Opinion
F062610 Super. Ct. No. 655153
04-05-2012
ARTHUR VOORTMAN, Plaintiff and Respondent, v. STANISLAUS COUNTY EMPLOYEES' RETIREMENT ASSOCIATION, Defendant and Appellant.
The Law Office of Ted M. Cabral and Ted M. Cabral for Defendant and Appellant. Moorad, Clark & Stewart and Adam J. Stewart for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Stanislaus County. Roger M. Beauchesne, Judge.
The Law Office of Ted M. Cabral and Ted M. Cabral for Defendant and Appellant.
Moorad, Clark & Stewart and Adam J. Stewart for Plaintiff and Respondent.
The trial court granted respondent Arthur Voortman's petition for writ of administrative mandate. The judgment set aside a decision of appellant Stanislaus County Employees' Retirement Association (hereafter, the association) that denied respondent's application for disability retirement. In this appeal by the association, we conclude the trial court erred. We reverse the judgment and direct the trial court to enter an order denying the petition for writ of administrative mandate.
FACTS AND PROCEDURAL HISTORY
Respondent was an employee of the Stanislaus County Sheriff's Department for over 33 years. Over the course of his career, respondent worked his way up to lieutenant and, for the last 10 years of his career, served as chief of police for the City of Riverbank, which had a contract with the sheriff's department for the provision of police services. Respondent suffered work-related lower back injuries in 1979 and 1990. In 2007, his pain from those injuries became so severe that he required lumbar fusion surgery. Respondent had accumulated significant sick leave and began his postoperative recovery in March 2007 on sick leave.
By October 2007, respondent's sick leave was running out and respondent was feeling financial pressure. Respondent's surgeon had not, at that point, declared his condition permanent and stationary, that is, had not determined that respondent had reached his maximal level of recovery and rehabilitation. Accordingly, respondent was not eligible to apply to permanently return to work in a position that accommodated whatever work restrictions would be imposed when he became permanent and stationary. In addition, the sheriff's department had advised him there was no temporary job available with the work restrictions that had been imposed prior to reaching permanent and stationary recovery. It was respondent's opinion that if the department would not take him back on temporary light duty, "they were not going to make any accommodations permanently." Respondent did not contact the department about returning to work once his permanent limitations were established by his doctor, and no one from the department contacted him.
Respondent testified at the administrative hearing, without elaboration, that his worker's compensation application had been denied. In addition, his spouse had become disabled, further reducing the family's income.
In light of these considerations, on October 23, 2007, respondent applied for service retirement (i.e., "regular" retirement based on age and length of service) and attempted to apply simultaneously for service-connected disability retirement. Because the application for disability retirement required submission of medical records that were unavailable to respondent at the time, the completed disability retirement application was deemed officially filed on February 21, 2008. Respondent's service retirement became effective November 17, 2007.
Over the course of the following 18 months, the association investigated respondent's disability claim. At the end of its investigation, the association concluded that respondent was disabled from returning to his job as police chief but that the sheriff's department would have been able to accommodate respondent's physical limitations in either of two supervisory-level positions within the department. Because respondent had retired, however, respondent was not eligible for employment in those positions.
The matter was referred for an administrative hearing. Respondent contended he was entitled to disability retirement benefits or to reinstatement in his prior position. The hearing officer made proposed findings of fact: Respondent's injuries and surgery were service connected. Respondent was unable to return to work in his previous assignment after surgery. However, he "is still capable of performing modified duties in the same position, within the same department, and at the same rate of pay. If [respondent] had not elected to leave on a regular service retirement and was still an employee when his doctor declared him to be permanent and stationary, the department would have been able to accommodate him on a permanent basis." "By retiring when he did, before there was any determination of permanent and stationary condition, [respondent] deprived the Sheriff's Department of the ability to offer him permanent modified duties as permitted by law." The association's Board of Retirement adopted the hearing officer's proposed decision and denied respondent's application for disability retirement at its meeting of March 23, 2010.
Respondent filed a petition for writ of mandate, pursuant to Code of Civil Procedure section 1094.5, on June 22, 2010. After a hearing on the merits, the trial court entered a decision granting the petition: "[The association's] decision denying Petitioner's service connected disability retirement application is set aside and the matter is remanded to Respondent for further action consistent with the court's findings." The trial court determined that the association was "estopped through the doctrine of laches from prevailing on the merits." The trial court found that there was no prohibition on simultaneous filing of applications for service retirement and disability retirement. The fact that respondent did not hold a hearing on the disability retirement application until 21 months after the application date rendered the delay "unfair." The association's contention that respondent rendered himself unavailable for permanent placement in limited duty work by retiring from the sheriff's department was "unreasonable" due to the sheriff's failure to offer a job that accommodated respondent's limitations "in a timely fashion." The trial court concluded: "Petitioner fulfilled his obligations to render his services as a law enforcement officer and it was/is [the association's] obligation to treat Petitioner fairly and in a timely fashion." It is not clear from the trial court's decision whether it intended that the association grant disability retirement benefits to respondent or that the association cause the sheriff's department to rehire respondent, or whether that choice was left open to the association and the sheriff. The association appealed from the court's decision.
The sheriff and the sheriff's department were not parties to any of these proceedings. Although respondent initially sought reinstatement to his employment as his requested remedy in the administrative hearing, before this court he primarily seeks disability retirement benefits.
DISCUSSION
The association was formed and operates under the provisions of the County Employees Retirement Law of 1937 (CERL), Government Code section 31450 et seq. A county employee covered by a CERL retirement plan is a member of the association and, upon reaching retirement age, may apply for service retirement based on the employee's age and length of service. There is no dispute in this case that respondent had reached service retirement age and had sufficient years of service, and that the association timely and correctly established respondent's service retirement benefit payments, which he has been receiving since November 2007.
All further statutory references are to the Government Code unless otherwise indicated.
In addition to service retirement, CERL provides for disability retirement for persons who are "permanently incapacitated for the performance of duty" when the incapacity arose out of and in the course of the person's employment under certain conditions and exceptions not relevant here. (§ 31720.) If the employer has dismissed the employee for disability, but the board finds the employee not to be incapacitated for the performance of his or her duties, the employer must reinstate the employee. (§ 31725.) If, on the other hand, the retirement board determines that the employee is incapacitated to perform the duties of employment, but the incapacity does not prevent the performance of other duties, the retirement board must notify the employing agency of its findings (§ 31725.65, subd. (a)), and the employing agency is then required to inform the employee "of any vacant county positions that may be suitable for the member, consistent with his or her disability, and ... consult with the member in an effort to develop a reemployment plan ...." (Id., subd. (b).) "Upon approval by the member of the reemployment plan, the appropriate agency ... shall notify the board that the agency is proceeding to implement the approved reemployment plan." (Id., subd. (c).) When the employee returns to work under the plan, the employee "shall not be paid the disability retirement allowance to which the member would otherwise be entitled during the entire period that the member remains in county service." (Id., subd. (d).) If the employer offers the member a limited-duty position (i.e., a position consistent with the residual capabilities of the member's permanent and stable condition), the member will not be granted a disability retirement. (See, e.g., Craver v. City of Los Angeles (1974) 42 Cal.App.3d 76, 79-80.)
If the compensation rate of the limited-duty position "is less than the compensation rate of the position for which the member was incapacitated, the board shall, in lieu of the disability retirement allowance, pay to the member a supplemental disability allowance" to make up the difference. (§ 31725.65, subd. (d).)
Craver v. City of Los Angeles, supra, 42 Cal.App.3d 76 and related cases were decided under the retirement provisions of city charters and not under CERL. Language in Nolan v. City of Anaheim (2004) 33 Cal.4th 335, 342, decided under the Public Employees Retirement Law (PERL) might support an argument that disability retirement under CERL is not subject to the same accommodation rules as applied in the Craver line of cases. Respondent, however, does not make such an argument, and we find persuasive the application of the Craver line of authority in the CERL context set forth in Schrier v. San Mateo County Employees' Retirement Assn. (1983) 142 Cal.App.3d 957, 961-962. In addition, we note that section 31720 (CERL) contains different language than the section 21156 (PERL) language construed in Nolan. (See Nolan v. City of Anaheim, supra, 33 Cal.4th at p. 341.)
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The CERL, therefore, provides for three alternatives, namely, that an employee is permanently disabled from all available work (and so receives a disability retirement), the employee is able to return to his or her previous duties (and so does not receive a disability retirement but is instead reinstated to his or her employment), or an employee is able to permanently perform the limited duties of a different, available job, either with his or her employing agency or with another county department (and so does not receive a disability retirement but is returned to employment). (See Raygoza v. County of Los Angeles (1993) 17 Cal.App.4th 1240, 1246-1247; Phillips v. County of Fresno (1990) 225 Cal.App.3d 1240, 1257.)
The purpose for the reinstatement provision of section 31725 is "to eliminate severe financial consequences to an employee resulting from inconsistent decisions between an employer and the retirement board which leave the employee without retirement income and without a job." (Phillips v. County of Fresno, supra, 225 Cal.App.3d at p. 1255.)
Section 31725.7 provides that an employee who has applied for disability retirement may also apply for service retirement "pending the determination of his or her entitlement to disability retirement." (§ 31725.7, subd. (a).) "If he or she is found to be eligible for disability retirement, appropriate adjustments shall be made in his or her retirement allowance retroactive to the effective date of his or her disability retirement as provided in Section 31724" (concerning the date upon which disability retirement benefits shall begin). (Ibid.)By electing this alternative and receiving service retirement benefits while his or her disability retirement application is pending, however, the employee necessarily gives up the right to reinstatement to previous employment: "In the event a member retired for service is found not to be entitled to disability retirement he or she shall not be entitled to return to his or her job as provided in Section 31725." (Id., subd. (b).)
In the present case, respondent took service retirement, thereby precluding a reinstatement to an available accommodation position. As a result, respondent was "not ... entitled to disability retirement" (§ 31725.7, subd. (b)) and "not entitled to return to his ... job." (Ibid.) The "severe financial consequences" that section 31725 seeks to avoid are not present in such a situation. An employee whose application for service retirement has been accepted is not "without retirement income and without a job," as described in Phillips v. County of Fresno, supra, 225 Cal.App.3d at page 1255. The member's service retirement benefit may be greater or lesser than the disability retirement benefit for which the member hoped to qualify, but the member nevertheless receives the full retirement benefit to which he or she is entitled based on years of service.
Section 31725.7, subdivision (b), precludes the attempt by the trial court here to impose an equitable solution. The trial court concluded that appellant's delay of "two years and four months" between respondent's application for benefits and the final denial (that is, the board's adoption of the administrative hearing officer's proposed decision after the hearing) was "unreasonable" and did not treat respondent "fairly." Because of the statutory prohibition on reinstatement to employment of those receiving service retirement benefits, however, the delay by appellant did not prejudice respondent: Respondent would not have been entitled to reinstatement to limited-duty employment even if appellant had processed his disability application in a more timely fashion. Accordingly, the association's actions in processing respondent's disability application did not result in unfair treatment.
Respondent contends in his brief on appeal, for the first time in these lengthy proceedings, that he was entitled to interim payment of disability retirement benefits by his employer during the pendency of his disability retirement application with the association. There is no evidence in the record before us that respondent requested temporary disability payments from the sheriff's department or that such a request was denied. Such benefits are, under some circumstances, available from the employer pursuant to Labor Code section 4850.4. Such benefits are not available from the retirement association. Even if we were to speculate that respondent requested interim disability benefits from the sheriff's department, respondent has cited no law, nor made any reasoned argument, in support of the proposition that a retirement association can be made responsible for the failings of the employer under the Labor Code. In the absence of any factual record supporting respondent's claim, and in the absence of any apparent reason in law or logic to hold the association responsible for actions of the sheriff's department (if any) which the association could not have controlled, we conclude the availability of benefits under Labor Code section 4850.4 is not relevant in any way to the issues in the present appeal.
DISPOSITION
The judgment of the trial court granting the petition for writ of mandate is reversed. The matter is remanded to the trial court for entry of an order denying the petition for writ of mandate. Appellant is awarded costs on appeal.
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DETJEN, J.
WE CONCUR:
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GOMES, Acting P.J.
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POOCHIGIAN, J.