GLENN v. CITY OF INGLEWOOD

Reset A A Font size: Print

Court of Appeal, Second District, Division 7, California.

Morris GLENN, Plaintiff and Respondent, v. CITY OF INGLEWOOD, Defendant and Appellant.

No. B088274.

Decided: March 07, 1996

Charles H. Carpenter, Glendale, for Defendant and Appellant. Lemaire, Faunce, Pingel & Singer and Edward L. Faunce, Seal Beach, for Plaintiff and Respondent.

This proceeding—involving Morris Glenn's attempt to set aside the decision of the City of Inglewood denying his application for disability retirement from the fire department after Glenn had refused a modified light duty position—is now before us for the second time.   On a prior appeal by Glenn from a judgment denying his first amended petition for peremptory writ of mandamus, we reversed the judgment and remanded the cause for the trial court to exercise its independent judgment on the issue of “whether the weight of the evidence that was found to be credible and that was relied upon by the [City's] hearing officer, i.e., the reports of Glenn's treating physicians, supported the finding that Glenn was capable of performing the modified light duty position at the time it was offered to him.”  (Glenn v. City of Inglewood (Dec. 20, 1993 [B071548] ) typed opn. at p. 21.)   Thus, we held that “the trial court did not exercise its independent judgment upon the weight of that evidence, but considered other evidence impliedly rejected by the hearing officer.   Therefore, the judgment must be reversed for the trial court to undertake such a weighing process, something which we cannot do on appeal.”   (Id., at p. 22.)

After hearing on remand, the trial court entered judgment granting peremptory writ of mandate, wherein the trial court remanded the proceeding to City and commanded City to set aside its decision and to find that Glenn is “permanently incapacitated from performing any duties for the City and is directed to notify the Public Employees' Retirement System (PERS) of that finding․”  City has now appealed from the judgment.   City contends that the trial court on remand erred in two respects:  (1) It failed to exercise its independent judgment, and instead treated our prior opinion as merely a direction to enter judgment forthwith in favor of Glenn;  and (2) It failed to exercise its inherent authority to remand the matter to the hearing officer to clarify points raised in the prior court of appeal opinion.

FACTUAL AND PROCEDURAL BACKGROUND 1

From 1973 to January 28, 1985, Glenn worked first, as an apprentice fireman and then as a Fireman I for City Fire Department;  he was an employee of City and a safety member of the Public Employees' Retirement System.

In the period of 1980 to 1981, Glenn, who is Black, attempted to obtain a promotion from Fireman I to Engineer, which promotion required that he obtain certification on driving three classifications of equipment;  although he passed two of the certifications, the training officer at the time twice gave him failing scores of 69 and 68 on the third test, with 70 being a passing score;  at the time there were no Black Engineers employed by City Fire Department;  according to Glenn, quite a few Blacks had come through the training, and the officer failed quite a few of them;  Glenn felt that the officer had held him back, which caused him a great deal of stress.   After he was failed a second time, Glenn filed a grievance, obtained a different grader, and passed the test.

In late 1983 through 1984, Glenn experienced several incidents with former Chief Robert Osby, who left the City Fire Department in December 1984.   On one occasion in August 1984, Chief Osby criticized and embarrassed Glenn in front of his coworkers.   After Glenn was admonished by his captain for allegedly being disrespectful to the Chief, Glenn's back, neck and face broke out in a rash;  the City's doctor, Dr. Wallack, diagnosed Glenn with neurodermatitis related to stress, and gave him some gel.   In December 1984 Glenn was referred to Dr. Brath for a yearly physical required by City;  Brath's report noted that Glenn “has been in generally good health except for a period of stress during August to September 1984,” when he developed a rash over his trunk.   Dr. Brath also noted that “Stress associated symptoms are nil, however he [Glenn] notes that the stress level was quite high on the job but seems to be somewhat better presently.”

On January 28, 1985, in responding to an alarm, Glenn was driving the rear end of the fire truck when another vehicle ran a red light;  the fire truck jack-knifed and Glenn injured his back and elbow.   Glenn also developed a stress rash on his neck, back and face, and experienced severe stomach pains and headaches.   January 28, 1985, was the last day Glenn worked for City.   At his administrative hearing on his application for disability retirement, Glenn testified that at the time of the accident, he felt that he was going to die;  thereafter, he felt his occupation was extremely stressful;  he had seen several people burned alive and was often the first one at the scene with a fire victim after they knocked the fire down, and he had to “tell [himself] I have to overcome the fear of death,” and “I tried to make myself become used to seeing this, but I never could.”

On several occasions in February 1985, Glenn saw City's doctor in internal medicine, Dr. Toby Freedman, who diagnosed Glenn with cervical spine strain, contusion on his left elbow and neurodermatitis;  Dr. Freedman also characterized Glenn as temporarily totally disabled, the last report indicating such disability extended until April 16, 1985.   Dr. Freedman's February 19, 1985, report also noted “labile hypertension improved,” and “headache etiology.”   Dr. Freedman's April 16, 1985, report also contained a diagnosis of Glenn including “cervical strain;  neurodermatitis;  anxiety reaction.”   Freedman referred Glenn to Dr. Drucker, and noted in his report that Glenn was “off-duty until evaluated by Dr. Drucker.”   Although Dr. Freedman's April 16, 1985, report indicated that Glenn was temporarily disabled, it also indicated that Glenn was “discharged.”

At his administrative hearing on his application for disability retirement, Glenn testified that on March 13, 1985, he was informed that Dr. Freedman had released him to go back to work;  he received a letter informing him that his temporary disability benefits would terminate on March 11, 1985, because he was released to go back to work on March 12, 1985.   According to Glenn, the letter was a mistake and Glenn could not figure out why City was requesting him to go back to work when he had received a letter from Dr. Freedman indicating that he was still disabled.2  Glenn went to Dr. Freedman's office on March 13, 1985, and was told that he had been released to return to work and could not see the doctor;  after talking to another City employee about his skin rash, he was able to see Dr. Freedman again.   At this point, Glenn thought that he had better get a lawyer and felt that City “was trying to force me back into a situation that I wasn't ready to deal with at the time.”

After obtaining an attorney, Glenn filed for worker's compensation benefits and in June 1985 began treatment with a psychiatrist, Dr. Alfred Bloch.

On April 15, 1985, Glenn was seen by City's psychiatrist, Dr. Franklin Drucker, for a two-hour session.   According to Glenn, he did not feel comfortable with Dr. Drucker and did not open up to Dr. Drucker and express his full range of concerns and complaints.

In an April 23, 1985 report, Dr. Drucker stated that Glenn anticipated getting better and resuming work in a couple of months, but Glenn also told him that “right now I don't want to be dealing with sirens or bells or taking direct orders,” and that he also complained of anger because he was “taken off IOD status and had to use sick time, and [because] he was refused medical care by the City of Inglewood for awhile.”   Dr. Drucker concluded that “From a psychiatric perspective, Mr. Glenn is competent immediately to resume his usual employment as a firefighter.   There is no indication for vocational rehabilitation, training on a psychiatric basis.”   Dr. Drucker also stated that Glenn “has lifelong personality traits which affect his relationships and his ways of dealing with situations that he finds not to his liking.   These personality traits, which include dramatic complaining, dependency, negativism, unstable relationships, and proneness to somatic preoccupation, had not been seriously disabling in the past․  He also developed what he calls ‘a stress rash,’ but I do not know that he has any skin disease that is due to job stress.   He reports some physical discomfort related to the vehicular accident of late February [sic ] 1985 but there appears to be no significant organic pathology causing physical disability.   In general, the symptoms of which Mr. Glenn complains are those of dissatisfaction with a desire to manipulate his job for two more months off duty.   Such manipulation does not constitute work disability.”

Dr. Drucker also wrote that Glenn had an occupational problem that was “not a mental disorder but indicates this man's intermittent job dissatisfaction,” and that “I believe Mr. Glenn tends to distort his situation but I do not believe he is primarily malingering or ‘faking sick.’   The mild emotional disturbance he expresses is a result of his underlying personality disorder with some conscious manipulativeness.”

Glenn began treatment with his own psychiatrist, Dr. Bloch, in June 1985.   A June 1985, letter from Dr. Bloch stated that his “diagnostic impression was Post–Traumatic Stress Disorder.   Mr. Glenn is not able to return to work based on the information available to me, he has been disabled since January 28, 1985 and continuing.   I estimate that he will be disabled for [at] least the next three months.”   In a September 19, 1986 report, Dr. Bloch stated that Glenn continued to receive psychotherapy from his clinic on an as needed basis and sought treatment about once a month;  Glenn continued to manifest symptoms of anxiety and depression and was temporarily totally disabled from his usual employment;  because he “is so sensitized to the type of stress that can accompany work in areas dealing with public safety—e.g., a Fire Department or a Police Department—he is precluded from that type of employment.”   However, Bloch noted that Glenn “is motivated to return to work in some appropriate capacity as quickly as possible.   Vocational rehabilitation counseling and retraining are indicated, and should be implemented without delay.”

In a September 1985 report, Dr. Gross, an orthopedic surgeon, diagnosed Glenn with cervical sprain, occipitocervical neuritia, lumbar sprain, and contusion and possible sprain of his left elbow.   Dr. Gross also stated of Glenn that “At the present time, the patient remains symptomatic referable to his industrial accident.   He is not only having pain in his neck, lower back and left elbow, he continues to have emotional problems for which Dr. Bloch has him on disability.   I do not feel the patient's orthopedic problems have reached a permanent and stationary level or recovery.   The patient is advised that most likely a course of anti-inflammatory medication and cervical and lumbar stretching exercises ․ will be helpful․”

In December 1985, an internist, Dr. Lonky, diagnosed Glenn with a duodenal ulcer and “labile hypertension with exacerbation during periods of psychological stress and strain.”   Dr. Lonky concluded in his February 1986 report that Glenn was “temporarily totally disabled as a result of his stress-induced peptic ulcer disease,” and was “precluded from return to work until his ulcer is completely healed.   Furthermore, Mr. Glenn will require a permanent preclusion from work in a stress containing environment.”   Dr. Lonky also recommended vocational rehabilitation training.

A February 18, 1986, report by Dr. Sanford Kornblum, an orthopedic surgeon, stated with respect to Glenn that “I have performed a physical examination today and find that is entirely within normal limits.   I do not believe he has any residual major disability on an orthopaedic area.”

An April 30, 1986, report by internist Dr. Gary Zagelbaum concluded that Glenn did not then have hypertension, although “he does warrant periodic measurement of blood pressure,” in light of the fact that Glenn had a temporary rise in his blood pressure in February 1985.   Dr. Zagelbaum also stated that at the time of his examination in April 1986, Glenn had no evidence of any inflammatory skin problems;  Zagelbaum noted that Glenn “may have some orthopedic and/or psychiatric disability,” and deferred “to the psychiatrist in regards to the claimed psychiatric problem in this individual.”

In a July 9, 1986 report by Dr. Drucker, he takes issue with the diagnoses and conclusions of Dr. Bloch, whose reports Dr. Drucker reviewed.   Dr. Drucker noted that Glenn expressed some areas of concern to Dr. Bloch, including his complaints of past racial discrimination, but did not discuss these issues with him.   Dr. Drucker concluded:  “I feel very troubled by the inconsistencies of Mr. Glenn's tale as he provided it to me and as he provided it to Dr. Bloch but seven weeks later.   This kind of overstatement at Dr. Bloch's office, particularly coupled with his gross exaggeration in taking the MMPI, urges that Mr. Glenn dramatically exaggerates and manipulates his situation for conscious purpose of social and economic gain.  [¶] Mr. Glenn does not suffer a Post–Traumatic Stress Disorder.   He may have some occasional symptoms associated with unhappiness when things do not go as he wishes.   This does not represent a significant psychiatric disorder nor long-term psychiatric disability․  If Mr. Glenn does indeed contemplate retirement, I would not oppose his decision given his poor motivation to continue his job.   However, if motivated, from a psychiatric perspective, he is fully capable of performing the duties of his position․”

A June 3, 1986, letter of Dr. Bloch stated that Glenn continues to receive psychiatric treatment for post-traumatic stress disorder and he “currently is disabled for employment, and will not be able to reenter the labor market for at least another three months after this date.”

On June 23, 1986, City's fire chief sent a letter to Glenn which stated:  “Enclosed is a job description of a modified duty assignment of Assistant to the Training Officer and Fire Marshall.   After reviewing this job description, Drs. Zagelbaum, Drucker, and Kornblum are of the opinion that you are fully capable of performing these duties.”   After noting that the job duties included light office work and would allow Glenn to sit and stand at will, the letter ordered Glenn “to report to duty on Monday, July 7, 1986,” and that “Failure to appear could result in disciplinary action.”

Glenn wrote to City's fire chief stating that he was attaching two letters from Dr. Bloch, “stating my present medical condition,” and inviting the fire chief to contact Dr. Bloch.

An August 14, 1986, letter from City to Glenn stated:  “You were previously ordered to report to a modified duty assignment on July 7, 1986, but failed to appear.   Your letter of July 17, 1986, includes two letters from Dr. Bloch, the last one dated June 3, 1986, so apparently he never even reviewed the modified duty assignment that was sent to you on June 23, 1986.   This light duty position was reviewed by three of the City's doctors, who all agree you are capable of performing the duties of Assistant to the Training Officer and Fire Marshall.  [¶] You are ordered to appear at Fire Headquarters on August 20, 1986․  Failure to appear will be grounds for dismissal.”

Glenn testified at his administrative hearing that he felt that he had an ultimatum from the City to return to work, which was contrary to his treating doctors' orders.   He also admitted that at that time, in 1988, he had no plans to return to employment with City in any capacity, and “When I decided that this job was too much for me was around the time that I found out that I had an ulcer and I couldn't hold any food on my stomach․  I knew at that point there was no chance of me ever coming back here.”   He also testified that he decided to apply for retirement in January of 1986.

At the administrative hearing on Glenn's application for disability retirement, Chief Robert Hartzog testified that when he sent Glenn the letters in June and August 1986, he was following the advice of Dr. Drucker and the City Safety and Health Manager Randy Abrams;  he was aware in June 1986 of Glenn's back and stress problems, but did not know about his ulcer, of which he learned for the first time that day (during the administrative hearing on February 3, 1988).   Abrams testified that he relied upon Dr. Drucker's report in telling Chief Hartzog that Glenn could return to a light duty position.3

According to Hartzog, the modified light duty position which was offered to Glenn was developed about five years previously for people with disabilities during the period of their rehabilitation.   Three people had filled this position in the past for various periods of time, the longest period any person held the position was three years.   The light duty position is a permanent position at the same level as the firefighter's position;  a person in the light duty position could be promoted to engineer or captain.

At the hearing it was also established that the modified light duty position was not then, at the time of the hearing, open to Glenn;  according to City's legal counsel, Glenn was terminated and he was no longer an employee of City, unless he is reinstated at some later time through the grievance procedure;  the grievance procedure apparently was not resolved at the time of the administrative hearing on Glenn's application for disability retirement.

In a written determination dated June 2, 1988, the hearing officer made the finding that competent medical evidence indicated that Glenn cannot perform the full range of duties required of a Firefighter and that he “has an unusual combination of dermatological, psychiatric, orthopedic, and internal medicine ailments, as well as a possible blood pressure problem.   While it is unlikely that any one ailment would cause sufficient problems to prohibit him from performing the full range of Firefighter duties, in the opinion of the hearing officer the combination of those ailments and injuries would prevent him from performing satisfactorily and safely as a Firefighter.”   The hearing officer expressly stated that he gave more weight to the opinions of Glenn's treating doctors because a treating doctor “is employed not only to cure the individual, but also has a greater opportunity to observe and know the patient.”

However, the hearing officer also concluded that “The weight of medical evidence indicates that Mr. Glenn could have performed in the light duty position that was twice offered to him,” that Glenn “offered no evidence whatsoever that he is precluded from accepting a permanent modified light duty position as outlined in the City's exhibits,” and that there was no evidence “to suggest that the light duty assignment ․ offered any less than equal salary, fringe benefits, and promotional opportunities to those afforded to other employees in his classification in the Fire Department.”   Citing Winslow v. City of Pasadena (1983) 34 Cal.3d 66, 192 Cal.Rptr. 629, 665 P.2d 1, the hearing officer denied Glenn's application for disability retirement.

Glenn appealed the decision denying his application for disability retirement to the City Council of the City of Inglewood.   By resolution on August 30, 1988, the City Council adopted the decision and findings of the hearing officer.   Glenn then filed in the superior court a first amended petition for peremptory writ of mandamus.

After hearing, the superior court denied Glenn's petition on August 12, 1992.   Glenn appealed from the judgment denying his petition.   In a prior unpublished opinion, we reversed that judgment and remanded the cause to the trial court to reconsider the first amended petition.   Our opinion stated in pertinent part:  “We note that neither appellant [Glenn] nor respondent [City] challenged in the trial court or on this appeal the findings of the hearing officer that Glenn was disabled for the Firefighter position and that the opinions of his treating doctors were entitled to greater weight than City's medical experts.   Thus, the issue presented to the trial court by the instant petition was limited to whether the weight of the evidence that was found to be credible and that was relied upon by the hearing officer, i.e., the reports of Glenn's treating physicians, supported the finding that Glenn was capable of performing the modified light duty position at the time it was offered to him.   As we explain below, the trial court did not exercise its independent judgment upon the weight of the evidence, but considered other evidence impliedly rejected by the hearing officer.   Therefore, the judgment must be reversed for the trial court to undertake such a weighing process, something which we cannot do on appeal.   After the trial court has exercised its independent judgment in weighing the evidence, our task is to review the record to determine whether the trial court's findings are supported by substantial evidence.”  (Glenn v. City of Inglewood, supra, typed opn. at pp. 21–22.)

Our prior decision also stated that the trial court had relied upon “portions of the administrative record containing the reports of Drs. Kornblum, Gross, Zagelbaum, Rubin and Drucker.   With the exception of Dr. Gross, the other doctors were not Glenn's treating physicians and Glenn had seen each of these other doctors only once․  [¶] In this case, we cannot conclude that the hearing officer relied upon any of the above reports because such reports are clearly inconsistent with the hearing officer's evaluation of the credibility of the witnesses and determination that Glenn was disabled from performing the full range of Firefighter duties․  [N]either a hearing officer nor the trial judge is properly relying upon any medical authority when he relies upon a portion of one medical expert's report to support one finding and a portion of a different and inconsistent medical report to support a related finding.”  (Glenn v. City of Inglewood, supra, typed opn. at pp. 22, 24.)

Upon remand, the parties submitted memoranda of points and authorities.   In advance of hearing on August 26, 1994, the trial court issued a tentative ruling to grant the petition for writ of mandate.   The ruling stated in pertinent part:  “This proceeding is on remand from the Court of Appeal.   This court has been directed to determine whether the opinions of the treating physicians support the hearing officer's conclusion that [Glenn] was capable of performing the light duty position.  [¶] While the court of appeal determines that there should be an independent judgment standard of review, it limits that review to the treating physicians.   Respondent [City] is incorrect in arguing that this court can go beyond that directive.   This court is bound to determine whether or not light duty was appropriate in light of what the treating physicians determined.   Respondent's position that this court must review the testimony of all of the physicians is contrary to the opinion.  [¶] Upon reviewing those medical opinions, the court finds that the [hearing officer] erred in finding that [Glenn] was capable of performing the light duty position.   Dr. Bloch, [Glenn's] treating psychiatrist, unequivocally stated that [Glenn] was unable to work in any capacity in the fire department․  Dr. McKenna, the dermatologist, found that [Glenn's] rash was aggravated by work stress․  [¶] The other treating physicians, Dr. Lonky, the internist, and Dr. Gross, the orthopedist, expressed no opinion regarding the light duty position, and as such were not considered by the court.”

At time of oral argument, it was clear that the trial court disagreed with the prior appellate opinion, but the court acknowledged that the Court of Appeal opinion was the law of the case, and as such, “I've got to live with it.   And the Court of Appeals directs me to do one thing.”   The trial court pointed out that what City had done in its response “is to argue with the Court of Appeal.”

City filed timely notice of appeal from the judgment granting peremptory writ of mandate.

I

NO FAILURE TO EXERCISE INDEPENDENT JUDGMENT

 Without support in the instant record is City's contention that the trial court on remand misconstrued the prior appellate opinion as directing it to enter judgment in favor of Glenn without applying the independent judgment standard to the evidence and findings in the administrative record.

Our record is quite unambiguous as to the trial court's ruling and reasoning process, which is set out in its tentative ruling.   That ruling reveals that the trial court understood the prior appellate opinion as directing it to conduct an independent judgment review, and the tentative ruling describes such review and result.   Moreover, there is nothing which the trial court stated at the time of oral argument on August 26, 1994, which impeaches its tentative ruling or judgment in any manner.   Although begrudgingly, the trial court did indeed follow the directives set out in the prior appellate opinion.

Further, there is no evidence in our record that the trial court, as alleged by appellant, “improperly considered the court of appeal opinion to be binding on factual matters, as distinguished from matters of law,” and the trial court “erred regarding the factual issue of Glenn's capability of performing the light duty position.”   City argues that the trial court was not bound to accept the credibility of Glenn's treating doctors, and it would not violate the doctrine of law of the case for the trial court to disregard such evidence.

The problem with City's arguments is that, as explained in our prior opinion, “It is not contemplated by the code provision [Code Civ.Proc., § 1094.5] that there should be a trial de novo before the court reviewing the administrative agency's action even under the independent review test.   [Citations.]  Only where the record is augmented within the strict limits set forth is evidence on the main issues ever received at the trial.”   (Hadley v. City of Ontario (1974) 43 Cal.App.3d 121, 127, 117 Cal.Rptr. 513.)  “ ‘There is no authority, however, for a complete trial de novo.   Such a trial would constitute an invalid usurpation of the administrative adjudicatory power vested in the [administrative] board.’ ”  (Hackethal v. Loma Linda Community Hosp. Corp. (1979) 91 Cal.App.3d 59, 65, 153 Cal.Rptr. 783.)   Thus, “[i]n an administrative proceeding the determination of the credibility of witnesses is within the province of the [hearing officer].”   (Campbell v. Board of Dental Examiners (1971) 17 Cal.App.3d 872, 876, 95 Cal.Rptr. 351.)  “Credibility, or lack thereof, is for the factfinder, not the reviewing court, to determine.   The trier of fact's determination will be interfered with on appeal only when it appears that the witness's testimony is inherently so improbable as to be unworthy of belief.”  (See Thompson v. State Personnel Bd. (1988) 201 Cal.App.3d 423, 428, 247 Cal.Rptr. 210;  internal quotation marks omitted.)

As further explained in our prior opinion, the hearing officer in this case obviously relied upon Glenn's treating doctors to find that he had a number of ailments and injuries which disabled him from performing the full range of firefighter duties.   Doctors providing evidence favorable to City, Doctors Drucker, Kornblum, and Zagelbaum, all essentially found Glenn had no disability in each of their respective areas of specialty—psychiatry, orthopedics, and internal medicine.   For that reason, Dr. Drucker reported in April 1985, that from a psychiatric perspective, Glenn was “competent immediately to resume his usual employment as a firefighter.”   Because all of the foregoing doctors found no impediment to Glenn resuming work as a firefighter, it can be inferred that they all also would have found that Glenn would be capable of performing a light duty position.   However, the hearing examiner could not logically rely upon these implied determinations in the reports of Doctors Drucker, Kornblum, and Zagelbaum because the hearing examiner expressly rejected the express findings of these doctors in finding that Glenn had “an unusual combination of dermatological, psychiatric, orthopedic, and internal medicine ailments, as well as a possible blood pressure problem.”

Accordingly, the task of the trial court was to determine whether the weight of the evidence found credible by the hearing officer—the reports of Glenn's treating doctors—supports the administrative finding that Glenn could have performed the light duty position that was offered to him.   Our record reveals that the trial court performed this task, and City fails to establish any error by the trial court in conducting an independent judgment review.

Inasmuch as City does not ask us to review whether or not substantial evidence supports the trial court judgment, we need not do so.

II

NO ERROR IN FAILING TO REMAND TO HEARING OFFICER

 Without citation of any pertinent authority, City contends that the trial court erroneously failed to exercise its authority to remand the matter to the hearing officer to clarify his reasons for his decision and the evidence upon which he relied.   No error or abuse of discretion by the trial court in this regard appears on the face of the instant record.   Inasmuch as the hearing officer indicated he deemed more credible the reports of Glenn's treating doctors, there is no need for further clarification in this case because the administrative record provided an ample basis to determine the grounds of the hearing officer's decision.

 Moreover, it has been recognized that, as here, where the agency errs not in the conduct of the hearing, but in the results reached, there is no basis for reconsideration by the agency, which is not entitled to a second opportunity to establish its case.  (Newman v. State Personnel Bd. (1992) 10 Cal.App.4th 41, 49, 12 Cal.Rptr.2d 601.)   In Newman, the State Personnel Board upheld an employee's medical termination as an office assistant with the CHP;  the trial court concluded the Board's decision was not supported by substantial evidence and remanded to the Board for further proceedings;  the court of appeal stated that “Although we agree with the trial court that plaintiff's medical termination was not supported by substantial evidence, we disagree this matter should be remanded to the Board for further consideration.”  (Ibid.)  The court of appeal further stated:  “The relevant inquiry is whether the medical reports and other pertinent information available at the time establish such incapacity.   That inquiry has been conducted and remand for further determination of plaintiff's condition at the time of termination is therefore unnecessary.”  (Id., at p. 50, 12 Cal.Rptr.2d 601.)

In light of the foregoing, we can only conclude that City fails to establish the trial court erred or abused its discretion in failing to remand the matter to the hearing officer.   Therefore, the judgment granting peremptory writ of mandate is affirmed.4

DISPOSITION

The judgment granting peremptory writ of mandate is affirmed.   Respondent is entitled to costs on appeal.

We wrongly decided the first appeal and now the majority wrongly decide this second appeal.   As the majority indicate, our first opinion—understandably—utterly failed to persuade either superior court judge involved in this case.   It failed to do so because it, like the majority's instant opinion, is simply wrong.   I explain.

FACTUAL AND PROCEDURAL BACKGROUND

I need not repeat the 15–page factual and procedural description we provided in our first opinion (Morris Glenn v. City of Inglewood, B071548, Dec. 20, 1993) but a synopsis, more accurate than the majority's, is required.

Mr. Glenn began work as a fireman for the City of Inglewood (City) in 1973.   His work ended on January 28, 1985, when the rear end of the fire truck he was driving jack-knifed, injuring his elbow and back.   Following this accident Mr. Glenn developed a rash on his neck, back, and face, had headaches, stomach discomfort, and later had an ulcer.

For these ailments Mr. Glenn saw various private doctors.   He was also examined by various City doctors.

On June 23, 1986, the City offered Mr. Glenn a modified duty assignment as Assistant to the Training Officer and Fire Marshall.   The duties were “limited to light office work ․ maintaining records ․ running of errands, and light maintenance duties for the Training Officer.”   Mr. Glenn was ordered to report to duty July 7, 1986.   He did not do so.

On August 14, 1986, the City renewed its offer, ordered Mr. Glenn to report for work on August 20, 1986, and said “failure to appear will be grounds for dismissal.”   Mr. Glenn did not report for work.

Instead Mr. Glenn applied for a disability retirement.   The City preliminarily denied the application and Mr. Glenn sought a formal hearing.   That hearing was held February 3, 1988, and consisted primarily 1 of marking and receiving reports from 10 doctors and the Western Imaging Center.

The hearing officer found that Mr. Glenn could not perform the duties of a firefighter but could perform the duties of Assistant to the Training Officer and Fire Marshall and therefore denied his application for disability retirement.

The City adopted the findings and decision of the hearing officer.

Mr. Glenn petitioned the superior court for a writ of mandate.   Superior Court Judge Stephen E. O'Neil denied the petition and Mr. Glenn appealed.   We reversed the judgment and remanded the matter to the superior court directing it to consider only the reports of Mr. Glenn's four private doctors, not the reports of the other six doctors, and determine whether those reports supported the finding that Mr. Glenn could perform the duties of Assistant to the Training Officer and Fire Marshall.

On remand, Superior Court Judge Diane Wayne, as we directed, considered only the reports of Mr. Glenn's private doctors and accordingly granted the petition and commanded the City to find that Mr. Glenn “is permanently incapacitated from performing any duties for the City.”

This appeal, by the City, followed.

DISCUSSION

Our former opinion relied upon Franklin v. Workmen's Comp. Appeals Bd. (1971) 18 Cal.App.3d 682, 96 Cal.Rptr. 201.   Upon reconsideration,2 I find Franklin inapposite but even if apposite, not violated by Superior Court Judge Stephen E. O'Neil.   I explain.

1. Franklin v. Workmen's Comp. Appeal Bd.

While at work, John Franklin injured his back.   He was furnished temporary disability payment for the maximum period but was unable to return to work.   Over the ensuing 12 years he “had extensive medical treatment including five spinal surgeries. ”  (Franklin v. Workmen's Comp. Appeals Bd., supra, 18 Cal.App.3d 682, 684, 96 Cal.Rptr. 201.   Italics added.)   His disability claim was heard by a referee who issued an award for 100 percent permanent disability.   Thereafter, the appeals board granted a reconsideration of that award and ordered Mr. Franklin to be examined by an independent doctor.   Following the examination, Doctor Sperling (the independent doctor) wrote a report.   Based upon that report the appeals board “directed the rating bureau to rate for back disability limiting [Mr. Franklin] to ‘semi-sedentary’ work and use of a back brace.”  (Ibid.)  However, before the rating bureau did so, Dr. Sperling and a rating specialist were “cross-examined” (presumably by counsel for Mr. Franklin) causing the appeals board to amend its instructions to the rating bureau.   The amended instructions requested a rating “for back disability limiting [Mr. Franklin] to ‘sedentary work’ [instead of ‘semi-sedentary’] and use of a back brace.”  (Ibid.)

Based solely upon these amended instructions (and without access to Dr. Sperling's report ) the rating bureau “produced a rating of 70 percent disability which adjusted for ․ age and occupation, resulted in an award of 60 percent.”  (Ibid.)  Mr. Franklin appealed.

In annulling the 60 percent disability award, Franklin stated:  “It is well settled that the board, if it relies at all on the report and testimony of a medical examiner must give full weight to all of the findings of that doctor, and may not omit a factor of disability described by him.”  (Ibid.)

The appeals board had erred, Franklin held, because while solely relying upon Dr. Sperling's report and testimony it had disregarded findings and disability factors integral to his report and testimony.   Doctor Sperling had reported that Mr. Franklin, due to pain, “could not work for more than an hour at a time or function at all after 3 p.m., and ․ was dependent on Percodan for relief from pain.”  (Ibid.)  The appeals board—without relying upon any contrary or impeaching evidence—simply omitted this medical finding and instead provided to the rating bureau 3 “an inadequate and incomplete description [of Mr. Franklin's disability]․”  (Id. at p. 685, 96 Cal.Rptr. 201.)

Thus, Franklin stands for a simple and sound principle.   When a fact finder relies solely on the integrated testimony of one doctor it cannot distort that testimony by considering part and ignoring the rest.   A doctor's diagnosis of cancer based upon symptoms A, B, C, D, E, & F cannot, Franklin teaches, be converted into a flu diagnosis based upon symptoms A, C, & E.

However, when there is evidence from 10 doctors on multiple subjects Franklin is inapposite.  Franklin does not state that, in such circumstances, if a fact finder relies on one opinion of one doctor on one subject the fact finder must accept all the opinions of that doctor on all subjects and reject the opinions of all other doctors.4

2. Franklin:  inapposite and not violated.

Our earlier opinion (Morris Glenn v. City of Inglewood, B071548, Dec. 20, 1993) erred in finding Franklin apposite and finding Franklin had been violated by the superior court.

Our first mistake was in mischaracterizing what the hearing officer stated.   Our earlier opinion read:  “The hearing officer expressly stated that he gave more weight to the opinions of Glenn's treating doctors [than the City's examining doctors].”  (Id. at p. 14.   Italics added.)

Not quite.   In finding # 6, a section solely addressed to Mr. Glenn's ability to perform the full range of firefighter duties, the hearing officer notes the conflict between the City's doctors and Mr. Glenn's doctors and then states:  “The opinion of the treating doctor is generally entitled a greater weight than the opinion of a doctor retained to perform a single examination․”

By this acknowledgment of a general proposition the hearing officer did not “expressly state” he entirely accepted all the opinions of any doctor nor that he entirely rejected all the opinions of any doctor.   In fact, the hearing officer did not “expressly state” he entirely accepted even one opinion of even one doctor.   The hearing officer stated:  “The array of treating physicians ․ all indicated that he is unable, for one reason or another, to assume the full range of firefighter duties.”  (Italics added.)   That the hearing officer did not entirely adopt the opinion of any one doctor—dermatologist, internist, orthopedic surgeon, or psychiatrist—is clear.   He stated, “While it is unlikely that any one ailment would cause sufficient problems to prohibit him from performing the full range of Firefighter duties, in the opinion of the Hearing Officer the combination of those ailments and injuries would prevent him from performing satisfactorily and safely as a Firefighter.”  (Italics added.)

Our second error was to “presume that the hearing officer ․ relied upon the reports of Glenn's treating doctors to support the finding that he was capable of performing the light duty job” (id. at p. 19) and that, under Franklin, the hearing officer had to do so.

The determination of whether Mr. Glenn was able to perform the duties of a firefighter was quite different from the determination of his ability to perform “light office work.”

A doctor's opinion on one subject might be given much weight while a doctor's opinion on the other subject might properly be given little weight.

An opinion on Mr. Glenn's ability to perform the duties of a firefighter could be based upon Mr. Glenn's past experiences and his reaction to those experiences.   Being awakened in 3 a.m. darkness by clanging bells, speeding to burning, smoke-filled buildings, and seeing incinerated bodies were stressful experiences that caused Mr. Glenn to be anxious, fearful, have stomach ailments, periodic headaches, and rashes.   A doctor's opinion that, if Mr. Glenn were to be forced to have those same experiences, he would have those same ailments, and worse, might be given much weight.

But Mr. Glenn had no past experiences performing “light office work” where the hours were regular and the danger non-existent.   A doctor's opinion that because Mr. Glenn could no longer tolerate the stress of a firefighter he could not perform “light office work” might properly be given little weight.

There is nothing in the record to suggest the hearing officer considered only part of the evidence, rather than all the evidence, when he found “The modified duty assignments were within his [Mr. Glenn's] medical limitations.”

Our third and related error was concluding that Superior Court Judge Stephen E. O'Neil erred in relying on all the doctors' reports,5 rather than on only those of Mr. Glenn's four treating doctors.

Finally, I would observe, there is no magic incantation, no sacred rule of law binding a fact finder to all the opinions of one side's expert witness.   As Judge O'Neil noted, and counsel agreed, “Both sides hire hired guns.”

Mr. Glenn's doctors, no less than the City's, were not immune from bias.   Mr. Glenn retained a lawyer and, for the most part, then retained his doctors.   Their “reports” consist of letters to Mr. Glenn's lawyer.   They were not merely “treating” doctors, they were also prospective expert witnesses.   Dr. Bloch, the psychiatrist upon whom Mr. Glenn most relied, was more the latter than the former.   It was Dr. Bloch's associate, Mary Heiman, a Ph.D. candidate, who Mr. Glenn mostly had contact with, not Dr. Bloch.   And it was another associate, not Dr. Bloch, who administered and interpreted the psychological tests Mr. Glenn took.   When Mr. Glenn apparently wanted to postpone the February 3, 1988, hearing, Dr. Bloch wrote a letter stating Mr. Glenn was “emotionally incapable of participating in a hearing ․ at this time.”   Despite Dr. Bloch's letter the hearing was held and Mr. Glenn fully participated.

3. Conclusion.

The original superior court judgment denying Mr. Glenn's petition for a writ of mandate was correct.   The second, granting the petition is incorrect.

I would reverse the judgment, remand the matter to the superior court with directions that it enter a new order and judgment denying the petition for a writ of mandate.

FOOTNOTES

1.   The facts and proceedings below, up to the time of remand, are taken almost verbatim from our prior unpublished opinion in Glenn v. City of Inglewood, supra, typed opinion at pages 2 through 16.

2.   From our record [on the prior appeal], it is unclear what actions City took with respect to Glenn's temporary disability benefits.   Our record does contain a December 14, 1987 decision and order of the Rehabilitation Bureau of the State Division of Industrial Accident which decided that Glenn is precluded or likely precluded from returning to his usual and customary occupation and is entitled to rehabilitation services and temporary disability benefits.

3.   At the administrative hearing, City acknowledged that the issue before the hearing officer was “the incapacity of Mr. Glenn when the light-duty offer was made.   These are issues that are to be resolved by the hearing officer on the basis of medical reports submitted to him.   Obviously, there was a question of whether or not there was stress and whether or not that stress was industrial.   That will be resolved before the workers' compensation appeals board.   We are now discussing the disability of Mr. Glenn and whether or not Mr. Glenn can go back to full duty or light duty, and ․ several doctors on both sides reported on that issue in this case.”In light of the issue presented at the hearing on Glenn's application for disability retirement, we omit from our summary of the facts those medical reports discussing Glenn's medical condition after August 20, 1986, the date on which he was ordered to report for the light duty position, the failure to so report resulting in his termination.As acknowledged by respondent in its brief, “The sole issue at the hearing before the City and in the administrative mandamus proceeding was whether [Glenn] was able to perform a modified duty position which had been offered to him in the Inglewood Fire Department in 1986.”

4.   The dissent takes a novel approach which is not suggested by any party:  To ignore the judgment now before us for review and to reconsider our prior opinion which was a unanimous decision.   After concluding that our prior opinion was wrongly reasoned, the dissent then concludes that the judgment now before us for review should be reversed.   The dissent purports to resurrect the prior judgment which we reversed on the prior appeal, even though our prior opinion was not challenged by petition for review to the California Supreme Court, and the reversal of that judgment is now final.   Indeed, the trial court, following the directions in our former opinion, has entered a new judgment granting the petition for peremptory writ of mandate, and that judgment is the only judgment in existence and before us for review.We believe the dissent misapplies the law of the case doctrine.  “The law of the case doctrine states that when, in deciding an appeal, an appellate court ‘states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal ․, and this although in its subsequent consideration this court may be clearly of the opinion that the former decision is erroneous in that particular.’ ”  (Kowis v. Howard (1992) 3 Cal.4th 888, 892–893, 12 Cal.Rptr.2d 728, 838 P.2d 250.)   The trial court on remand correctly interpreted and applied the law of the case doctrine, and the dissent fails to establish any error by the trial court in this regard.Moreover, it is a logical non sequitur to conclude that the second judgment now before us for review should be reversed on the sole ground that the prior opinion was purportedly wrongly reasoned.   In other words, there may be other reasons not discussed in the prior opinion which would support a reversal of the prior judgment.   In addition, even if the prior opinion was wrongly reasoned, the second judgment is not challenged as being unsupported by the evidence, and appellant City has not established any error affecting that judgment.   Thus, even if our prior opinion was wrongly reasoned, no authority has been cited which supports the proposition that such alleged previous error provides a basis for reversing the judgment now before us for review.

1.   There were only three witnesses:  Morris Glenn, Fire Chief Robert Hartzog, and Randy Abrams, the City Safety & Health Manager.

2.   Law of the case doctrine does not preclude our reconsideration.   It is a procedural not jurisdictional doctrine (England v. Hospital of Good Samaritan (1939) 14 Cal.2d 791, 795, 97 P.2d 813), concerns only issues of law not fact (People v. Shuey (1975) 13 Cal.3d 835, 842, 120 Cal.Rptr. 83, 533 P.2d 211), and does not apply when there has been “a manifest misapplication of existing principles.”   (People v. Shuey, supra, 13 Cal.3d 835, 846, 120 Cal.Rptr. 83, 533 P.2d 211;  Jeffries v. Wood (9th Cir.1996) 75 F.3d 491.)

3.   Franklin is contradictory.   It states the appeals board, by amended instructions, asked for a rating involving “sedentary work” and use of a back brace (id. at p. 684, 96 Cal.Rptr. 201) but later states the appeals board asked for a rating involving “semi-sedentary work․”  (Id. at p. 685, 96 Cal.Rptr. 201.)

4.   Juries are regularly instructed they are not bound by an expert's opinion and should give “each opinion the weight ․ it deserves.”  (BAJI No. 2.40 (1995 Revision).)

5.   Judge O'Neil made clear that the supporting evidence he relied on included the reports of the five City doctors “among others.”

LILLIE, Presiding Justice.

JOHNSON, J., concurs.