Oswald v. S.F. Employees' Retirement Sys. CA1/2 ( 2013 )

Filed 12/27/13 Oswald v. S.F. Employees’ Retirement Sys. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
WILLIAM A. OSWALD,
Plaintiff and Respondent,
A136293
v.
SAN FRANCISCO CITY AND COUNTY (San Francisco County
EMPLOYEES’ RETIREMENT SYSTEM, Super. Ct. No. CPF-12-511935)
Defendant and Appellant.
I. INTRODUCTION
William Oswald fractured his back in the course of his employment as a San
Francisco firefighter and paramedic and was unable to return to work. A dispute arose
between Oswald and the San Francisco City and County Employees Retirement System
(the Retirement System) regarding the proper amount of Oswald’s disability retirement
pension. Ultimately, the superior court issued a peremptory writ of mandate directing the
Retirement System to adjust Oswald’s retirement allowance to be 74 percent of his final
compensation.
The Retirement System seeks reversal of the judgment on the grounds that the trial
court (1) misinterpreted provisions of the San Francisco City Charter (the S.F. Charter)1
which govern the calculation of a disability retirement allowance; and (2) erroneously
1
We grant the Retirement System’s motion for judicial notice of provisions of the
S.F. Charter and of the San Francisco Administrative Code which pertain to the issues on
appeal. (Evid. Code, §§ 451 & 459.) However, we deny its motion for judicial notice
of several San Francisco ballot propositions because they are not relevant to this appeal.
1
found that the Retirement System was bound by a disability determination made by the
San Francisco Workers Compensation Appeals Board (WCAB). We reject these claims
of error and affirm the judgment.
II. STATEMENT OF FACTS
A. Oswald’s Injury
In August 2001, Oswald was employed by the San Francisco Fire Department as a
firefighter/paramedic. Before that he had been a firefighter in the Air Force for two years
and in Sausalito for eight years.
On May 10, 2006, Oswald was working at a fire station on Polk Street when he
responded to a medical call for a woman who was in cardiac arrest. While carrying the
victim on a backboard down a narrow hallway, Oswald turned to hand some equipment
to a co-worker when he felt a “pop” in his lower back and his left leg went numb below
the knee. A CT scan revealed that Oswald had fractured his back and his neurosurgeon,
Dr. Bruce McCormack, recommended surgery, which was performed on October 31.
Oswald’s back was “fused with five screws, two titanium rods and an intravertebral body
bone plug.”
Over the next year, Dr. McCormack monitored Oswald’s recovery and reported on
his progress noting, among other things, that Oswald was eventually able to reduce his
pain medication but that he continued to experience back pain, stiffness, and numbness in
his left leg. In October 2007, McCormack reported that Oswald “ ‘can no longer run. He
cannot sit or stand for [a] prolonged period of time. He can’t lift heavy weights. He
notices left leg numbness and weakness and has difficulty sleeping at night. He still
cannot bend completely pain-free or go through a full day without medications.’ ” Dr.
McCormack restricted Oswald from lifting 25 pounds, from repetitive bending or
stooping, and from prolonged standing or sitting.
B. Oswald’s Application for Industrial Disability Retirement
On November 26, 2007, Oswald applied to the Retirement System for industrial
disability retirement. The requested date of retirement was November 1, 2007, and the
2
basis of the disability was described as “L-4 fractures (L-4, L-5 fusion surgery—titanium
rods, screws).”
Oswald’s disability retirement application was submitted to the San Francisco
Retirement Board, the body established by the S.F. Charter for the purpose of
administering the Retirement System for the City and County of San Francisco (the City).
(S.F. Charter, § 12.100.) The Retirement Board referred Oswald’s application to the
California Office of Administrative Hearings pursuant to section A8.518 of the S.F.
Charter, which provides that any application for disability retirement “shall” be decided
by a “qualified and unbiased hearing officer” employed by the Retirement Board.
At a July 24, 2008, hearing before Administrative Law Judge (ALJ) Michael
Cohn, the Retirement System stipulated that Oswald’s back condition was the result of an
industrial injury. On August 21, 2008, ALJ Cohn issued an order granting Oswald’s
application for industrial disability retirement. ALJ Cohn found, among other things, that
Oswald had not worked since May 2006, that his employer had not offered him any light
or modified duty, and that the restrictions imposed by his doctor had not been lifted.
Ultimately, ALJ Cohn concluded that “the evidence presented established that applicant’s
back injury renders him substantially unable to perform the usual duties of a
firefighter/paramedic, duties that would entail heavy lifting, repetitive bending and
stooping, and prolonged standing or sitting, all of which he cannot do.”
The date of Oswald’s disability retirement was set at November 1, 2007. As of
that date, Oswald was 37 years old which meant that he did not qualify for a “service
retirement.” (S.F. Charter, § A8.598-2 [firefighter must have at least five years of service
and be at least 50 years old to qualify for service retirement].) Therefore, the Retirement
System calculated Oswald’s disability retirement pension pursuant to section A8.598-3 of
the S.F. Charter (section A8.598-3), which states in relevant part:
“Any member of the fire department who becomes incapacitated for the
performance of his or her duty by reason of any bodily injury received in, or illness
caused by the performance of his or her duty, shall be retired. If [a member of the fire
department] is not qualified for service retirement, he or she shall receive a retirement
3
allowance in an amount which shall be equal to the same percentage of the final
compensation of said member, as defined in Section A8.598-1, as his or her percentage of
disability is determined to be. The percentage of disability shall be as determined by the
Workers’ Compensation Appeals Board of the State of California upon referral from the
retirement board for that purpose; provided that the retirement board may, by five
affirmative votes, adjust the percentage of disability as determined by said appeals board;
and provided, further, that such retirement allowance shall be in an amount not less than
50 percent nor more than 90 percent of the final compensation of said member, as defined
in Section A8.598-1.”
As reflected in this quoted language, the formula for calculating Oswald’s
disability retirement pension was a percentage of his final compensation that was equal to
the percentage of his permanent disability as calculated by the Workers’ Compensation
Appeals Board (WCAB) “upon referral from the retirement board for that purpose . . . .”
(S.F. Charter, § A8.598.3.)
In this record we find no indication that the Retirement System actually made a
“referral” of this matter to the WCAB. Although the parties do not address this fact, it
appears they both assume the referral was automatic because, as is often the case, Oswald
had a parallel workers’ compensation claim related to his May 2006 back injury.
However, when Oswald was granted disability retirement, his workers’ compensation
claim was still pending. As the Retirement System concedes on appeal, “WCAB
decisions that may affect the amount of a pension are often made after the pension
decision has been made . . . . ” In the meantime, the Retirement System paid Oswald the
minimum disability retirement allowance under section A8.598-3 of 50 percent of his
final compensation.
C. Oswald’s Workers’ Compensation Claim
There is no dispute on appeal that Oswald pursued a workers’ compensation claim
against the City for his May 2006 back injury. However, the record before us does not
contain a copy of the workers’ compensation claim form that was filed. The evidence
before us does establish that Oswald filed only one workers’ compensation claim (No.
4
063628) and that the claim was for a single injury, the May 2006 back injury. To resolve
that claim, Oswald participated in a series of medical and psychological evaluations.
In July 2008, Dr. Roy Curry conducted an “agreed” psychological evaluation of
Oswald. Curry reported that Oswald was experiencing low levels of depression as well
as some degree of psychological distress, but no significant dysfunction. Problems
outlined in Curry’s report included ongoing physical pain even when taking medication, a
perceived loss of identity associated with the loss of a career, problems sleeping and
some sexual dysfunction. As a result of Dr. Curry’s report, the claims adjuster that was
assigned to handle Oswald’s workers’ compensation claim for the City’s Department of
Human Resources accepted Oswald’s “psychological condition [as] an industrial
compensable consequence to his back claim of May 10, 2006.”
In February 2009, Oswald underwent a neuropsychological evaluation performed
by Dr. Claude Munday who reported that Oswald had some cognitive deficits that were
attributable to three factors, pain, medicine effects and sleep deprivation. Dr. Munday
opined that all of these factors were a consequence of the May 2006 industrial injury.
In February 2009, Oswald also underwent another “Agreed Medical Evaluation,”
which was completed by Dr. Revels Cayton. Dr. Cayton determined that Oswald’s back
injury was the cause of several daily life impairments including a sleep disorder, sexual
dysfunction and gastroesophageal reflux disease (GERD). After conducting a
supplemental evaluation in December 2009, Dr. Cayton reported that, since Oswald’s
surgery, “he has had unremitting pain. He has disruptions of most activities of daily
living. He requires opiates and sedative hypnotics for sleep. He has developed
depression that has been unremitting and has increased in intensity over time.”
On July 19, 2010, a hearing was held before the Workers’ Compensation Division
of the Department of Industrial Relations. Oswald and the City submitted a joint request
to approve a settlement of Oswald’s workers’ compensation claim pursuant to a
stipulated award. The stipulation was executed by Oswald’s attorney and by an attorney
from the City Attorney’s office. The Workers’ Compensation ALJ approved that request
5
and adopted the stipulated award. The terms of the stipulated award are documented in
handwriting on a pre-printed, multiple page form.
The stipulated award document reflects that Oswald and the City agreed that
Oswald suffered one “specific injury” on May 10, 2006, and the affected “body parts”
were the lower back, left leg, GERD, sexual dysfunction, sleep disorder, arousal disorder,
deconditioning/respiratory, pulmonary symptoms, and “psych/neuro cognitive.”
Another section of the stipulated award contains a box for a description of the
“injury(ies) arising out of and in the course of employment.” In that box, somebody hand
wrote the following comments: “as outlined above, permanent disability as follows:
“1) Low back 43% per Dr. McCormack (treating) 1/27/10 report
“2) GERD 8%; sexual dysfunction 12%; sleep dysfunction 23%;
deconditioning/respiratory 19%, as per Dr. Cayton (AME) 12/18/09, 2/23/09 reports
“3) psych/neuropsych 11% as per Dr. Munday 3/6/09
“CVC-74%”2
In yet another part of the stipulated award, the parties agreed that Oswald’s injury
caused a temporary disability prior to the date of retirement for which Oswald had
already been paid, and a “permanent disability of 74%.”
D. Oswald’s Request to Adjust Retirement Allowance
In September 2010, Oswald submitted a written request that the Retirement
System adjust his retirement pension to reflect the 74 percent permanent disability rating
established by the WCAB award pursuant to section A.8.598-3 of the S.F. Charter.
On October 8, 2010, a Retirement System employee sent Oswald a letter denying
his request for a pension adjustment along with a copy of the Retirement Board’s “WC
Adjustment of Industrial Disability Retirement Allowance Policy” (the Pension
Adjustment Policy).
2
According to the Respondent’s Brief, “CVC” stands for “combined values
chart,” which is a disability rating established by the American Medical Association so
that physicians can account for the effects of multiple impairments with a summary
value.
6
The Pension Adjustment Policy is a three-page document that was approved by the
Retirement Board in August 2009 for the stated purpose of administering provisions of
the S.F. Charter and Administrative Code “that allow the Retirement System to adjust the
amount of industrial disability retirement benefits paid by the Retirement System to
safety members who are under the age of 50 and who have not yet attained 25 years of
credited service.”3
The Retirement System’s letter denying Oswald’s request for a pension adjustment
stated in relevant part: “Under the [Pension Adjustment] Policy you are not entitled to a
pension adjustment to 74% because your industrial disability retirement was granted
solely on your back injury. The WC determination (Stipulation for Award) shows you
received 43% permanent disability for your low back condition. Since your 43%
permanent disability for your back condition does not exceed the 50% threshold you
receive under the Charter, no adjustment can be made.”
Oswald submitted a request for review of the Retirement System’s decision to
deny his request for a pension adjustment. Pursuant to the Pension Adjustment Policy,
the matter was referred to the Office of Administrative Hearings for appointment of an
ALJ to serve as the “Industrial Disability Adjustment Hearing Officer,” and the matter
was decided without a hearing. On November 29, 2011, ALJ David Benjamin filed an
order denying Oswald’s request to adjust his industrial disability retirement allowance.
ALJ Benjamin concluded that “[S.F.] Charter section A8.598-3 sets the amount of
a firefighter’s industrial disability retirement allowance in accordance with his
‘percentage of disability.’ The ‘percentage of disability’ must refer to the condition or
conditions for which the firefighter was granted an industrial disability retirement. In this
case, applicant’s percentage of disability for his low back condition—the condition for
which he sought and was granted an industrial disability retirement—is 43 percent. The
3
At some time not evident from this record, the service retirement requirements
for a member of the fire department were changed; section A8.598-2 currently states that
those requirements are 50 years of age and 5 years of service.
7
retirement system correctly set applicant’s allowance at 50 percent of his final
compensation.”
In reaching this conclusion, ALJ Benjamin acknowledged that the WCAB
approved stipulations between the City and Oswald that each of the other five conditions
caused by Oswald’s back injury were (1) work-related; and (2) caused a permanent
disability. However, ALJ Benjamin concluded that these findings were not binding on
the Retirement System. ALJ Benjamin also concluded that these WCAB findings were
distinct from the question whether these other conditions incapacitated Oswald from the
performance of his duty, a question that the Retirement System Retirement Board had
never decided and which was within its sole jurisdiction to decide.
E. The Present Action
In April 2012, Oswald filed a petition for writ of mandate to compel the
Retirement System to increase his disability retirement from 50 percent to 74 percent.
The Retirement System opposed the petition, arguing that ALJ Benjamin correctly
interpreted and applied the relevant S.F. Charter provisions and that the WCAB
proceeding established that the percentage of disability for Oswald’s lower back
condition was 43 percent.
On May 16, 2012, the Honorable Harold E. Kahn conducted a hearing on the writ
petition. The court received the administrative record into evidence, conducted an
independent review of that record and entertained arguments before the case was
submitted. Thereafter, on May 21, the court filed an order granting Oswald’s petition.
The May 21 order states, in its material part:
“The City’s agreement that Petitioner is seventy four percent (74%) disabled as a
result of the 2006 injury to his back requires that Petitioner’s disability retirement
percentage also be seventy-four percent (74%) per section A8.598.3 of the San Francisco
Charter notwithstanding that the seventy-four percent (74%) includes injuries to parts of
Petitioner’s body other than his back and that Judgment be entered, providing that: [¶] A
Peremptory Writ of Mandate issue directing the Board of the San Francisco Employees’
8
Retirement System to adjust Petitioner’s retirement allowance to seventy-four percent
(74%) of his final compensation.”
III. DISCUSSION
A. Standard of Review
In the present case, the Retirement System contends that the judgment rests on an
improper interpretation of S.F. Charter provisions governing disability retirement. To the
extent our disposition of this appeal requires us to resolve questions of law, our review is
de novo. (Alameida v. State Personnel Bd. (2004) 120 Cal. App. 4th 46, 52.) However,
we do not independently review the superior court’s findings of fact. Rather, “the test on
appeal is the familiar substantial evidence test: namely, whether the evidentiary record
reveals substantial support, contradicted or uncontradicted, that the trial court’s
determinations are correct. [Citations.] Thus, under the traditional standards which
apply, all conflicts in the evidence must be resolved in favor of the respondent, indulging
all reasonable inferences to uphold the judgment, and deferring to the trial court on
inferences reasonably deduced from the facts. [Citation.] Additionally, if undisputed
facts can support more than one interpretation, the reviewing court is bound by the
factual interpretation made by the trial court. [Citation.]” (Geoghegan v. Retirement
Board (1990) 222 Cal. App. 3d 1525, 1529 (Geoghegan).)
B. Section A8.598-3
1. The Retirement System’s Contentions
The Retirement System’s primary claim of error is that the judgment rests on an
erroneous interpretation of language in section A8.598-3 of the S.F. Charter which states
that an industrial disability retiree who does not qualify for service retirement “shall
receive a retirement allowance in an amount which shall be equal to the same percentage
of the final compensation of said member . . . as his or her percentage of disability is
determined to be. The percentage of disability shall be as determined by the Workers’
Compensation Appeals Board of the State of California upon referral from the retirement
board for that purpose . . . .”
9
According to the Retirement System, the superior court committed legal error by
finding that this provision authorizes the WCAB to award a disability retirement pension
for any and all injuries that are compensable under the state’s workers’ compensation
system, whether or not those injuries were the basis for the Retirement Board’s decision
to grant the member an industrial disability retirement.
Preliminarily, it is important to clarify two aspects of the judgment below. First, it
does not authorize the WCAB to do anything; it directs the Retirement System to adjust
Oswald’s disability retirement allowance. Thus, the issue on appeal is whether this
directive is consistent with section A8.598-3, which indisputably governs the Retirement
Board’s calculation of Oswald’s disability retirement allowance.
Second, although the superior court based its ruling on section A8.598-3, it did not
make an actual finding that the percentage of disability determination required by this
provision pertains to every injury compensable under workers’ compensation law.
Without acknowledging this fact, the Retirement System intimates that such a finding is
implicit in this judgment because the 74 percent disability rating that the WCAB gave to
Oswald includes conditions other than the back condition that resulted in the
determination that he was entitled to a disability retirement. This wrinkle in the
Retirement System’s argument fundamentally changes the nature of its claim of error
because it incorporates a factual assumption, i.e., that the WCAB’s percentage of
disability determination is based on conditions other than the May 2006 back injury.
As we will explain, the Retirement System’s claim that the trial court committed
an error of law fails for two independent reasons. First, substantial evidence establishes
that the injury for which Oswald was granted disability retirement rendered him 74
percent permanently disabled. Second, and in any event, even if the WCAB’s 74 percent
disability determination in this case included injuries other than the injury that resulted in
the disability retirement determination, the superior court correctly applied section
A8.598-3. We will separately explain these two conclusions.
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2. The Judgment is Supported by Substantial Evidence
The factual premise of the Retirement System’s claim of legal error is that the
WCAB finding that Oswald suffered a permanent disability of 74 percent is based on
“conditions” that are distinct from the May 2006 injury which qualified him for disability
retirement.
ALJ Benjamin accepted and adopted the Retirement System’s factual theory. He
found, among other things, that (1) in the disability retirement proceeding, Oswald
claimed “disability only on the basis of a low back condition”; (2) Oswald’s worker
compensation case was not limited to his back injury, but also included claims for GERD,
sexual dysfunction, sleep dysfunction, deconditioning/respiratory impairment and
psyche/neurocognitive impairment; (3) because Oswald’s disability retirement claim was
based solely on his low back condition, ALJ Cohn did not determine whether any of the
other five conditions at issue in the WCAB proceeding were work-related or whether
they incapacitated Oswald from the performance of his duty; and (4) the percentage of
disability for Oswald’s low back condition, “the condition for which he sought and was
granted an industrial disability retirement” was 43 percent.
However, these findings were not compelled by the evidence. Indeed, in our view,
the overwhelming evidence is that (1) Oswald was granted industrial disability retirement
because he broke his back in May 2006; (2) Oswald’s workers’ compensation claim was
based entirely on the same May 2006 injury that resulted in the grant of industrial
disability retirement; (3) the five “conditions” referenced in the stipulated award were not
separate injuries but direct results of the May 2006 injury; and (4) the WCAB made a
determination that the percentage of disability Oswald suffered as a result of this single
May 2006 injury was 74 percent.
Every aspect of the Retirement System’s claim of legal error assumes that the
WCAB’s determination that Oswald is 74 percent permanently disabled includes and
embraces disabling conditions that are distinct from the 2006 back injury. The
Retirement System attempts to defend this factual assumption for the first time in its
reply brief.
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The Retirement System first contends that “the issue” in this case is not whether
Oswald’s “conditions were ‘manifestations of’ the incident that occurred on May [10],
2006, or even whether they were manifestations of his back injury. The issue is whether
they were caused by performance of duty and incapacitating for duty.” We disagree; the
factual issue presented by this appeal pertains to the nature of the disabling injury that
resulted in the decision to grant Oswald industrial disability. The record contains
substantial evidence that ALJ Cohn granted Oswald industrial disability retirement for a
May 2006 back injury, not for a lower back condition as the Retirement System assumes
(and ALJ Benjamin found).4 The record also contains substantial evidence that the
WCAB made a determination that the May 2006 back injury rendered Oswald 74 percent
permanently disabled.
The Retirement System also contends that the trial court was not “empowered” to
make factual determinations about Oswald’s conditions “in the first instance.” According
to this theory “[i]t was for the Retirement Board to address those issues through its ALJ,”
but since Oswald failed to submit these conditions to the Retirement Board ALJ, Oswald
could not properly seek “a finding on them in the first instance by the trial court on a
petition for writ of mandamus.” First, there has never been any dispute that ALJ Cohn
made all of the necessary findings to support the determination that Oswald’s May 2006
injury entitled him to industrial disability retirement. Second, ALJ Benjamin made
additional factual findings that the “conditions” referenced in the WCAB award were
distinct from and not part of the May 2006 injury. Thus, we reject the Retirement
System’s contention that these material factual issues were presented to the superior court
“in the first instance.”
Alternatively, the Retirement System claims that the trial court did not actually
make any factual findings regarding the “conditions” listed in the WCAB award.
Although the order granting Oswald’s writ petition does not contain express findings, the
4
Indeed, the first sentence of section A8.598-3 speaks of an incapacitating
“bodily injury received in, or illness caused by the performance of [a] duty,” but makes
no reference to an incapacitating “condition.”
12
trial court’s remarks at the hearing support our conclusion that the court did indeed find
that all of the conditions listed in the WCAB award were part of the May 2006 injury.5
Furthermore, “[i]t is well established that even in the absence of a specific trial court
finding, we are bound to presume a finding in support of the judgment. [Citation.]”
(Geoghegan, supra, 222 Cal.App.3d at p. 1530, fn. 5.) Here, substantial evidence
establishes that the “conditions” listed in the WCAB award were not separate injuries as
ALJ Benjamin found but, rather, they were direct consequences of the May 2006 injury
that resulted in the decision to grant Oswald industrial disability retirement. In other
words, the evidence in this record supports the superior court’s implied findings of fact
that the Retirement Board granted Oswald industrial disability retirement for a May 2006
injury and the WCAB determined that precisely the same May 2006 injury caused
Oswald to be 74 percent permanently disabled.
The factual premise of this entire appeal is that the judgment validates a
calculation of Oswald’s percentage of disability which includes conditions that had
nothing to do with ALJ Cohn’s finding that Oswald was entitled to an industrial disability
retirement. We reject this premise, which is based on the Retirement System’s unduly
constricted factual definition of the disabling injury that Oswald suffered. Instead, we
find substantial evidence in this record that the 74 percent permanent disability
calculation in the stipulated award was for precisely the same incapacitating injury that
resulted in the award of industrial disability retirement, i.e., the May 2006 back injury.
3. The Judgment Does Not Conflict with Section A8.598-3
Even if we could be persuaded that the WCAB’s 74 percent permanent disability
rating encompasses “conditions” that are factually distinct from the May 2006 back
5
For example, in response to the City Attorney’s argument that the Retirement
Board never made a “determination of disability” on the “nonback body parts,” the court
responded that “all of these other body parts, the sleep, the sexual d[y]sfunction, the
GERD . . . appear to me, from the administration record, to be just other manifestations
of the May 2006 industrial injury . . . .”
13
injury, we would affirm this judgment because we are not persuaded by the Retirement
System’s interpretation of section A8.598-3.
The Retirement System interprets section A8.598-3 as requiring that the
“percentage of disability” calculated by the WCAB must pertain solely to the specific
incapacitating “condition” that resulted in the award of a disability retirement. ALJ
Benjamin agreed with the Retirement System and made a finding of law that the
“percentage of disability” referred to in section A8.598-3 “must refer to the condition or
conditions for which the firefighter was granted an industrial disability retirement . . . .”
On appeal, the Retirement System contends that its interpretation of this charter provision
is correct and that we should adopt it as our own.
The Retirement System’s contention raises an issue of statutory interpretation
which we review de novo by applying “the normal rules of statutory interpretation.”
(Mason v. Retirement Board (2003) 111 Cal. App. 4th 1221, 1227.) In its appellant’s
brief, the Retirement System focuses almost exclusively on the rule of statutory
construction which gives “great weight and respect to an administrative agency’s
interpretation of a statute governing its powers and responsibilities.” (Id. at p. 1228.)
However, it overlooks a more fundamental rule which we find dispositive here: Our
primary goal is to ascertain legislative intent which “should be determined, if possible,
from the language of the statute at issue.” (Id. at p. 1227.)
Here, the Retirement System’s interpretation of section A8.598-3 conflicts with
the plain language of this charter provision. Section A8.598-3 does not speak in terms of
“conditions,” or in any way require that the WCAB’s determination of an injured
person’s percentage of disability must pertain exclusively to the “condition” or even the
“injury” for which the person was granted a disability retirement.
Section A8.598-3 uses clear and mandatory language to describe the formula for
calculating a retirement allowance for a disabled retiree who does not qualify for a
service retirement. That allowance “shall be equal to” the same percentage of his final
compensation as his “percentage of disability is determined to be,” and “the percentage of
disability shall be as determined by the Workers’ Compensation Appeals Board of the
14
State of California . . . .” (S.F. Charter, § A8.598-3.) This mandatory and unequivocal
language is not conducive to the Retirement System’s attempt to imply an additional
requirement that the WCAB’s determination of the percentage of disability must pertain
exclusively to the “condition” or even the “injury” for which the person was retired.
Indeed, the only language in section A8.598-3 which appears open to
interpretation is the phrase which provides that the WCAB’s determination is made
“upon referral from the retirement board for that purpose.” (S.F. Charter § A8.598-3.)
According to the Retirement System, the “purpose” of the “referral” to the WCAB is to
obtain a disability percentage for the precise injury that resulted in the disability
retirement, and nothing more. This argument might have weight if there were any
evidence in this record that the Retirement Board actually made a referral to the WCAB
for purposes of calculating a disability retirement allowance under section A8.598-3 in
this case. However, no such evidence exists.
Rather, the record before us suggests that the Retirement System has made an
efficiency-based policy decision to forego any referral contemplated by section A8.598-3,
and to rely instead on WCAB determinations that are made in the context of resolving
parallel workers’ compensation claims. For purposes of this appeal, we need not
question the propriety of that decision. However, we do not find any language in section
A8.598-3 which authorizes the Retirement System to parse the WCAB’s percentage of
disability determination into separate “conditions” for purposes of calculating a disability
retirement allowance.
To the contrary, section A8.598-3 expressly limits the Retirement Board’s
authority to “adjust” the WCAB’s percentage of disability determination by stating that
the percentage of disability “shall be as determined by the [WCAB],” with two
exceptions. First, the Retirement Board may, “by five affirmative votes,” adjust the
percentage of disability as determined by the WCAB. (S.F. Charter § A8.598-3.)
Second, the retirement allowance must be no less than 50 percent and nor more than 90
percent of the retiree’s final compensation. (Ibid.)
15
On appeal, the Retirement System ignores the mandatory directives in section
A8.598-3 and focuses instead on the nature and scope of its authority to administer the
City’s retirement system. It contends, for example, that the limitations it would read into
section A8.598-3 are appropriate if not necessary because authorizing the WCAB to
award a disability retirement pension for any and all injuries that are compensable under
the state’s workers’ compensation system is inconsistent with provisions of the S.F.
Charter which establish that the Retirement Board has “plenary” authority with respect to
the administration of the City’s disability retirement system. (See S.F. Charter §§ 12.100
and 12.103.)
Our interpretation of section A8.598-3 does not authorize the WCAB to award
pension benefits. Indeed, the WCAB’s procedure is not at issue in this case. However,
section A8.598-3, which is part of the same Charter from which the Retirement Board
claims its plenary authority, expressly requires the Retirement System to use the
WCAB’s determination regarding the retired employee’s “percentage of disability” in
order to calculate the retiree’s pension allowance.
The Retirement System also makes the related argument that section A8.598-3
should not, and indeed cannot, properly be interpreted as supplanting the S.F. Charter’s
disability retirement standards with substantive workers’ compensation law standards. It
emphasizes that the criteria for awarding workers’ compensation benefits are very
different than the eligibility requirements for a disability retirement, and it envisions a
panoply of unfair situations in which an injured employee who meets the less exacting
requirements for workers’ compensation will attempt to bootstrap his way into a lucrative
disability retirement.
First, many of the Retirement System’s factual worries are inapposite because the
section A8.598-3 procedure does not arise until after the disability retirement
determination has been resolved in favor of the disabled employee. Second, we
understand and appreciate that “[a]lthough both the Public Employees’ Retirement Law
and the workers’ compensation law are aimed at the same general goals with regard to
the welfare of employees and their dependents, they represent distinct legislative
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schemes. We may not assume that the provisions of one apply to the other absent a clear
indication from the Legislature.” (Pearl v. WCAB (2001) 26 Cal. 4th 189, 197.) Here,
however, we do have a clear indication from the Legislature in the form of section
A8.598-3 which requires that the Retirement System use the WCAB’s determination for
this express purpose.
Furthermore, contrary to the Retirement System’s theory on appeal, interpreting
section A8.598-3 in accordance with its plain language does not divest the Retirement
Board of its “ultimate decision-making authority respecting both eligibility for disability
retirement and the amount of disability retirement allowances.” As explained above, the
Retirement Board retains the authority to “adjust” the WCAB determination, albeit
pursuant to the procedure set forth in the S.F. Charter, i.e. “by five affirmative votes” of
the members of the Retirement Board. There is no dispute that the Retirement Board did
not take that action. However, at oral argument before this court, counsel for the
Retirement System suggested that its Pension Adjustment Policy is the functional
equivalent of the provision in section A8.598-3 which authorizes the Retirement Board to
adjust the WCAB’s percentage of disability determination. We disagree.
As reflected in our factual summary, the proceeding before ALJ Benjamin was
conducted pursuant to the Retirement Board’s Pension Adjustment Policy. The text of
that written policy suggests that its purpose is to account for the time lag between the
conclusion of a disability retirement proceeding and resolution of the related WCAB
claim. Thus, as a purely factual matter, the adjustment that is being made is to the
temporary retirement allowance set by the Retirement System, not to the WCAB
determination regarding the retiree’s percentage of disability. Furthermore, in our view,
this Pension Adjustment Policy could not properly be used for this latter purpose without
running afoul of section A8.598-3, which expressly sets forth the grounds upon which the
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Retirement Board may adjust the WCAB’s determination and the procedure for making
that adjustment.6
C. Estoppel
The Retirement System’s secondary argument is that the trial court erred by
holding that the stipulation in the WCAB proceeding was binding on the Retirement
Board. According to this theory, the stipulation that the City’s Department of Human
Resources entered into “for workers’ compensation purposes, regarding all of
respondent’s claimed disabilities” may have been binding on the City, but it was not
binding on the Retirement Board solely by virtue of the fact that the Retirement System
and the Department of Human Resources are both City agencies.
However, the superior court did not hold or intimate that the Retirement Board
was bound by the stipulation in the workers’ compensation proceeding because of its
inter-agency relationship to the City. Rather, the Retirement System was bound by that
stipulation because it was approved and adopted by the WCAB and, therefore, became
the WCAB’s determination regarding the “percentage of disability” for purposes of
applying section A8.598-3 of the S.F. Charter.
The Retirement System mistakenly relies on Geoghegan, supra, 222 Cal. App. 3d
1525. That case involved a San Francisco firefighter who applied for industrial disability
retirement after suffering a heart attack while on a ski trip. However, the plaintiff’s
cardiologist determined that the cold and altitude led to an unusual coronary artery spasm
which caused the plaintiff’s heart attack. In light of this evidence, the Retirement Board
denied the application for disability retirement, the trial court denied plaintiff’s petition
for writ of mandate and the Court of Appeal affirmed.
6
The propriety of the Pension Adjustment Policy is not at issue on appeal.
However, we are concerned that this policy appears to shift the burden onto the retiree to
convince the Retirement System to set his retirement allowance to conform to the
WCAB’s percentage of disability determination.
We also note for the record that there appears to be some merit to Oswald’s
contention on appeal that the Retirement System and its Board failed to comply with
several provisions of the Pension Adjustment Policy in their handling of this case.
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The Geoghegan court also rejected the plaintiff’s argument that the Retirement
System was collaterally estopped to deny a WCAB finding that plaintiff’s “heart trouble
was due to an industrial cause.” (Geoghegan, supra, 222 Cal.App.3d at p. 1531.) The
court found that, although there are some “ ‘limited circumstances’ ” under which a
WCAB award may collaterally estop an employee’s retirement board from relitigating
issues previously decided in a WCAB proceeding, most courts decline to give such
rulings collateral estoppel effect, “either because of a lack of identity of parties [citation],
or because of differences between the nature of the issues considered during a workers’
compensation proceeding and the nature of the issues considered by a retirement board
proceeding. [citations.]” (Id. at p. 1532.) Ultimately, the Geoghegan court found that
both of these factors supported the conclusion that the Retirement Board was not bound
by the WCAB determination that the plaintiff’s heart attack was an industrial injury. (Id.
at pp. 1533-1544.)
Geoghegan is both factually and legally inapposite. In that case, the Retirement
Board denied an application for industrial disability retirement because it found that the
disabling injury was not industrial, and the courts that reviewed that determination
concluded that the Board was not required to find otherwise simply because the WCAB
had reached a different conclusion on that issue. Here, by contrast, the Retirement Board
granted Oswald’s application for industrial disability retirement and the “industrial”
nature of Oswald’s disability is undisputed.
Furthermore, since the Geoghegan plaintiff was denied industrial disability
retirement, the decision makers in that case had no occasion to address the predecessor to
section A8.598-3 of the S.F. Charter which was in effect when that case was decided.
Here by contrast, there is no dispute that the calculation of Oswald’s pension was
governed by section A8.598-3, or that Oswald’s writ petition sought to enforce that
specific provision of the Charter. And, as we have already demonstrated above, a
straightforward application of section A8.598-3 does indeed bind the Retirement System
to the WCAB’s determination under the facts presented to the superior court in this case.
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In the end, the Retirement System concedes that “[t]he only sense, in which [the
WCAB] stipulation could be said to have any effect on the [Retirement] Board, was
through the Charter provision stating that the WCAB’s determination of the ‘percentage
of disability’ shall be the percentage used to compute the member’s retirement.” Despite
this concession, the Retirement System insists that the judgment must be reversed
because the WCAB’s determination of the percentage of disability was 43 percent and
the Retirement System was not bound or estopped by the City’s stipulation that Oswald
also suffered from other permanently disabling conditions. This final argument
underscores what we said at the outset of our analysis: This entire appeal is premised on
an erroneous factual assumption. We reject the Retirement System’s factual claim that
the WCAB’s determination of the percentage of disability was 43 percent. For purposes
of applying section A8.598-3, the WCAB’s determination of the percentage of disability
was 74 percent. Therefore, Oswald is entitled to an adjustment of his industrial disability
pension to reflect that fact.
IV. DISPOSITION
The judgment is affirmed.
Haerle, J.
We concur:
Kline, P.J.
Brick, J.*
* Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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