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Court of Appeal, Fourth District, Division 1, California.

Coreen STRUMSKY, widow of Richard D. Strumsky, Petitioner and Appellant, v. SAN DIEGO COUNTY EMPLOYEES RETIREMENT ASSOCIATION, Respondent.

Civ. 10628.

Decided: February 17, 1972

Linley, McDougal, Meloche & Murphy, and Donald L. Meloche, El Cajon, for petitioner and appellant. Robert G. Berrey, County Counsel and Joseph Kase, Jr., Deputy County Counsel, for respondent.

Coreen Strumsky appeals from a judgment of the superior court denying her petition for a writ of mandate brought under Code of Civil Procedure section 1094.5 to review the administrative decision of a county employees retirement board holding her husband's death did not arise out of and in the course of his employment. Under the County Employees Retirement Law of 1937, the surviving spouse of a member of a County Employees Retirement Association who dies of a service-connected disease or injury is entitled to elect a monthly allowance equal to 50% of the member's final salary pursuant to Government Code section 31787, in lieu of the normal death benefit authorized by section 31781.1. If a service-connected death benefit is properly due Mrs. Strumsky, it would more than double the normal death benefit of $181.03 per month she would otherwise receive.

The basic issue raised by the appeal is whether the trial court correctly concluded it was required to test the decision of the retirement board by the substantial evidence rule or whether it was entitled to exercise its independent judgment on the evidence. The issue takes on added significance because of the Supreme Court's recent decision in Bixby v. Pierno, 4 Cal.3d 130, 93 Cal.Rptr. 234, 381 P.2d 242, and because of the trial court's Finding No. 7 which reads:

‘7. That the Court, if this were a case in which the Court was authorized by law to exercise its independent judgment on the evidence, would find that the death of the decedent safety member Richard D. Strumsky was service-connected in nature.’


Appellant Coreen Strumsky is the widow of Richard D. Strumsky, who died on December 25, 1968, after surgery to correct a congenital coarctation of the aorta. At the time of his death Mr. Strumsky was a sergeant in the San Diego County Marshal's office and was in charge of its El Cajon branch. He had been employed by San Diego County for almost 21 years, and for many years had been a safety member of respondent San Diego County Employees' Retirement Association.

On January 3, 1969, appellant, as the surviving spouse of Richard Strumsky, applied for the service-connected death benefit, relying in part on the presumption in Government Code section 31720.5 which states:

‘It a safety member, . . . who has completed five years or more of service . . . under this retirement sustem . . ., and develops heart trouble, it shall be presumed in any proceeding under this chapter, by the board and the court in the absence of evidence to the contrary, that such heart trouble is an injury or disease occurring in and arising out of his employment. . . .’ (Emphasis added)

The Board of Retirement of the San Diego County Employees Retirement System (the Board) held a hearing on the application on August 13, 1969. Five witnesses testified at the hearing and documentary evidence was introduced which included a copy of Sergeant Strumsky's death certificate and the written reports of four doctors.

The medical evidence was conflicting, but not in all aspects. Sergeant Strumsky had suffered from hypertension since the age of 13 due to a congenital narrowing of the aorta. In the last six years of his life his high blood pressure increased and became very difficult to control. Approximately one year before his death, it was discovered during an appendectomy that he had advanced arteriosclerosis. Dr. Ketcham who attended him from 1962 until his death stated in his report:

‘Since the high blood pressure was unrelenting and the arteriosclerosis was progressing, it was advisable to recommend a surgical correction of coarctation. To not do the surgery would have surely doomed him to an early death or permanent disability from a stroke, heart attack, or kidney failure. Unfortunately the surgery was not successful. . . .’

The death certificate gave as the immediate cause of death: ‘Hemorrhage into left pleural space 3 wks. after thoracic artery bypass graft due to thoracic coarctation of the aorta’ and gave ‘Hypertension’ and ‘Generalized arteriosclerosis' as other significant conditions.

Appellant introduced evidence to prove Strumsky's hypertension was aggravated by the nature of his job. For several years prior to his death he had been in charge of the El Cajon branch of the marshal's office. That Sergeant Strumsky was hardworking, conscientious and under the pressure of a continuing increase in the volume of work, was shown by testimony of County Marshal Howell, Judge Smith and fellow officers. While the reports of all the doctors agreed coarctation of the aorta was the primary cause of Sergeant Strumsky's hypertension, there was disagreement as to the degree stress and tension from his occupation were contributing factors.

Dr. T. A. Morrison, the civil service examiner, advised the Board the disability which necessitated the surgery was not service-connected, stating as reasons:

‘1. The coarctation of the aorta was the primary cause of his hypertension. Arteriosclerosis is a contributing factor.

‘2. Stresses and responsibilities of a strenuous job might also be cited as contributing factors, but to an infinitesimal extent compared to that caused by the coarctation of the aorta and arteriosclerosis.’

Dr. Ketcham, after relating the difficulties he had incurred in controlling Sergeant Strumsky's blood pressure during the last six years of his life, stated:

‘There is no doubt that the nature of his occupation and the responsibilities therein were a contributing factor in the erratic behavior and the difficulty to control his pressure. His blood pressure certainly had no other causes involved except for a coarctation of the aorta which was almost certainly congenital.’

Dr. Edgar, a specialist in internal medicine, who had been consulted and had observed Sergeant Strumsky's blood pressure problems at the time of his appendectomy, believed the generalized arteriosclerosis or atherosclerosis found then, and later at autopsy, both above and below the coarctation, developed independently of coarctation itself and may have contributed significantly to the ultimate death. He concluded his report:

‘I agree with the opinions expressed by Dr. T. A. Morrison, Civil Service Examiner, that (1) ‘the coarctation of the aorta was the primary cause of his hypertension. Arteriosclerosis is a contributing factor’, and with his further statement that ‘stresses and responsibilities of a strenuous job might also be cited as contributing factors'. His subsequent statement that the latter would account for only ‘infinitesimal extent compared to that caused by the coarctation of the aorta and arteriosclerosis' I find difficult to accept, since the arteriosclerosis itself may definitely have been related to chronic tension. Thus, in my opinion, it is reasonable to assume that this exerted a far greater effect that is mentioned by Dr. Morrision.’

After reviewing information furnished concerning Sergeant Strumsky's employment, the report of autopsy, and the written reports of the three other doctors, Dr. Frank, also a specialist in internal medicine, concluded:

‘In summary then Mr. Strumsky suffered from high blood pressure that was due primarily to coarctation of the aorta. His high blood pressure had, however, been aggravated by the emotional stress that he experienced in the course of his employment as a Marshal for the County of San Diego. His high blood pressure in turn was in part responsible for widespread atherosclerosis including atherosclerosis of the aorta. Surgery was done to correct his coarctation and to alleviate his high blood pressure. The site of the aorta at which the proximal suturing to the bypass graft was performed had in all likelihood been weakened by the atherosclerosis. The suture line ultimately gave way and allowed an exsanguinating hemorrhage to occur, with death ensuing.’

At the conclusion of the hearing the Retirement Board voted, four to three, to deny appellant's application for a serviceconnected death benefit.


It is important to note at the outset the scope of appellate review of the superior court's findings and judgment is the same whether that court in its review of the administrative decision was bound by the substantial evidence rule or whether it was entitled to exercise its independent judgment on the evidence. Irrespective of which of the two tests the trial court was required to apply to the decision of the Board, our function is to determine whether the trial court's findings and judgment are supported by substantial evidence. (See Boreta Enterprises, Inc. v. Department of Alcoholic Beverage Control, 2 Cal.3d 85, 94–95, 84 Cal.Rptr. 113, 465 P.2d 1; Yakov v. Board of Medical Examiners, 68 Cal.2d 67, 69, 71–73, 64 Cal.Rptr. 785, 435 P.2d 553; Bixby v. Pierno, supra, 4 Cal.3d 130, 143, fn. 10, 93 Cal.Rptr. 234, 481 P.2d 242.)

Resolution of the question of whether death is service-connected, or arises out of and in the course of employment, is not confined to a consideration of the primary cause of death alone. In both workmen's compensation and pension cases, competent evidence that the requirements of employment have accelerated or aggravated a pre-existng injury or disease, and thus contributed to and acclerated death, has long been recognized as sufficient to support a finding the death was service-connected. (Buckley v. Roche, 214 Cal. 241, 245–247, 4 P.2d 929; Knock v. Industrial Acc. Com., 200 Cal. 456, 461, 253 P. 712; Naughton v. Retirement Board of S. F., 43 Cal.App.2d 254, 260–261, 110 P.2d 714; Montgomery Ward & Co., Inc. v. Industrial Accident Commission, 30 Calif.Comp. Cases 90, 92 (1965).)

The Board's finding Sergeant Strumsky's death was not service-connected is supported by Dr. Morrison's opinion the disability which made the surgery resulting in his death necessary was not service-connected and by his conclusion that the stresses and responsibilities of his employment were contributing factors, ‘but to an infinitesimal extent compared to that caused by the coarctation of the aorta and arteriosclerosis.’ While this opinion conflicts with the views expressed by Drs. Ketcham, Edgar and Frank, who placed greater significance on the stresses and strains of employment as a causative factor of the erratic high blood pressure, the Board's finding the death was not serviceconnected remains supported by substantial evidence in the light of the whole record, A contrary result must obtain, however, if the trial court was entitled to exercise its independent judgment on the evidence. By Finding No. 7, the trial court made it unmistakably clear it would have found the death to have been service-connected had it been authorized by law to employ that test to the evidence before it. Had such a finding been made, it too would have been supported by substantial evidence. Whether the ultimate power to resolve the determinative conflicting medical testimony lies with the Board or with the trial court, depends on whether the latter was required to review the Board's findings under the substantial evidence rule or whether it was entitled to exercise its independent judgment on the evidence.

Before Bixby v. Pierno, supras, 4 Cal.3d 130, 93 Cal.Rptr. 234, 481 P.2d 242, California decisional law made it clear judicial review of a decision of a local administrative board, pursuant to Code of Civil Procedure section 1094.5(c), was limited to a consideration of the record of the evidence before the board and a determination of whether the board's findings were supported by substantial evidence in the light of the whole record. In such proceedings, the superior court was precluded from weighing the evidence or exercising its independent judgment upon it. (Corcoran v. S. F. etc. Retirement System, 114 Cal.App.2d 738, 740, 251 P.2d 59; Thompson v. City of Long Beach, 41 Cal.2d 235, 239–240, 259 P.2d 649; Keithley v. Civil Service Board, 11 Cal.App.3d 443, 448, 89 Cal.Rptr. 809; 5 Witkin, Cal.Proc.2d, Extraordinary Writs, § 220.) In Bixby the Supreme Court held the trial court properly applied the substantial evidence rule in reviewing the decision of the Commissioner of Corporations approving a recapitalization plan because the decision did not involve vested and fundamental rights. While Bixby was concerned with the review of a decision of a statewide agency, it signaled a change in approach in the determination of the scope of judicial review of administrative decisions. Emphasis was placed upon the nature of the right involved, not on the jurisdiction of agency which had made the administrative decision. The court said section 1094.5 of the Code of Civil Procedure ‘. . . empowers this court to establish standards for determining which cases require . . . independent judgment review and which call for only a substantial evidence review of the entire record.’ (4 Cal.3d p. 140, 93 Cal.Rptr. p. 241, 481 P.2d p. 249) Determination of the scope of judicial review depends upon the nature of the right involved. If the decision of the administrative board substantially affects vested and fundamental rights, the trial court must not only examine the administrative records for errors of law, but must exercise its independent judgment on the evidence disclosed in a limited trial de novo.1 If the administrative decision does not involve such a right, the trial court must apply the substantial evidence rule to the whole record of the administrative proceeding. (p. 144, 93 Cal.Rptr. 234, 481 P.2d 242) Courts must decide on a case-by-case basis whether the right involved is fundamental and basic, and if it is, whether it is vested in the person asserting it, or merely sought by him. (p. 144, 93 Cal.Rptr. 234, 481 P.2d 242)

While Bixby involved the review of a decision of an agency with statewide jurisdiction, and noted that the court was not called upon to discuss the appropriate scope of judicial review of local agency decisions affecting vested fundamental rights (p. 137, fn. 2, 93 Cal.Rptr. 234, 481 P.2d 242), we are convinced the decision implies that a uniform rule of judicial review applies to the administrative decisions of both local and statewide agencies. If statwide agency administrative decisions affecting a vested fundamental right entitle the individual whose right is at stake to an independent judgment review of the administrative decision, logic dictates that a person whose vested fundamental rights are affected by the decision of a local administrative board is entitled to the same degree of judicial protection. Moreover, both the majority and the principal concurring opinion in Bixby recognize that the rule applying a different scope of judicial review to decisions of statewide and local administrative boards has led to confusion and has been severely criticized by legal scholars and commentators. (majority opinion, p. 137, fn. 2, 93 Cal.Rptr. 234, 481 P.2d 242; concurring opinion, p. 152, 93 Cal.Rptr. 234, 481 P.2d 242.)

We view Bixby as indicating the previous Colifornia cases limiting judicial review of local administrative decisions to the substantial evidence rule are not controlling and that determination of whether such decisions should be judicially reviewed under the independent judgment test depends on whether the administrative decision substantially affected a vested fundamental right.2

Notwithstanding respondent's contrary urging, we are convinced the pension right affected by the Board's decision was both vested and fundamental. Statutory pension provisions ‘. . . are an integral portion of the contemplated compensation set forth in the contract of employment . . ., and are an indispensable part of that contract, and . . . the right to a pension becomes a vested one upon acceptance of employment by an applicant.’ (Dryden v. Board of Pension Commrs., 6 Cal.2d 575, 579, 59 P.2d 104, 106; Brooks v. Pension Board, 30 Cal.App.2d 118, 123, 85 P.2d 956.) The right in no less vested because the facts upon which payment is predicated are contested or controverted. By his contract of employment, and by 20 years of employment with the County of San Diego, Sergeant Strumsky (and appellant as his spouse) acquired a vested right in the service-connected disability benefits provided by the County Employees Retirement Law. The decision of the Board under consideration substantially affected that vested right.

The Supreme Court in Bixby stated, 4 Cal.3d at page 144, 93 Cal.Rptr. at page 244, 481 P.2d at page 252: ‘In determining whether the right is fundamental the courts do not alone weigh the economic aspect of it, but the effect of it in human terms and the importance of it to the individual in the life situation.’ While the guidelines are vague, we think the right here involved meets that standard. After many years of public service, the employee's or his widow's right to a pension cannot be measured in dollars and cents alone. In human terms and in importance to the individual in the life situation, the right is no less fundamental and basic than ‘the opportunity to continue the practice of one's trade or profession.’ (Bixby, supra, pp. 144–145, 93 Cal.Rptr. p. 244, 481 P.2d p. 252) We think the right is sufficiently fundamental to afford it whatever added protection may come from an independent judgment review of the administrative hearing.

We conclude the trial court was entitled to exercise its independent judgment on the evidence before it. The previous trial was based solely on the evidence before the Board. Nothing indicates additional evidence would be admissible if the matter were retried. Accordingly, the trial court is directed to make new findings of fact and conclusions of law consistent with its Finding No. 7 and the views expressed in this opinion, and to make and enter a new judgment granting the writ.

The judgment is reversed.


1.  In defining this function the court stated: ‘The trial court must exercise its independent judgment upon the weight of the evidence produced of reasonable diligence, have been produced before the administrative agency and any evidence which might have been improperly excluded by the administrative agency.’ (Bixby, supra, p. 143, fn. 10, 93 Cal.Rptr. p. 243, 481 P.2d p. 251.)

2.  In Bixby the court stated: ‘Many local agency adjudicative decisions do not substantially affect vested fundamental rights and would thus properly be subject to a substantial evidence review. (Citation) Other agency decisions are quasi-legislative in nature and are subject to a very limited judicial review to determine whether the agency's action has been arbitrary, capricious, entirely lacking in evidentiary support, or otherwise unlawful. (Citation)’ (4 Cal.3d p. 137, fn. 2, 93 Cal.Rptr. p. 238, 481 P.2d p. 246) Obviously, the decision involved in this case is not of a quasi-legislative nature. In the same footnote the court noted the California constitutional provision upon which the court had originally relied in Standard Oil Co. v. State Board of Equalization, 6 Cal.2d 557, 562–563, 59 P.2d 119, in establishing the substantial evidence review for local administrative agencies was repealed in 1950.

AULT, Associate Justice.

BROWN, P. J., and WHELAN, J., concur.