appropriate standard of review or head and argue a claim of prejudice. We would be justified in rejecting the appeal on either or both of these grounds. (See, e.g., Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 [failure to state facts fairly]; Paterno v. State of California (1999) 74 Cal.App.4th 68, 105-106 [failure to head and argue prejudice].) However, we elect to address PERS's purported legal issues.
In mandamus cases seeking review of a retirement board's decision "the trial court must exercise its independent judgment when reviewing the evidence presented at a . . . disability retirement hearing. (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal. 3d 28, 32.) In this review, the trial court may reweigh the evidence. (Id., at p. 44.) After independently reviewing the administrative record, the court then may make its own factual findings. (Hittle v. Santa Barbara County Employees Retirement Assn. (1985) 39 Cal. 3d 374, 388, fn. 9.)" (Levingston v. Retirement Board (1995) 38 Cal.App.4th 996, 1000.) "On appeal, we 'need only review the record to determine whether the trial court's findings are supported by substantial evidence.' [Citations.] As to questions of law, we review those determinations de novo." (Beckley v. Board of Administration (2013) 222 Cal.App.4th 691, 697 (Beckley); see Glover v. Board of Retirement (1989) 214 Cal.App.3d 1327, 1337 (Glover); Harmon v. Board of Retirement (1976) 62 Cal.App.3d 689, 691 (Harmon).)
In the trial court PERS argued the court should apply the substantial evidence test when reviewing the Board's decision. This claim is not pressed on appeal. We also point out that because the court's written ruling was not a statement of decision, on appeal we must infer any findings in favor of Parker that are supported by the evidence. (See Beckley, supra, 222 Cal.App.4th at p. 702; see also Burbank-Glendale-Pasadena Airport Authority v. Hensler (1991) 233 Cal.App.3d 577, 591.) For essentially the same reason, PERS cannot show that the trial court failed to give the deference due to the Board's decision even on independent review. (See Seibert v. City of San Jose (2016) 247 Cal.App.4th 1027, 1042-1043 (Seibert).) This also answers PERS's evident view that it is entitled to a reversal if it can demonstrate that any one of the trial court's written findings is infirm.
We explain in Part II why the judgment is factually supported. In Part III we will address PERS's purported legal attacks on the judgment.
II
Incapacity and Job Duties
Under the relevant statutes, " 'Disability' and 'incapacity for performance of duty' as a basis of retirement, mean disability of permanent or extended duration, which is expected to last at least 12 consecutive months . . . on the basis of competent medical opinion." (§ 20026; see also § 21156, subd. (a)(2) [also stating that the determination shall be made "on the basis of competent medical opinion"].) Defined employees are eligible for disability retirement if they are found to be "incapacitated physically or mentally for the performance of [their] duties." (§ 21156, subd. (a)(1).)
These (or predecessor) statutes have been construed to mean an employee is not disabled (or incapacitated) simply because she cannot do all the tasks listed on a duty sheet for a particular job classification.
The seminal case, Mansperger v. Public Employees' Retirement System (1970) 6 Cal.App.3d 873 (Mansperger), considered whether a game warden was disabled:
"The general duties of a fish and game warden are set forth in the [job specifications.] These duties include patrolling specified areas to prevent violations and to apprehend violators; . . . serving warrants and making arrests; . . . seizing equipment used in violations; . . . assisting and conducting controlled hunts; investigating water pollution and speaking at civic meetings.
"A fish and game warden is a peace officer and has to be able to shoot a gun; he has to remove dead animals by pushing them to the side of the road or putting them in pickup trucks. If the animal is large the wardens may require assistance; a warden may be assigned duties as a beach warden and have to . . . rescue people from the water . . . . A game warden must be able to . . . swim 100 yards, board and inspect pleasure and fishing boats, and arrest suspected violators.
"Petitioner . . . suffered injuries to his right arm while arresting a suspect. Dr. Lambert . . . concluded as follows: 'The patient is partially disabled because of the condition of the arm . . . . However, the patient has good use of the arm other than for the slight limitation of full flexion . . . . The patient therefore is not disabled except for activities requiring heavy lifting and carrying and it does not appear that he normally does this sort of work. I do not therefore believe the patient to be disabled for his usual and customary job activities. . . .'
"[¶] . . . [¶]
"There was evidence to the effect that petitioner could shoot a gun, drive a car, swim, row a boat if he had to (but with some difficulty); pick up a bucket of clams, pilot a boat, and apprehend a prisoner (with some difficulty), but he could not lift heavy weights or carry the prisoner away because that would involve heavy lifting." (Mansperger, supra, 6 Cal.App.3d pp. 874-875, italics added.)
Thus, Mansperger did not simply look at the list of duties based on the written job description and ask whether the employee could perform each one. Instead Mansperger considered whether the worker's "usual and customary duties" could be performed, even if with "some difficulty" as provided in the italicized portions of the above quotation, and concluded that incapacity means "the substantial inability of the applicant to perform his usual duties." (Mansperger, supra, 6 Cal.App.3d at p. 876.) The court pointed out that the things Mansperger could not do were "not a common occurrence" for his job. (Id. at p. 877.) The fact he could not do some of the things called for by his job description, or could do others only with difficulty, did not compel a finding that he was incapacitated.
In Hosford v. Board of Administration (1978) 77 Cal.App.3d 854 (Hosford) we applied Mansperger to the case of a CHP sergeant. We concluded based on the particular facts that some of the more physically demanding activities of a CHP traffic officer were conducted much less frequently by a sergeant, whose primary role was supervisory, therefore we upheld a trial court's finding that Hosford was not incapacitated, despite evidence that he had some physical limitations. (See id. at pp. 860-861, 862-863.)
PERS likens Parker's situation to Mansperger's, arguing that even if she had trouble with MAB (pain and so forth), she was physically able to do it, and in any event she was not barred from doing her "usual duties." But this considers the evidence in the light favorable to PERS, in derogation of the appropriate standard of review. Even PERS's expert, Dr. Serra, testified MAB was routinely expected of mental health workers. The trial court could find that MAB was a critical and necessary job duty, even if it was not performed every day and did not occupy a great deal of Parker's time on the job.
In an employee classification dispute where the claim was made that certain employees rarely fought fires and therefore firefighting was not one of their "principal duties," we disagreed. We explained that the employees were trained, equipped, and expected to fight fires, and the fact only a relatively few fires had occurred did not change that. (See City of Oakland v. Public Employees' Retirement System (2002) 95 Cal.App.4th 29, 59-62 (City of Oakland).) We pointed out that " 'They also serve, who only stand and wait.' [Citation.]" (Id. at p. 62.) So, too, here.
Viewing the record in the light most favorably to the judgment, a violent incident could break out at any time at Napa, and staff members are trained in MAB to deter such incidents and minimize the harm when such an incident occurs. Parker testified she was called on to use MAB from one to four times per day, and the trial court credited her testimony. Her testimony, in turn, was amply corroborated by her duty statement (although the duty statement by itself is not dispositive) and by her training records. Although MAB did not consume a large part of every work day, during every moment of every work day Parker might have been called on to use MAB to protect herself, another employee, or a patient. Therefore, every moment she was unable to assist with MAB she endangered her life and the lives of her coworkers and patients. (Cf. City of Oakland, supra, 95 Cal.App.4th at p. 62.)
This conclusion is supported by Thelander v. City of El Monte (1983) 147 Cal.App.3d 736 (Thelander), a PERL disability retirement case applying Mansperger. Thelander was a probationary peace officer injured at the police academy and unable to complete her training; she was terminated. (Id. at pp. 739-740.) The evidence showed every officer was required "to operate at the same level as a field officer regardless of her assigned position. This admission negates El Monte's contention that a distinction exists between the daily requirement of the job and the rare strenuous activities that may occasionally be involved. If every officer must be capable of and prepared for the worst everyday, then that is a 'usual' duty of the job." (Id. at p. 742, italics added.)
Parker, too, "must be capable of and prepared for the worst," i.e., the regular albeit perhaps occasional need to control an assaultive patient. PERS's view that MAB was not a usual and customary duty simply because it did not occupy much job time overlooks the critical nature of that job duty.
As for PERS's view that Parker could perform MAB, albeit with discomfort, Dr. McIvor's testimony, viewed favorably to the judgment, shows Parker could not perform MAB. He did not think she could effectively restrain a patient, and when asked if he felt she could perform MAB, he replied that she could not. The trial court was entitled to find that McIvor's vast experience as an orthopedic surgeon, the materials he had reviewed, and his physical examination of Parker amply qualified him to give this medical opinion, regardless of the fact that he had examined her for workers' compensation purposes.
With this overview of the evidence viewed in the light most favorably to the judgment, we will now address PERS's specific contentions.
III
PERS's Contentions
A. Competent Medical Opinion
Under five different headings ("issues" one through five in the opening brief) PERS contends that various items of evidence do not qualify as "competent medical opinion." In this section of its opening brief PERS makes the following five claims:
(1) It was error to admit any of the medical records because they were hearsay. The sole legal authority provided is section 11513.
(2) None of the three doctors whose testimony was (presumably) relied on by the trial court (Weiss, Newman, and McIvor) understood or applied PERS's standards for disability or considered Parker's actual job duties. Within this claim PERS argues the opinions of Weiss and Newman were hearsay.
(3) No records or "opinions" that predate Parker's disability application are "competent" medical evidence, because she had later procedures and this evidence did not directly speak to her current medical condition.
(4) Parker's complaints are not supported by "objective" proof.
(5) The hospital's determination that she was no longer qualified for her job (in part because MAB was an "essential" job duty) was not "competent" medical evidence.
PERS parses individual items or categories of evidence and denigrates each by viewing it in isolation. In doing so, PERS misapplies the substantial evidence test. We must view the evidence and all reasonable inferences therefrom in the light most favorable to Parker, as the prevailing party in the trial court, as we now explain.
1. The Law
"Under the often-enunciated rule, which is so often forgotten in the enthusiasm of advocacy, we look to the evidence accepted by the trial court." (Findleton v. Taylor (1962) 208 Cal.App.2d 651, 652; see Overton v. Vita-Food Corp. (1949) 94 Cal.App.2d 367, 370.) We "must accept as true all evidence tending to establish the correctness of the finding as made, taking into account, as well, all inferences which might reasonably have been thought by the trial court to lead to the same conclusion. Every substantial conflict in the testimony is, under the rule which has always prevailed in this court, to be resolved in favor of the finding." (Bancroft-Whitney Co. v. McHugh (1913) 166 Cal. 140, 142, see People v. Johnson (1980) 26 Cal.3d 557, 575-578.)
Generally, the testimony of a single witness is sufficient to prove any fact. (See People v. Barnwell (2007) 41 Cal.4th 1038, 1052.) " 'To warrant the rejection by a reviewing court of statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or it must be such as to shock the moral sense of the court; it must be inherently improbable and such inherent improbability must plainly appear." ' (People v. Jones (1970) 10 Cal.App.3d 237, 247.)
"[T]he credibility of witnesses is generally a matter for the trier of fact to resolve. . . . Moreover, so long as the trier of fact does not act arbitrarily and has a rational ground for doing so, it may reject the testimony of a witness even though the witness is uncontradicted. [Citations.]" (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1204; see Glover, supra, 214 Cal.App.3d at p. 1337.) On the other hand, we have explained that "[t]he value of opinion evidence rests not in the conclusion reached but in the factors considered and the reasoning employed. [Citations.] Where an expert bases his conclusion upon assumptions which are not supported by the record, upon matters which are not reasonably relied upon other experts, or upon factors which are speculative, remote or conjectural, then his conclusion has no evidentiary value. [Citations.] In those circumstances the expert's opinion cannot rise to the dignity of substantial evidence. [Citation.]" (Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1135-1136.)
2. Analysis
PERS does not directly contest any of the above rules, but instead purports to bring foundational attacks, couched as "issues," on the adverse evidence, intertwined at times with claims of evidentiary error.
PERS objected on hearsay grounds to many of the exhibits, and the ALJ overruled those objections, stating the exhibits would be viewed as "administrative hearsay to the extent that it supplements or explains any of the evidence that's been admitted so far or testimony." Similarly, although relevancy objections were lodged on the ground exhibits reflected workers' compensation standards rather than disability standards, the ALJ stated that went to the weight of the evidence.
As for hearsay, section 11513, part of the Administrative Procedures Act (§ 11500 et seq.) governed the administrative hearing. That statute provides in relevant part:
"(c) The hearing need not be conducted according to technical rules relating to evidence and witnesses, except as hereinafter provided. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of the evidence over objection in civil actions.
"(d) Hearsay evidence may be used for the purpose of supplementing or explaining other evidence but over timely objection shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.
An objection is timely if made before submission of the case or on reconsideration." (Italics added.)
Thus, hearsay is admissible if it is the kind of evidence on which persons generally rely in the conduct of serious affairs (§ 11513, subd. (c); see Thornbrough v. Western Placer Unified School Dist. (2013) 223 Cal.App.4th 169, 192-193), but a finding cannot be supported only by hearsay evidence to which a timely objection was interposed (unless that evidence would otherwise be admissible in a civil action). (See (§ 11513, subd. (d); Seibert, supra, 247 Cal.App.4th at pp. 1060-1061; Bledsoe v. Biggs Unified School Dist. (2008) 170 Cal.App.4th 127, 141 ["Since plaintiffs timely objected on the basis of hearsay to the prior administrative decision, it cannot be the sole support for a finding of Gates's and Sormano's special training and experience for teaching community day school. However, it can be and was properly used to supplement the other evidence of their qualifications"].)
That is, hearsay evidence that would not be "admissible over objection in civil actions." (§ 11513, subd. (d).) We note that expert opinions may be based on otherwise inadmissible hearsay. (See Evid. Code, § 801, subd. (b); Conservatorship of K.W. (2017) 13 Cal.App.5th 1274, 1281, 1283, 1285 (K.W.); see also People v. Sanchez (2016) 63 Cal.4th 665, 685-686 [barring an expert from describing case-specific facts of prior cases on which he relied, but holding an expert "may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so"].) We will assume without deciding that the section 11513 evidentiary rules applicable at the administrative hearing also apply in this mandamus proceeding, as do the parties.
PERS suggests that the various reports and Dr. McIvor's testimony based thereon was inadmissible hearsay. We first observe that parts of the medical reports would seem to fall within the hearsay exception for statements about a declarant's existing physical condition. (See Evid. Code, § 1250; 1 Witkin, Cal. Evidence (5th ed. 2018) Hearsay, § 196.) Further, the reports merely supplemented or explained other evidence, namely, Dr. McIvor's professional, expert, opinion, which was in part based on his own treatment of Parker. Thus, administrative practice changes the normal rule that hearsay evidence relied on by an expert cannot be used to support a fact unless it is separately admissible via an exception to the hearsay rule. (See, e.g., K.W., supra, 13 Cal.App.5th at pp. 1282, 1285.) Instead, under section 11513, subdivision (d), so long as there is other evidence supporting a fact, hearsay used by an expert (or any other hearsay for that matter) can be used to bolster the non-hearsay evidence. (See, e.g., Berg v. Davi (2005) 130 Cal.App.4th 223, 229-230; Cal. Administrative Hearing Practice (Cont.Ed.Bar 2017) The Hearing Process, § 7.94.)
Further, doctors routinely--and necessarily--rely on a patient's own account of a medical condition and the written opinions or evaluations of prior doctors. (See People v. Catlin (2001) 26 Cal.4th 81, 137; 1 Witkin, Cal. Evidence, supra, Opinion Evidence, § 34; see also Evid. Code, § 801, subd. (b).) Even assuming (as PERS posits) that Parker's prior doctors did not know anything about the disability retirement rules (that is, the legal definition of usual duties) and that they were treating Parker solely for purposes of her workers' compensation claim, that does not make their medical opinions "incompetent." McIvor could use their reports about Parker's medical condition in forming his own expert opinion of her condition regardless of the use for which their opinions may have been generated and regardless of their (and his) ignorance of disability retirement laws.
Dr. McIvor's expert opinion was not hearsay, nor was his evidence incompetent. He was a graduate of Stanford medical school and had over 50 years' experience as an orthopedic surgeon. For PERS to contend he was not competent to give a medical opinion about his own patient's physical abilities is unsupported and inaccurate. Viewing all of the evidence in the record in the light favorable to Parker, the finding that she could not perform MAB is amply supported.
PERS contends that for purposes of a "disability retirement, a competent medical opinion must establish that the doctor is (1) qualified to render a medical opinion on the medical condition that is the basis for the disability application, (2) has reviewed and/or has demonstrated a knowledge of the applicant's actual and usual duties, and (3) evaluates the applicant to determine if they are, or are not, capable of substantially performing their actual and usual duties." PERS cites no authority to support this proposition. (Cf. Ewald v. Nationstar Mortgage, LLC (2017) 13 Cal.App.5th 947, 948 [forfeiture for lack of authority].)
B. Parker's Usual Duties
PERS's sixth "issue" contends that MAB was not properly found to be one of Parker's duties because the trial court "did not give proper weight to [Parker's] actual and usual duties." This is another invitation to this court to reweigh evidence.
We agree with PERS that "[i]n Hosford, [we] made clear that one must examine the duties actually and usually performed by the individual, not just the individual's job description. (Hosford, supra, 77 Cal.App.3d [at pp] 860-861.)" We adhere to that view, which endorsed and followed the Mansperger decision.
Parker's own testimony supports the trial court's finding that MAB was used essentially daily if not multiple times a day, showing it was part of Parker's usual and customary job duties. Even Dr. Serra conceded it was a requirement for mental health care workers, although he discounted its importance. The trial court could rationally reject Serra's qualification on this point because, as we have detailed ante, MAB was a critical skill.
This view was bolstered by the 2006 letter from Napa to Parker, denying her request for accommodations but admitting MAB was an "essential" job function. Assuming the letter was hearsay, "it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs." (§ 11513, subd. (c).) The fact the letter did not detail all of the material considered and procedures used in classifying MAB as an essential job function went to its weight. Although not conclusive, it was relevant. It corroborated other evidence in the record making the same point. (See § 11513, subd. (d).)
The letter provides a solid foundation for its conclusion: It states that a "Reasonable Accommodations Panel" met and reviewed "all the information submitted to evaluate your request for reasonable accommodation" and that Napa's "Executive Director" was making a final determination on her request. It then explains that the "Essential Functions Oversight Committee made the judgment" that MAB was an essential function, finds that her request was denied because her "prognosis indicates the expectation of a full recovery and return to work," and then explains Parker's administrative appeal rights. This letter easily meets the standard of evidence that responsible people rely on in the conduct of serious affairs. (See, e.g., Ring v. Smith (1970) 5 Cal.App.3d 197, 204; Dyer v. Watson (1953) 121 Cal.App.2d 84, 92.)
PERS suggests that the fact the hospital told Parker not to do MAB means it was not one of her usual duties, and the fact she was unofficially allowed to avoid it negates the possibility that MAB could be one of her usual duties. That conclusion is not compelled. The trial court could view that evidence to infer Parker could not do at least part of her usual duties. (See Beckley, supra, 222 Cal.App.4th at p. 702 ["the record is undisputed that CHP directed Beckley to leave the workplace because of his inability to perform the 14 tasks. The evidence is sufficient to support the trial court's factual finding that Beckley was unable to carry out the usual duties"].) The court could rationally find that Parker could not forego MAB indefinitely, and that at some point her employer's forbearance would cease.
Further, as we outlined ante, based on all the evidence the court could find MAB was a vital skill, even if only sporadically performed by Napa Staff.
C. Parker's Disability
In its seventh claim, PERS contends there is no substantial evidence to show that Parker is disabled under PERS's "standard." We readily accept that the PERS disability standards do not equate to workers' compensation standards. (See Pearl v. Workers' Comp. Appeals Bd. (2001) 26 Cal.4th 189, 198; Bianchi v. City of San Diego (1989) 214 Cal.App.3d 563, 567-569; Harmon, supra, 62 Cal.App.3d at p. 697.) But that does not mean that a compensation medical opinion lacks any value in a disability case. At best it goes to the weight, not admissibility, of the evidence.
In certain circumstances, the Workers' Compensation Appeals Board determines industrial causation of injuries, which may preclude relitigation of that issue in the disability retirement forum. (See § 21026; Thelander, supra, 147 Cal.App.3d at p. 741.)
PERS claims McIvor (and others) did not know Parker's job duties and did not know the legal definition of disability for PERS retirement purposes. But McIvor's opinion about her physical abilities (and all of the corroborating evidence, viewed in Parker's favor) is what is important, and he opined she could not perform MAB. As indicated ante, the fact McIvor did not know anything about PERS's disability standards did not detract from his vast experience as an orthopedic surgeon. His expert evidence, even if imperfect, would still "assist the trier of fact." (Evid. Code, § 801, subd. (a).) To the extent Dr. McIvor was unaware of PERS disability standards, that would not undermine his medical opinion, it would merely go to the weight of his testimony. (Cf., e.g., Alward v. Paola (1947) 79 Cal.App.2d 1, 9 ["An opinion not founded on all of the facts goes to the weight of the evidence and not to its competency or materiality"].) We again reject PERS's view that Dr. McIvor was not "competent" to express a medical opinion about Parker's physical condition. The same can be said of the various treating experts whose reports were relied on by McIvor in formulating his opinion.
DISPOSITION
The judgment is affirmed. The California Public Employees Retirement System shall pay Karen K. Parker's costs of this appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
/s/_________
Duarte, J. We concur: /s/_________
Mauro, Acting P. J. /s/_________
Hoch, J.