OBERHAUS v. BOARD OF PENSION COMMISSIONERS OF CITY OF LOS ANGELES

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Court of Appeal, Second District, Division 2, California.

Thomas J. OBERHAUS, Petitioner and Respondent, v. BOARD OF PENSION COMMISSIONERS OF the CITY OF LOS ANGELES, Respondent and Appellant.

Civ. 63123.

Decided: February 09, 1982

Ira Reiner, City Atty., Siegfried O. Hillmer, Asst. City Atty., for respondent and appellant. Lemaire, Faunce & Katznelson, Edward L. Faunce, Mary Ann Healy, Los Angeles, for petitioner and respondent.

Respondent Thomas J. Oberhaus (Oberhaus), until September 30, 1979, had served for fourteen years as an officer of the Police Department of the City of Los Angeles.   On that date he resigned from his employment because he found it impossible to continue his duties due to the stresses associated with the job.   He thereafter sought and obtained a workers' compensation award for psychiatric injury causing permanent disability of 163/434%, based upon a stipulation by the Los Angeles City Attorney that the injury arose out of and was sustained in the course of his employment.   Following that award, and in October of 1980, appellant Board of Pension Commissioners of the City of Los Angeles (the Board) held a hearing which resulted in a decision to grant Oberhaus a nonservice-connected disability pension.   Maintaining the pension should have been that pertaining to a service-connected disability, Oberhaus sought and obtained in the trial court a peremptory writ of mandate supporting his contention.   This appeal followed.   We reverse.

Among others, the contention here is that, contrary to the conclusion below which was the basis for issuance of the writ, the decision of the Workers' Compensation Appeals Board (WCAB) to award Oberhaus disability compensation pursuant to the Labor Code was not res judicata (or did not constitute collateral estoppel) as to the Board, such that the Board was free to make its own determination respecting the service-connected or nonservice-connected character of Oberhaus' pension.   We agree.

In French v. Rishell (1953) 40 Cal.2d 477, 254 P.2d 26, where a like question was present, our Supreme Court reiterated that:

“The doctrine of res judicata is applicable where the identical issue was decided in a prior case by a final judgment on the merits and the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication.”

(Id., at p. 479, 254 P.2d 26.)

The same observation was made in Greatorex v. Board of Administration (1979) 91 Cal.App.3d 54, 57, 154 Cal.Rptr. 37.

In French, however, it was specifically noted that no question as to the identity of the issue involved, as between the conflicting determinations of the (then so designated) Industrial Accident Commission and the employer pension board, was raised.   So far as appears from the opinion, the same was true in Greatorex.

In Jackson v. City of Sacramento (1981) 117 Cal.App.3d 596, 172 Cal.Rptr. 826, on the other hand, it was concluded that:

“ * * * plaintiff has failed to meet his burden of proof in establishing an identity of issue.   The city retirement plan grants industrial benefits to one who becomes incapacitated and unable to perform his duty by reason of any bodily injury or physical illness ‘caused or incurred in performance of his duty ․’  (City charter, § 413.)   Workers' Compensation provides benefits for injuries ‘arising out of and in the course of the employment ․’ (Lab.Code, § 3600.)   Thus, the standards set by each board are markedly different.   In order to qualify for industrial disability under the city retirement plan, the requirements are more stringent than those of the workers' compensation plan.   Moreover, plaintiff has presented no evidence to establish that defendants' retirement standards or interpretation of those standards is identical.   Plaintiff merely states that the issue involved in both proceedings was whether his injuries were ‘work related.’   We disagree.”

(Id., at p. 602, 172 Cal.Rptr. 826.)

A similar disparity is present here, where section 190.12 of the Charter of the City of Los Angeles provides that:

“(a) Service-Connected Disability ․ [a]ny System member whom the Board shall determine has become physically or mentally incapacitated by reason of injuries received or sickness caused by the discharge of the duties of such person as a Department Member, and who is incapable as the result thereof from performing his duties, shall be retired․”

In like fashion, the suggestion Oberhaus' disability for purposes of the law relating to workers' compensation is the same as his incapacity for purposes of determining his right to pension benefits is at least subject to question.   So, it was remarked in De Celle v. City of Alameda (1960) 186 Cal.App.2d 574, 9 Cal.Rptr. 549, that:

“Appellant advances the further argument that a distinction must be drawn between the meaning of the words ‘physically disabled’ in the ordinance and the words ‘permanent disability’ as used in the workmen's compensation statutes and by the commission in its decision.   It is our view that this argument has merit.   As the cases indicate above, the latter phrase encompasses any injury or disfigurement which causes impairment of earning capacity, impairment of the normal use of a member, or a competitive handicap in the open labor market, irrespective of whether or not the employee returns to or continues his former occupation.  (2 Hanna, The Law of Employee Injuries and Workmen's Compensation, 255 [1954]).  * * *.

“ ‘Permanent disability’ as that term is used with reference to the workmen's compensation laws, ‘covers every type of impairment, including some as to which the disability feature is almost purely theoretical ․’  (2 Hanna, The Law of Employee Injuries and Workmen's Compensation, 259).   Thus the loss of even one phalanx of a finger or toe constitutes a partial permanent disability, as does the loss of taste or smell, even though, from a practical standpoint, such may produce no real loss of ability to work or earn.   To construe the provisions of Ordinance No. 1079 that any nonincapacitating injury is within the purview of section 12 of said ordinance, thereby entitling its recipient to retirement on a disability pension thereunder, would reduce the meaning of the ordinance to an absurdity * * *.

“Hence, the [pension] board was required to interpret the words ‘physically disabled’ as they appear in the ordinance to mean incapacitated with regard to prior occupation, it was required to determine not only whether respondent had incurred the injury in the performance of duty, but also whether said injury had rendered him incapable of continuing his former employment.   As was previously indicated, the commission's decision only determined the first of these two issues.”

(Id., at pp. 581–582, 9 Cal.Rptr. 549;  see also Petry v. Board of Retirement (1969) 273 Cal.App.2d 124, 129, 77 Cal.Rptr. 891;  cf. Garrick v. Board of Pension Commissioners (1971) 17 Cal.App.3d 243, 94 Cal.Rptr. 598;  Grant v. Board of Retirement (1967) 253 Cal.App.2d 1020, 61 Cal.Rptr. 791.)

It thus appearing the issue adjudicated by the WCAB and that resolved by the Board were not identical, the ruling of the former on the question of work related injury and disability was not binding on the latter.

The judgment appealed from is reversed and the writ of mandate is discharged.

ROTH, Presiding Justice.

COMPTON and BEACH, JJ., concur.