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Court of Appeal, Second District, Division 5, California.


Civ. B005008.

Decided: March 14, 1985

Lemaire, Faunce & Katznelson and Edward L. Faunce and Steven R. Pingel, Los Angeles, for petitioner and appellant. DeWitt W. Clinton, County Counsel, Milton J. Litvin, Asst. County Counsel and Daniel E. McCoy, Principal Deputy County Counsel, Los Angeles, for respondent.

Appellant, Angelita Hoffman (Hoffman), appeals from a superior court judgment denying her petition for an administrative writ of mandamus.   The petition, filed pursuant to Code of Civil Procedure section 1094.5, sought an order directing respondent Board of Retirement of the County of Los Angeles Employees' Retirement Association (the Board) to award Hoffman a service-connected disability pension.   We conclude that the trial court employed an erroneous legal theory in ruling on the evidence and we therefore remand the matter for further hearing.

Appellant began working for the County of Los Angeles in July 1972.   She continued in that employment until July 23, 1976, when she became ill at work with what she believed to be a stroke and what is variously described by the medical evidence in the record as “a hysterical syncopal episode,” a “transient ischemic attack” and a “cerebrovascular accident.”   Medical records indicate that appellant suffers from hypertension, diabetes, depression and chronic anxiety.   The diabetes and hypertension antedated appellant's county employment.   In testimony before a Board referee, and in conversation with the various doctors who examined her, appellant attributed her anxiety to the stress of her county employment.

Several of the medical reports indicate that appellant's anxiety, and/or hypertension were significantly aggravated by her employment.   However, a report by Dr. Anne L. Peters concluded that appellant was not “disabled by any type of cerebral vascular disease.”   A report by Dr. Norman I. Barr diagnosed appellant as having a lifelong hysterical personality disorder, which was “neither aggravated nor exacerbated by the events occuring [sic ] on July 23, 1976.”   The report further concluded:  “This disorder was not caused, nor was it aggravated or exacerbated by her industrial experience between July 27, 1972 and July 23, 1976.   Had she never worked during these four years, she could have experienced the same symptoms which she did on July 23, 1976.   Her degree of disability is slight-to-moderate.   This disability is entirely non-industrial in origin.”   The Board awarded appellant a disability pension, but refused to award her a service connected disability pension.

The statute governing the right of a county employee to a service-connected disability pension is section 31720 of the Government Code.   Prior to its amendment in 1980, section 31720 provided:  “Any member permanently incapacitated for the performance of duty shall be retired for disability regardless of age if, and only if, (a) His incapacity is a result of injury or disease arising out of and in the course of his employment ․”

In 1980, section 31720 was amended to read, in pertinent part, as follows:  “Any member permanently incapacitated for the performance of duty shall be retired for disability regardless of age, if, and only if:  (a) The member's incapacity is a result of injury or disease arising out of and in the course of the member's employment and such employment contributes substantially to such incapacity․”  (Emphasis added.)

The 1980 legislation further provided:  “The amendments to this section enacted during the 1979–80 Regular Session of the Legislature shall be applicable to all applicants for disability retirement on or after the effective date of such amendments.”   Appellant applied for disability retirement prior to the effective date of the legislation.

The threshold question before us is whether the phrase “applicable to all applicants ․ on or after the effective date ․” refers to all those who became applicants on or after that date, or if it refers to all those who remained applicants at that time.  Lundak v. Board of Retirement (1983) 142 Cal.App.3d 1040, 1042–1043, fn. 1, 191 Cal.Rptr. 446, and Bowen v. Board of Retirement (1985) 165 Cal.App.3d 607, 213 Cal.Rptr. 292, opt for the latter interpretation.  Matlovsky v. Board of Retirement (1983) 149 Cal.App.3d 1069, 197 Cal.Rptr. 259, on the other hand, adopted the former interpretation.   We believe that Matlovsky reached the sounder conclusion.

 The oft-stated general rule is that “statutes are not to be given retroactive effect unless the intent of the Legislature cannot be otherwise satisfied.  [Citation.]  ‘The Legislature, of course, is well acquainted with this fundamental rule, and when it intends a statute to operate retroactively it uses clear language to accomplish that purpose.’  [Citation.]”  (Balen v. Peralta Junior College Dist. (1974) 11 Cal.3d 821, 828, 114 Cal.Rptr. 589, 523 P.2d 629;  Battle v. Kessler (1983) 149 Cal.App.3d 853, 858, 197 Cal.Rptr. 170.)   Rather than employing clear language in attempting to delineate the coverage of the 1980 amendments to Government Code section 31720, the Legislature has employed highly ambiguous language susceptible to the two conflicting interpretations we have noted.   Established rules of construction therefore require that we adopt the construction that gives the statute “the least retroactive effect that its language reasonably permits.”  (Corning Hospital Dist. v. Superior Court (1962) 57 Cal.2d 488, 494, 20 Cal.Rptr. 621, 370 P.2d 325.)   In this case, that construction is that the amendments apply only to those applicants who first sought service-connected disability benefits on or after the effective date of the legislation.

 This conclusion is further compelled by the rule that “[a]pplication of a statute to destroy interests which matured prior to its enactment is generally disfavored and, absent specific legislative provision for retroactivity, it would be manifestly unjust to interpret a new enactment in a manner that would strip the petitioner of his previously acquired status.  (Balen v. Peralta Junior College Dist., (1974) 11 Cal.3d 821, 830, [114 Cal.Rptr. 589, 523 P.2d 629].)”  (Healdsburg Police Officers Assn. v. City of Healdsburg (1976) 57 Cal.App.3d 444, 455, 129 Cal.Rptr. 216.)   A statutory change which enlarges or diminishes an employee's existing rights is substantive in nature.  (Aetna Cas. & Surety Co. v. Ind. Acc. Com. (1947) 30 Cal.2d 388, 392, 182 P.2d 159;  Industrial Indemnity Co. v. Workers' Comp. Appeals Bd. (1978) 85 Cal.App.3d 1028, 1031, 149 Cal.Rptr. 880.) 1

Case law prior to the amendment had established that the applicant's employment did not have to be the cause of his disability, but merely a cause of it;  it was sufficient if the employment merely aggravated a preexisting, non-service-connected condition.  (Matlovsky v. Board of Retirement, supra;  DePuy v. Board of Retirement (1978) 87 Cal.App.3d 392, 150 Cal.Rptr. 791;  Gelman v. Board of Retirement (1978) 85 Cal.App.3d 92, 149 Cal.Rptr. 225;  Heaton v. Marin County Employees Retirement Bd. (1976) 63 Cal.App.3d 421, 133 Cal.Rptr. 809.)   The degree to which the employment was required to be a causative factor of the disability was described in Gelman as follows:  “․ [T]he law, both statutory and decisional, is clear that all that is required is a material and traceable connection to appellant's mental deterioration that was caused by the stress of his county job.”  (85 Cal.App.3d at p. 97, 149 Cal.Rptr. 225, emphasis added.)  DePuy enunciated the standard as follows:  “We must conclude while the causal connection between the stress and the disability may be a small part of the causal factors, it must nevertheless be real and measurable.   There must be substantial evidence of some connection between the disability and the job.”  (87 Cal.App.3d at p. 399, 150 Cal.Rptr. 791, emphasis added.)   There was a requirement of substantial evidence, not of substantial causation.   The change wrought by the 1980 amendments to Government Code section 31720 was therefore clearly substantive.  (Matlovsky v. Board of Retirement, supra, 149 Cal.App.3d 1069, 197 Cal.Rptr. 259.) 2

At the superior court hearing on appellant's petition, the court correctly stated that the independent judgment standard was applicable to its review of the Board's decision.  (DePuy v. Board of Retirement, supra, 87 Cal.App.3d 392, 396–397, 150 Cal.Rptr. 791.)   The court then went on to state that it believed that the 1980 amendment to Government Code section 31720 merely made a clarification in the law, not a substantive change, that this “clarification” was because “we were getting off to the point where a cause meant, I guess in some people's mind [sic ], any traceable contribution.”   The court further stated that “a cause” could be interpreted to mean a minor cause and that was not precise enough.   When counsel for appellant pointed out to the court that Heaton, supra, and Gelman, supra, did apply a test of any traceable causality, and Heaton indicated that even a virtually insignificant cause would suffice, the court stated:  “Maybe that court would but I think my own judgment is—and that's what we are stuck with here, at this stage, at least—is that that is inconsistent with the obvious intent, clear intent of the legislation.  [¶ ] The reason for the legislation was that some courts were interpreting the concept of a cause in a very, very unrealistic way ․”  (Emphasis added.)

The court went on to state, with respect to the 1980 amendment, “I believe that that was a clarification or an enunciation of what the level of proof must be.   And therefore I think that anybody having a hearing on this subject after the passing of that legislation, I personally think, is required to go along with that test.   And that test is not met here.”

The Board would have us ignore the court's statements and just review its actions, which, the Board claims, are supported by substantial evidence.   We cannot do that in the face of unequivocal evidence that the court applied an erroneous standard of proof and refused to follow applicable case law.   (Matlovsky v. Board of Retirement, supra, 149 Cal.App.3d 1069, 197 Cal.Rptr. 259;  DePuy v. Board of Retirement, supra 87 Cal.App.3d 392, 150 Cal.Rptr. 791.)

 The trial court in the instant matter was obliged to apply the law as enunciated in Heaton, supra, Gelman, supra, and DePuy, supra.   Since it clearly did not follow those cases, the judgment must be reversed.3  Although the quoted findings of Drs. Peters and Barr would be sufficient to support a judgment in favor of the Board, under the appropriate standard of proof, it is unclear whether the trial court would have so found under that standard.   We therefore are remanding the matter for further proceedings to determine whether appellant's employment, while not a substantial cause of her disability, nonetheless contributed to it in a “material and traceable” or a “real and measurable” fashion.

The judgment is reversed.   The cause is remanded.


1.   It is well established that basic principles underlying the workers' compensation system are applicable to government disability retirement pensions.  (Gelman v. Board of Retirement, supra, 85 Cal.App.3d 92, 96, 149 Cal.Rptr. 225.)

2.   Lundak v. Board of Retirement, supra, 142 Cal.App.3d 1040, 191 Cal.Rptr. 446, does not discuss the question of whether the 1980 amendments work a substantive change in the law.  Bowen v. Board of Retirement, supra, 165 Cal.App.3d 607, 213 Cal.Rptr. 292 (1985), by inference finds that the amendments do make a substantive departure from prior law.   Bowen correctly points out that Lundak seems to continue to employ the standards of Gelman and DePuy, a result, we agree, the Legislature did not intend.

3.   DePuy v. Board of Retirement, supra, 87 Cal.App.3d 392, 150 Cal.Rptr. 791 disavowed, correctly we believe, the suggestion in Heaton v. Marin County Employees Retirement Bd., supra, 63 Cal.App.3d 421, 133 Cal.Rptr. 809, that an infinitesimal or inconsequential connection between an applicant's job and his disability was sufficient.   In Heaton, the defendant urged unsuccessfully that the statute required the employment to be the sole cause of the disability in order for the worker to qualify for a service-connected disability pension.   The defendant argued that if that standard were not adopted, then “even an infinitesimal contribution to the disability might require full compensation․”  (63 Cal.App.3d at pp. 430–431, 133 Cal.Rptr. 809.)   The court's response to this latter argument was that the defendant's remedy lay with the Legislature.   Heaton stands for the proposition that the employment need not be the sole cause of the disability.   Since the evidence was clear in Heaton that the plaintiff's employment contributed significantly to her disability, the defendant's reference to “infinitesimal” causation was speculative, and the court's response, to the extent that it can be inferred to confirm the defendant's speculation, was mere dictum.   We take Gelman, supra, and DePuy, supra, to have accurately stated the appropriate standard of causation.   Of course, to the extent that appellant's counsel overstated the holding of Heaton, the court was free to ignore his argument.

FEINERMAN, Presiding Justice.