Opinion
F083118
02-24-2023
GLORIA MORGAN, Plaintiff and Appellant, v. BOARD OF RETIREMENT OF THE KERN COUNTY EMPLOYEES' RETIREMENT ASSOCIATION, Defendant and Respondent.
Law Office of Steven R. Rosales and Steven R. Rosales, for Plaintiff and Appellant. Phillip T. Jenkins for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County Super. Ct. No. BCV-19-103153, William D. Palmer, Judge (Retired Judge of the Kern Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Law Office of Steven R. Rosales and Steven R. Rosales, for Plaintiff and Appellant.
Phillip T. Jenkins for Defendant and Respondent.
OPINION
FRANSON, J.
Appellant Gloria Morgan applied for a service-connected disability retirement due to stress and anxiety caused by her job as a dispatcher with the Kern County Sheriff's Department. Her application was denied by the Board of Retirement of Kern County Employees' Retirement Association (Board). Morgan challenged the denial by filing a petition for writ of administrative mandate in the superior court. The court denied the writ petition after concluding it was required to conduct an independent review of the evidence and stating that she failed to carry her burden of proof.
On appeal, Morgan contends that she met her burden of proof by providing substantial evidence in support of her disability application. This contention employs the wrong standard of appellate review. To demonstrate a failure-of-proof determination was error, an appellant must establish that the evidence compels a finding in his or her favor as a matter of law. (Valero v. Board of Retirement of Tulare County Employees' Assn. (2012) 205 Cal.App.4th 960, 966 (Valero).) Here, Morgan argues that she carried her burden of proof by presenting substantial evidence to support her application. This argument does not acknowledge and, thus, is not tailored to the demanding compelled-as-a-matter-of-law standard of review. The trial court did not err in concluding Morgan did not carry her burden of proof because her evidence was not (1) uncontradicted and unimpeached and (2) of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding. Thus, a finding in her favor was not compelled as a matter of law.
We therefore affirm the judgment.
FACTS
In January 1998, Morgan started her employment with the Kern County Sheriff's Department as a Sheriff Dispatcher I. She turned 24 the following April. After a year of service, Morgan was promoted to Sheriff Dispatcher II. In 2007, Morgan went to work as a dispatcher for the California Highway Patrol-an experience she described as "absolutely horrible." After five weeks, she returned to working as a dispatcher for the Sheriff's Department.
Personnel Reports
Morgan was given annual performance reviews and the administrative record contains many of the employee personnel reports Morgan's supervisor completed. Here, we provide an overview of Morgan's last four reports.
The August 2011 employee personnel report rated Morgan's performance as a dispatcher in over 20 categories as either above standard or standard and gave her an overall performance rating of above standard. The report said she was a dedicated employee concerned with officer and public safety and stated:
"Gloria, your knowledge and experience have made you an excellent dispatcher. In the past several years, you have handled more than your fair share of high priority events. Events that most dispatchers would never want to handle. At the time, you handled these events flawlessly and they have helped shaped the dispatcher that you are today."
The August 2012 employee personnel report also rated Morgan's overall performance as of above standard, with an above standard or standard ratings in the various categories. The report described Morgan's duties as follows:
"The dispatcher's job is demanding and very stressful. As a Sheriff's Dispatcher 2 you are expected to answer emergency and non-emergency phone calls, competently dispatch on all four of the Sheriff's Office radio channels, dispatch for Animal Control and the Probation Department when needed, and be proficient in all computer inquiry systems. The job of dispatcher requires you to make split second decisions and have the ability to multi-task. You have succeeded in all of these areas and have set a high standard for yourself and your co-workers."
The report described Morgan as hard working, dedicated, and always willing to work overtime-"the one person [her supervisor] can always count on when trying to fill a shift." The report also described Morgan as an excellent dispatcher who performed tasks in ways that promoted officer safety and stated: "In the past several years, you have handled more than your fair share of high priority events. These events helped shape the dispatcher that you are today." The report provided examples of situations handled by Morgan during the preceding year and then stated: "You remain calm and in control during high stress events. You handle all emergency traffic with ease. You keep your voice even and monotone, which helps calm the units." The report then described two laudatory notes Morgan received for her performance under pressure.
Morgan's August 2013 employee personnel report again rated her overall performance as above standard and rated her outstanding (the highest rating) in the categories of quality of judgment and performance under pressure. Morgan received above standard ratings for application of effort, accuracy of work, public relations, written and oral expression, performance with minimum supervision, promptness in completing work, volume of work produced, and the customer service subcategories of quality of service, helpfulness, knowledge, and responsiveness. The report provided examples of situations that supported the ratings of above standard.
Morgan's August 2014 employee personnel report rated her overall performance as standard and rated her as above standard in cooperation, application of effort, accuracy of work, quality of judgment, performance with minimum supervision, and performance under pressure. The report described Morgan "as an example of what a law enforcement dispatcher should be." It also stated: "Your call taking is clear and to the point and always covers officer and public safety first. You remain cool and calm on the radio when things go bad." Morgan's Stress and Anxiety
In May 2008, Morgan was working the radio, received a call about an accident, and started units to the scene. One responding deputy apparently pulled in front of another deputy's car, his vehicle was "t-boned," and he was killed. Later, Morgan reported this incident as what started her symptoms.
In August 2013, Morgan consulted with a therapist, complaining about moderate depression, mild anxiety, severe job stress, and moderate insomnia.
On September 9, 2013, Morgan was on the radio assisting deputies who were chasing two suspects through backyards and over fences. A suspect and deputy exchanged shots. The deputy reported the address and Morgan transposed numbers when she wrote it down, which resulted in the backup deputies being sent to the wrong location. The pursuing deputy ended up shooting the suspect. Morgan was upset by her mistake, and she reported that the deputies in a debriefing meeting were upset and surprised by the mistake. After the meeting, she became anxious, nervous and worried, with crying spells during her breaks. After one of the breaks, her supervisor noted that she was upset and started the process for Morgan to be seen by a doctor. In connection with that process, Morgan reported her job was causing her stress and anxiety stating that, over the years, she had become more anxious about (1) being unable to keep up with the large volume of telephone and radio traffic and (2) causing a unit to be injured or killed.
On September 16, 2013, Irene Sanchez, M.D., examined Morgan and completed a doctor's first report of occupational injury or illness form. Dr. Sanchez identified October 1, 1998 in response to the form's question about the date of injury or onset of illness. In the form's box for how the accident or exposure happened, Dr. Sanchez wrote: "Ongoing and long time exposure to high stress." Dr. Sanchez reported that Morgan cried through the entire interview and described several shootings, a five-year-old incident where an officer was hit by a car and injured, and the incident where Morgan gave the wrong address to deputies called as backup and a deputy pursuing suspects on foot. Morgan stated the nature of the calls caused her stress, but felt she could return to work and wanted to return. Dr. Sanchez told Morgan she would help Morgan with medications, prescribed Zoloft and Ativan, and requested approval for Morgan to consult with Kathleen Murphy, Ph.D., an industrial psychologist, about causation. Morgan chose not to take the medications.
On September 20, 2013, Morgan filed a workers' compensation claim asserting stress, anxiety and posttraumatic stress disorder (PTSD). The claim was supported by Dr. Sanchez's report of her examination of Morgan.
On October 2, 2013, Dr. Murphy interviewed Morgan. Dr. Murphy's report stated Morgan reported symptoms of stress, including nightmares, difficulty sleeping, feeling lethargic, being very emotional and anxious at work, and being depressed when not at work. Dr. Murphy diagnosed dysthymia disorder with anxiety, stated Morgan "is suffering from a significant amount of depression and anxiety," reported a Global Assessment of Functioning (GAF) score of 65, concluded the predominant cause of Morgan's emotional distress was industrial factors and, therefore, Morgan had an industrial injury. Dr. Murphy stated Morgan did not want to take medication and recommended therapy sessions first and, if symptoms did not decrease, a reconsideration of medication.
Morgan saw Dr. Murphy twice and, in December 2013, requested a change of psychotherapist. Morgan met with Dr. Sanchez on October 14, 2013, November 25, 2013, and January 6, 2014. Morgan reported that she was doing better, was doing peer counseling with coworkers, her sleep disturbances were greatly decreased. She remained opposed to prescription medication but was willing to try diphenhydramine (Benadryl) if needed, and she was awaiting sessions with a new counselor.
On January 15, 2014, L. Scott Frazier, Ph.D., a psychologist, examined Morgan and reviewed available records. Richard North, Ph.D., a psychologist, participated in the evaluation as a consultant. Each doctor is a qualified medical examiner. During the evaluation, Dr. Frazier took Morgan's activities of daily living, personal and social history, recent occupational history, and current complaints. Morgan stated that she was no longer having crying spells during her breaks. The evaluation included a review of relevant documents and "a complex psychological testing battery as well as a mental status examination."
One of the tests given was the Minnesota Multiphasic Personality Inventory-2, which the doctor's report described as the most widely used objective test of personality. The test included scales that measure the validity of the responses. Morgan's scores on the validity scales "indicated a valid and interpretable clinical profile." Based on the pretest interview, mental status examination, history, and the psychological tests, the doctors diagnosed an "Adjustment Disorder with Anxiety," stated it was predominately caused by the September 9, 2013 incident, and concluded Morgan was "temporarily partially disabled psychologically." Their report stated Morgan was capable of continuing with her usual functions as a dispatcher, would benefit from psychological treatment to reach maximum medical improvement, and recommended six to eight individual cognitive-behavioral psychotherapy sessions.
From February through April 2014, Morgan treated with Jennifer Predolin, Psy.D. On April 29, 2014, Dr. Sanchez completed a primary treating physician's permanent and stationary report (form PR-4) stating Morgan was "95% improved" and that she has no problems with nightmares or difficulty sleeping and "has no problems with her usual and customary duties as she shifted from nights to days." The report stated Morgan's anxiety and stress was "resolved" and "there is a 0% Whole Person Impairment." Dr. Sanchez discharged Morgan as cured and did not schedule a follow-up visit.
In September 2014, Morgan had another incident at work that triggered her stress and anxiety. It involved a two-year-old girl who drowned in a backyard kiddie pool. During an interview with KCERA investigators, Morgan described her reaction to the incident, stating: "I was sitting at the channel and I was just thinking about what a waste, what a shame that was, and I actually did get reprimanded for that because the supervisor that was on duty looked over and saw me sitting there because I wasn't doing anything. I wasn't typing, I wasn't answering any calls, I was just sitting there. And she - I was reprimanded for not continuing to dispatch, for taking that moment. And I just thought, this is really hard." Morgan stated multiple calls were going on, the call relating to the drowning was still in progress "because we were still on scene and stuff was still going on there," other calls needed to be dispatched because any death of a child automatically requires a homicide callout, and she was reprimanded "for just not keeping in motion the rest of the stuff that needed to be dispatched."
Morgan's primary care physician, Hugh Beatty, M.D., took her off work, with a leave of absence from September 20, 2014, until October 14, 2014. Dr. Beatty prescribed Lexapro, which Morgan found helpful, but she remained symptomatic.
On October 10, 2014, Morgan resumed care with Dr. Sanchez, who placed her on modified duty (i.e., clerical work with no dispatching) for a month. Dr. Sanchez's progress report noted Morgan had a counseling session scheduled with Dr. Frazier and requested authorization for 12 sessions of consultation and treatment with Dr. Frazier.
On October 27, 2014, Morgan again met with Dr. Sanchez. Dr. Sanchez's progress report stated Morgan has been authorized to see Dr. Frazier, but the appointment was scheduled for November 19, 2014, and Morgan asked to see someone sooner. Dr. Sanchez continued the Lexapro prescription, which Morgan stated helped slightly, and added Elavil at bedtime to help sleep and lessen anxiety. Dr. Sanchez's office left messages with the claim adjuster, Dianne Proctor, to get the authorization changed to Dr. Greg Hirokawa, if he could see Morgan sooner than Dr. Frazier.
On October 31, 2014, Morgan saw Dr. Frazier. His progress report from that examination stated Morgan subjective complaints were ongoing crying, feelings of hopelessness, sadness, and anger as herself and coworkers. The objective findings line in the report stated: "She presents with symptoms of anxiety and depression." The diagnoses line stated: "Per Dr. Frazier's report of 1/15/14 of Adjustment Disorder with Anxiety." Dr. Frazier stated he would provide cognitive behavioral therapy for 12 approved sessions, the next session would be on November 7, 2014, and Morgan could perform modified work pursuant to directions of her primary care physician. Dr. Frazier's progress report from the November 7, 2014 meeting provided the same information.
Dr. Sanchez and Morgan also met twice in November and once in December 2014. Dr. Sanchez continued Morgan's work restrictions to January 20, 2015.
Dr. Hirokawa, a clinical psychologist and qualified medical examiner, first saw Morgan on December 30, 2014. In the subjective section of the progress note from that visit, Dr. Kirokawa stated that (1) Morgan was currently doing light duty clerical work with no problems, (2) Morgan was doing better with no dispatching duties but was likely to get worse with those duties, and (3) Morgan stated it was difficult being by herself and she was fearful of getting someone hurt. The objective section of the progress note stated Morgan's affect was tearful and that she should continue with current restrictions.
Dr. Hirokawa also saw Morgan in January and February 2015. His January 23, 2015 progress note stated Morgan had reached maximum medical improvement and he considered her "permanently partially disabled from performing her usual and customary [duties] of dispatcher with a restriction of not to perform potentially life threatening decisions or calls." He rated Morgan at 8 percent Whole Person Impairment and gave her a GAF score of 65. His February 9, 2015 progress note again stated Morgan had reached maximum medical improvement, her depression had continued, and she was unlikely to be able to perform duties involving life threatening situations.
Dr. Sanchez and Morgan met on January 20, 2015, and Morgan's work restrictions were continued to February 17, 2015. Dr. Sanchez's progress report stated Dr. Hirokawa had recommended Morgan retire from her position as he did not think she could do dispatching and did not think she would get better. Morgan indicated she would submit her retirement paperwork. Morgan also stated she did not want to continue with psychotropic drugs and had stopped taking Lexapro, although she felt better when on it.
On February 19, 2015, Dr. Sanchez met with Morgan and then completed a primary treating physician's progress report (form PR-2) and a primary treating physician's permanent and stationary report (form PR-4). Dr. Sanchez diagnosed Morgan has having anxiety and stress with an aggravation of stress on October 10, 2014. Based on Dr. Hirokawa's conclusions, Dr. Sanchez "also declare[d] her Maximum Medical Improvement with provision of Future Medical Care" and concurred in his rating of 8 percent Whole Person Impairment. Dr Sanchez answered "Yes" to the question: "Is the permanent disability directly caused by an injury or illness arising out of and in the course of employment." Dr. Sanchez stated Morgan was still struggling with anxiety and had difficulty sleeping due to stress. Morgan wanted counseling and felt Dr. Hirokawa was not addressing her needs by just telling her that she would not be able to go back to work. Dr. Sanchez concluded that Morgan should get counseling for depression, stated she did not believe Dr. Hirokawa was providing this service, and requested authorization for 12 counseling sessions with Dr. Murphy. Morgan's work restrictions were continued to March 10, 2015.
On February 24, 2015, a claims adjuster notified the Sheriff's Department of Morgan's permanent restrictions. The notice also requested an interactive process meeting be scheduled with Morgan to discuss the restrictions and options for modified or alternate work.
Application for Disability Retirement
On March 1, 2015, Morgan signed an application for a service-connected disability retirement and submitted it to the Kern County Employees' Retirement Association (KCERA). The application was supported by an attending physician report from Dr. Irene Sanchez that stated Morgan was permanently incapacitated from performing her usual duties, her restrictions were no dispatching and no attending calls that require emergency decision making, and clerical work was a reasonable permanent accommodation.
On March 19, 2015, at the interactive process meeting, Morgan was offered alternate employment in a clerical position at the county jail. The next day, Morgan accepted the position. However, Morgan did not stay at that job. She stated she left after an incident where she pulled into the facility, saw a deputy who use to work with a deputy who had been killed on duty, and immediately began crying.
In April 2015, the Sheriff's Department completed a "Department Statement of Facts and Circumstances" for Morgan stating there was no reasonable accommodation in the job classification of Sheriff Dispatcher II that could be made for Morgan with her permanent restrictions (i.e., no answering 911 calls or attending to calls requiring emergency decision making). It also stated alternate work was offered to Morgan in a different job classification.
On March 31, 2015, Dr. Murphy met with Morgan. They had at least five other appointments, with the last occurring on June 24, 2015. Dr. Murphy's progress report from the first meeting stated Morgan was tearful and depressed, but reported Lexapro helps. It also stated Morgan was a perfectionist and it was very hard for her to know she cannot dispatch anymore. The assessment section of the report gave a diagnosis of "300.4," a GAF score of 60, and Morgan's current disability status as "TPD." The May 7, 2015, progress report stated Morgan reported doing much better and looked better but was still tearful at times when talking about work. Dr. Murphy increased Morgan's GAF score to 65. The May 21, 2015 progress report stated Morgan reported it was a rough week because the anniversary of the deputy's death was two days away and reported sleeping better.
The June 4, 2015 progress report stated Morgan was doing better emotionally, looked good and had decreased depression. Morgan reported the medication was doing well, she was sleeping good, and she now cries only in therapy. Dr. Murphy's diagnosis was PTSD with a permanent and sedentary disability status of 16 percent. The June 24, 2015 progress report stated Morgan was doing well at the time, no further sessions had been scheduled, and Morgan could ask Dr. Sanchez to send her back if her condition worsened. Dr. Murphy listed the diagnosis as PTSD, gave Morgan a GAF score of 70, and wrote "P+S" as the current disability status.
On August 4, 2015, Morgan saw Dr. Sanchez for anxiety and stress after getting together with former coworkers. Morgan reported that she had been able to sleep, she was not working, she was doing well with Lexapro, and Dr. Murphy had recommended that she not return to work for the county. Dr. Sanchez's progress report diagnosed Morgan with anxiety and stress, stated "[s]ame temporary work restrictions," and scheduled a follow-up appointment for six weeks later.
On September 24, 2015, Morgan asked Dr. Sanchez to reduce her daily Lexapro dose from 20 milligrams to 10 milligrams, which Dr. Sanchez did.
On April 1, 2016, Morgan had an unscheduled visit with Dr. Sanchez that was arranged by her adjuster. Morgan had been working for a new employer in a "planner" position that required minimal telephone work. When another employee quit about three weeks earlier, Morgan had been pulled from her usual duties to do dispatching. Morgan reported it brought on flashbacks to her experiences with the Sheriff's Department and was feeling a lot of anxiety and, without Lexapro, she had started crying. Dr. Sanchez prescribed Lexapro and requested approval of four sessions of treatment with Dr. Murphy. Dr. Sanchez reported that there had been an aggravation of preexisting anxiety which was a change in Morgan's condition.
In 2018, James O'Brien, M.D., a Diplomate of the American Board of Psychiatry and Neurology was retained by KCERA to review Morgan's disability medical records. Dr. O'Brien's written evaluation responded to a question about objective evidence of the disability claimed by stating: "There are little to no objective medical findings. Most diagnostic impressions offered by treating doctors have been based on subjective symptoms rather than objective findings." Dr. O'Brien stated that the medical records contained no objective evidence of psychotic or cognitive impairment that would prevent Morgan from performing the normal duties of her occupation. He noted that because the claim was psychological, most of the complaints would be subjective rather than objective, but there was very little evidence of objective psychological testing. He then stated: "Dr. Frazier's MMPI results from the exam of 1/23/14 were actually quite normal, showing only slight anxiety consistent with an Adjustment Disorder and a GAF of 65, which is not a major mental illness."
Addressing the medical treatment Morgan received, Dr. O'Brien stated: "The prescriptions have not been effective and medications were not changed frequently enough to optimize efficacy. The form of psychotherapy has been nonfacilitative and enabling." He also stated (1) Morgan "was not examined objectively enough, and secondary gain issues were ignored during treatment"; (2) Morgan "was not compliant with the recommendation for modified work and elected to simply retire instead"; (3) "[t]here is no substantial evidence that [Morgan] is currently incapacitated"; and (4) Morgan "is fully capable of returning to her former employment in the same capacity." Dr. O'Brien addressed the link between Morgan's employment and incapacity by stating "there was no evidence of substantial incapacity to begin with." Denial of Application
In May 2018, Morgan was notified that the KCERA's staff disability application group recommended a denial of the application and informed Morgan of her right to request on evidentiary hearing before a hearing officer. Morgan requested an evidentiary hearing
The hearing was held on November 5, 2018, and Morgan appeared without counsel. In January 2019, Morgan retained an attorney to represent her and prepare a closing brief. Later that January, the parties submitted their closing briefs to the hearing officer.
In February 2019, the hearing officer issued a 19-page decision that recommended Morgan's application be denied on the ground she was not permanently incapacitated from performing the job duties of a dispatcher. The hearing officer explicitly found Morgan "lacks credibility," which, on appeal, Morgan describes as a careless statement. The issue of whether Morgan's alleged disability was service connected was not reached. Morgan submitted written objections to the hearing officer's decision.
On August 14, 2019, the Board adopted the hearing officer's findings of fact and recommendation to deny Morgan's application for a disability retirement. KCERA notified Morgan of the Board's decision, stated the decision was final for all administrative purposes, stated judicial review had to be sought within 90 days, and cited Code of Civil Procedure section 1094.5.
PROCEEDINGS
In November 2019, Morgan filed a verified petition for writ of administrative mandamus challenging the Board's decision that she was not permanently incapacitated due to a work-related injury. The Board's answer admitted Morgan was a member of the KCERA and admitted Morgan had exhausted all her administrative remedies. The Board denied the allegations that its decision was not supported by the evidence or was otherwise erroneous.
Government Code sections 31470 (definition of member) and 31552 (automatic membership and waiver of membership).
In April 2021, the superior court held a hearing on Morgan's motion for a peremptory writ of mandate. A few days after the hearing, the court issued an unsigned minute order announcing its decision to affirm the Board's decision and deny the writ petition. The minute order set forth the court's rationale and directed counsel for the Board to prepare and circulate a judgment.
In July 2021, the superior court signed and filed a judgment denying the petition for writ of mandate. Morgan timely appealed.
DISCUSSION
I. BASIC LEGAL PRINCIPLES
A. Law Governing Disability Retirement
The County Employees Retirement Law of 1937 (CERL; Gov. Code, § 31450 et seq.) provides county employees with disability retirement benefits in certain situations. Government Code section 31720, subdivision (a) states: "Any member permanently incapacitated for the performance of duty shall be retired for disability regardless of age if, and only if: [¶] (a) The member's incapacity is a result of injury or disease arising out of and in the course of the member's employment, and such employment contributes substantially to such incapacity."
The employee has the burden of proving his or her incapacity is both permanent and service connected. (Rau v. Sacramento County Retirement Board (1966) 247 Cal.App.2d 234, 238; Lindsay v. County of San Diego Retirement Board (1964) 231 Cal.App.2d 156, 160-162.) "Incapacity" means the substantial inability of the employee to perform his or her usual duties. (Mansperger v. Public Employees' Retirement System (1970) 6 Cal.App.3d 873, 876 [interpreting "incapacity" under Gov. Code, § 21022].) An employee's incapacity is service connected if there is a" 'real and measurable' connection" between the employee's job and his or her incapacitating condition. (Bowen v. Board of Retirement (1986) 42 Cal.3d 572, 578.) The condition must "permanently incapacitate[ ]" the employee "physically or mentally for the performance of his duties." (Gov. Code, § 31724.)
B. Superior Court Review of Administrative Decision
Code of Civil Procedure section 1094.5 establishes administrative mandamus as the method for obtaining judicial review of an administrative agency's final adjudicatory decisions. (Paxton v. Board of Administration of the Public Employees' Retirement System (2019) 35 Cal.App.5th 553, 559 (Paxton).) One question that can be raised in a mandamus petition is "whether there was any prejudicial abuse of discretion" in reaching the decision. (§ 1094.5, subd. (b).)
When a superior court reviews an administrative decision that affects a vested, fundamental right, such as the retirement benefits for which Morgan applied, the superior court exercises independent judgment on the evidence pursuant to subdivision (c) of section 1094.5. (Ibid.; Alberda v. Board of Retirement of Fresno County Employees' Retirement Assn. (2013) 214 Cal.App.4th 426, 433 (Alberda).) Under independent judgment review, an "abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence." (§ 1094.5, subd. (c).)
Superior courts conducting an independent review "must afford the agency's decision a strong presumption of correctness and must impose upon the petitioner the burden of showing that the agency's findings are contrary to the weight of the evidence, i.e., the decision was not supported by the preponderance of the evidence." (Alberda, supra, 214 Cal.App.4th at p. 433.) If the superior court determines the administrative findings are not supported by the weight of the evidence, an abuse of discretion has occurred. (Ibid.)
" 'Because the [superior] court ultimately must exercise its own independent judgment, that court is free to substitute its own findings after first giving due respect to the agency's findings.' [Citations.] Thus, while the [superior] court begins its review with a presumption of the correctness of the administrative findings, the presumption is rebuttable and may be overcome by the evidence. [Citation.] 'When applying the independent judgment test, the [superior] court may reweigh the evidence and substitute its own findings for those of the [agency], after first giving due respect to the [agency] 's findings.' [Citation.] This includes examining the credibility of witnesses." (Alberda, supra, 214 Cal.App.4th at p. 433; see Barber v. Long Beach Civil Service Com. (1996) 45 Cal.App.4th 652, 658 ["[A]n exercise of independent judgment does permit (indeed, it requires) the [superior] court to reweigh the [administrative hearing] evidence by examining the credibility of witnesses."].)
C. Appellate Court Review
Generally, the standard of review applied by an appellate court depends on the particular aspect of the superior court's decision being challenged. (See Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711 [abuse of discretion is not a unified standard].) In this appeal, the relevant aspects of the superior court's decision include (1) its resolution of questions of law, (2) its findings as to disputed facts, and (3) its determination that Morgan, the party with the burden of proof, failed to carry that burden.
First, a superior court's resolution of a question of law, such as the interpretation of a statute, is subject to de novo review on appeal. (Paxton, supra, 35 Cal.App.5th at p. 559.) Thus, an appellate court decides a question of law without deference to how it was answered below. (Coburn v. Sievert (2005) 133 Cal.App.4th 1483, 1492.)
Second, a superior court's express or implied findings as to disputed facts are subject to review under the substantial evidence test. (Paxton, supra, 35 Cal.App.5th at p. 559; Valero, supra, 205 Cal.App.4th at p. 965.) Under this test, evidence is "substantial" if it is of ponderable legal significance, reasonable in nature, credible, and of solid value. (Meyers v. Board of Administration etc. (2014) 224 Cal.App.4th 250, 256; Brewer v. Murphy (2008) 161 Cal.App.4th 928, 935-936.) When applying the substantial evidence test "after the superior court has applied its independent judgment to the evidence, all conflicts must be resolved in favor of the respondent and all legitimate and reasonable inferences made to uphold the superior court's findings; moreover, when two or more inferences can be reasonably deduced from the facts, the appellate court may not substitute its deductions for those of the superior court." (Lacy v. California Unemployment Ins. Appeals Bd. (1971) 17 Cal.App.3d 1128, 1134; see Cameron v. Sacramento County Employees' Retirement System (2016) 4 Cal.App.5th 1266, 1278 .)
Appellate courts may not reweigh the evidence or resolve conflicts in the evidence and usually are bound by the trial court's credibility determinations. (Barber v. Retirement Board (1971) 18 Cal.App.3d 273, 279.)
Third, when the superior court has determined that the party with the burden of proof did not carry the burden, the appellate court considers" 'whether the evidence compels a finding in favor of [the appellant] as a matter of law.'" (Valero, supra, 205 Cal.App.4th at p. 966.) A finding in appellant's favor is compelled when the appellant's evidence was (1) uncontradicted and unimpeached and (2) of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding. (Ibid.; see Roesch v. De Mota (1944) 24 Cal.2d 563, 570-571.)
II. DECISIONS BELOW
A. Board's Administrative Decision
The hearing officer's decision was adopted by Board and, thus, became the final administrative decision subject to judicial review by writ of administrative mandamus. Accordingly, we refer to that 19-page decision as the Board's decision.
The Board's decision stated an applicant for a disability retirement had the burden of proof and that "there is an issue of whether the medical documentation is sufficient to support [Morgan's] claim of service-connected disability." It noted Morgan's doctors (Dr. Hirokawa, Dr. Sanchez, and Dr. Murphy) stated she was permanently disabled from ever returning to work as a dispatcher and the injury was 100 percent service connected. The decision also noted Morgan's workers' compensation record was relevant and should be considered, but the Workers' Compensation Appeals Board decision was not binding on the Board. The workers' compensation decision awarded Morgan $12,765 and stated she had a 16 percent permanent disability from a stress injury caused by her job as a dispatcher.
The Board's decision stated Morgan lacked credibility and explained in part by stating: "Her alleged symptoms do not align with the actual sequence of events, and at times she co-opts the experiences of other dispatchers to bolster her claims. Further, during the times she claims debilitating symptoms the results of her objective medical examinations show only slight symptomology or impairment." The decision also stated that the reports of Morgan's three doctors "are based on [her] history and subjective complaints and are not persuasive" and that the workers' compensation decision relied on Dr. Sanchez's report, which relied on Morgan's subjective complaints without any objective medical findings. The decision noted Dr. O'Brien reviewed 444 pages of medical records, prepared a comprehensive medical report, and opined that most of the diagnostic impressions from treating doctors were based on subjective symptoms rather than objective findings.
The Board's decision stated Dr. Frazier and Dr. O'Brien opined that there was no substantial evidence to support the conclusion that Morgan could not return to her job as a dispatcher. Morgan argues the doctor's opinions about substantial evidence are legal conclusions and, therefore, do not constitute substantial evidence. (See Smith v. Selma Community Hospital (2008) 164 Cal.App.4th 1478, 1515 [existence or nonexistence of substantial evidence is a question of law].) In addition, she argued Dr. Frazier's report is out of date because it was made before the drowning incident aggravated her psychiatric injury. She also argues Dr. O'Brien's opinions are speculative because they were inferred from GAF scores and the GAF test has been abandoned because it is unreliable.
Morgan cites the Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) and quotes its statement recommending that" 'the GAF be dropped from [the manual] for several reasons, including its conceptual lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice.'" The Board's decision stated Morgan's "contention that Dr. O'Brien relied too much on the GAF is not persuasive as [her] own physicians and therapists also relied on the GAF measurement." As a court of review, we may not reweigh the evidence, which includes the weight given to the GAF scores.
B. Superior Court's Decision
The superior court's reasoning is set forth in an unsigned minute order and the subsequently entered judgment. The superior court relied on Fukuda v. City of Angels (1999) 20 Cal.4th 805 in stating that (1) it was exercising an independent judgment review in considering the Board's decision and weighing the evidence before the Board; (2) the Board's finding came before it with a strong presumption of correctness; and (3)" 'the burden rests on the complaining party to convince the court that the board's decision is contrary to the weight of the evidence.' (20 Cal.4th at 812)" These three legal conclusions are subject to our de novo review, and we conclude the court correctly identified the principles governing its review of the Board's decision. (See pt. I.B., ante.)
After setting forth the principles applicable to its review, the superior court stated that Morgan "has not met her burden." As this court discussed in Valero, determining that the party with the burden of proof did not carry that burden is distinct from finding facts in favor of the opposing party. (See Valero, supra, 205 Cal.App.4th at pp. 965-966 [Part II, Standard of Review].) The finding-compelled-as-a-matter-of-law standard of review applied to a failure-of-proof determination is different from the substantial evidence standard of review applied to factual findings. (See part I.C., ante.)
The superior court could have stopped its analysis with its failure-of-proof determination, but it proceeded to an alternate level of analysis and addressed what the evidence had proven, stating: "As discussed below, the Court finds that the evidence as a whole, as set forth in the administrative record, preponderates in favor of [the] Board, and its decision." Next, the court stated: "The findings of the hearing officer, as adopted by the Board, sets forth a very th[o]rough recitation of the evidence, law, and support for the decision. There is not a need to repeat the same here." One inference that can be drawn from the court's statement that the contents of the Board's decision need not be repeated is that the court correctly regarded the findings in the administrative decision as irrelevant because it independently made its own findings under the preponderance of the evidence standard. In other words, the administrative findings were superseded by the findings made by the court after its independent evaluation of the evidence in the administrative record.
Immediately after stating the findings in the administrative decision need not be repeated, the superior court stated:
"Dr. Frazier, with agreement from Dr. North, opined that [Morgan] '...is able to continue with her current position as a dispatcher with the Kern County Sheriff's Department.' (COK-191) The opinion(s), vas [ sic ] evidence, of these well qualified Doctors is substantial and in and of its self, strongly supports the Board's decision. Clearly the opinion(s) is bolstered further by the evidence presented by Dr. O'Brien; a Diplomate of the American Board of Psychiatry and Neurology; which evidence is substantial and supports the findings of the Respondent Board.
"The Court does not propose to respond to all of [Morgan's] arguments, however, must note that all of the health care providers involved In this case relied on an assessment of GAF, and thus the Court must conclude that all were conveying the opinion that Petitioner was able to function relatively normally."
Based on the foregoing, the superior court stated the writ petition was denied and the Board's decision was affirmed.
III. MORGAN'S CLAIMS OF SUPERIOR COURT ERROR
Morgan's opening brief sets forth three issues involving superior court error.
First, Morgan contends the court erred because she met her burden of proof to be granted a service-connected disability retirement by providing substantial evidence in support of her application. Second, Morgan contends the court's reasons for denying her service-connected disability are not supported by the facts in the record because Dr. Frazier's opinion was out of date since it was given before she returned to work and aggravated her psychiatric injury. Third, she contends the "court's judgment and its reliance on the proposed decision was an error because the proposed decision and the attacks on Ms. Morgan's credibility is not supported by the facts in the record." A. Failure of Proof Determination
Morgan's use of the term "proposed decision" is not accurate because the hearing officer's decision was adopted by the Board. Thus, the Board's decision is properly described as a "final administrative . . . decision" as that term is used in Code of Civil Procedure section 1094.5, subdivision (a).
The superior court's judgment stated that" 'the burden rests on the complaining party to convince the court that the board's decision is contrary to the weight of the evidence'" and that Morgan "has not met her burden." On appeal, Morgan contends she met her burden of proof to be granted a service-connected disability retirement by providing substantial evidence in support of her application. Morgan supports this contention by arguing that (1) the burden of proof in the administrative proceeding for a service-connected disability retirement is a preponderance of substantial evidence and (2) her psychiatric permanent incapacity is established by the preponderance of substantial evidence. Morgan's challenge to the court's failure-of-proof determination fails to use the appropriate standard of review.
Since Valero was issued, no subsequent published decision of the Court of Appeal or the California Supreme Court has disagreed with its conclusion that a superior court's failure-of-proof determination is review on appeal under the finding-compelled-as-a-matter-of-law standard. In addition, this court has published two other opinions applying this standard to a lower tribunal's failure-of-proof determination. (See Wells Fargo Bank, N.A. v. 6354 Figarden General Partnership (2015) 238 Cal.App.4th 370, 390 [standard applied to superior court's order determining redemption price in a judicial foreclosure proceeding]; Dreyer's Grand Ice Cream, Inc. v. County of Kern (2013) 218 Cal.App.4th 828, 838 [standard applied to determination by county's assessment appeals board that taxpayer did not meet its burden of proving an obsolescence adjustment should have been applied to his property].)
In Valero, a case in which a former county employee challenged the county retirement board's denial of his application for a service-connected disability retirement, the issue on appeal was "framed as whether there is substantial evidence in the record to support the trial court's conclusion that Valero had not met his burden to show a real and measurable connection between his psychiatric disability and his employment." (Valero, supra, 205 Cal.App.4th at p. 965.) We rejected the parties' framing of the issue because "there is a conceptual and substantive distinction within the substantial evidence analysis depending on who has the burden of proof on a particular issue, which party prevailed on that issue and who appealed." (Ibid.) When the superior court makes a failure-of-proof determination, the issue on appeal is whether the evidence compels a finding in favor of the appellant as a matter of law. (Id. at p. 966.) To satisfy this standard of review, Morgan must show that her evidence was uncontradicted and unimpeached and of such a character and weight as to leave no room for a superior court determination that it was insufficient to support a finding in her favor. (Ibid.)
Morgan's evidence was contradicted by the opinion of Dr. O'Brien that she "is fully capable of returning to her former employment in the same capacity." Under the applicable standard of review, this court may not reweigh the evidence or resolve the conflict in Dr. O'Brien's opinion and the evidence relied upon by Morgan. (See Barber v. Retirement Board, supra, 18 Cal.App.3d at p. 279.) We do not provide a detailed analysis of the evidence because Morgan's appellate briefs did not acknowledge the applicable standard of review and present arguments attempting to show that a finding in her favor was compelled as a matter of law.
C. Substantial Evidence to Support Superior Court's Findings
As an alternative to determining Morgan had not met the burden, the superior court found "that the evidence as a whole, as set forth in the administrative record, preponderates in favor of Respondent Board, and its decision." Challenging this finding, Morgan contends "there is no substantial evidence to support the lower court's decision."
This contention and Morgan's arguments about credibility need not be addressed because the superior court's determination that Morgan did not meet her burden provides sufficient grounds for upholding the denial of the petition for writ of administrative mandamus.
DISPOSITION
The judgment is affirmed. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
WE CONCUR: LEVY, Acting P. J., MEEHAN, J.