GARBARINI v. BOARD OF RETIREMENT OF COUNTY OF LOS ANGELES EMPLOYEES RETIREMENT ASSOCIATION

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

Mary GARBARINI, Petitioner and Appellant, v. BOARD OF RETIREMENT OF the COUNTY OF LOS ANGELES EMPLOYEES' RETIREMENT ASSOCIATION, Respondent.

B008967.

Decided: December 17, 1985

Lemaire & Faunce and Mark Ellis Singer, Los Angeles, for petitioner and appellant. De Witt W. Clinton, Los Angeles County Counsel, Milton J. Litvin, Asst. Los Angeles County Counsel and Eduardo Lopez, Deputy Los Angeles County Counsel, Los Angeles, for respondent.

This is an appeal from a judgment denying the appellant's petition for a writ of mandate to overturn a decision of the respondent Board denying her a service connected disability retirement allowance.   Affirmed.

The appellant started in the employ of Los Angeles County in August of 1973 with the Department of Communications.   Prior to her being hired, she was required to take a physical examination.   She characterized her health as good and her health specifically as to her hands as good.

Her first assignment was as a switchboard operator at the Pasadena Courthouse.   After her first year of service, she started having problems with her hands because of the nature of the work.   The switchboard was “[t]he old-fashioned kind where you ․ take the wire and push it in the board, ․ and then take another one and put it in the other board.”   A “sharp constant pain” developed in the fatty part of her thumbs.   As time went on the pain increased to where the appellant was unable to perform her homemaking duties.   Eventually, her husband was required to take over the housekeeping chores.

The appellant was promoted to the position of an intermediate clerk typist in August of 1975.   Initially, the work was easier on her hands.   However, hand printing worksheets, typing and compiling packaging and bundling county directory books caused the pain to become more frequent and more severe.   She reached a stage where the pain became constant with some relief when she was assigned telephone answering duties.

Eventually the pain became so great that on March 9, 1981, petitioner stopped working.   She sought treatment and therapy with the intention of returning to work.   However, because of her incapacity due to her pain, on September 28, 1981, she applied for a service connected disability retirement allowance pursuant to Government Code section 31720.

The respondent Board denied the appellant a service connected disability retirement allowance but did grant a non-service connected disability retirement allowance effective September 28, 1981.   In arriving at its decision regarding the appellant's eligibility, the respondent applied the criteria as enunciated in Government Code section 31720 as amended in 1980 effective January 1, 1981.   The petitioner maintains that the Board erred because “[t]he 1980 amendment to Government Code section 31720 does not apply to members of the retirement system ․ who were members ․ prior to the effective date of that amendment.”

The appellant asserts two contentions of error:  (1) that the Board erred in applying the provisions of section 31720 of the Government Code as amended effective January 1, 1981 rather than as it read at the time of appellant's employment;  and (2) that the Board erred in accepting one expert's opinion and rejecting two others thereby ignoring substantial evidence of appellant's disability's service connection.

I

Whether a vested interest was created in favor of appellant to a disability retirement allowance in conformity with the statutory requirements existent at the time of her employment thereby precluding modification of such interest by subsequent amendment of the said applicable statute?

“․ it is well settled in California that public employment is not held by contract but by statute․”  (Miller v. State of California (1977) 18 Cal.3d 808, 813, 135 Cal.Rptr. 386, 557 P.2d 970;  Butterworth v. Boyd (1938) 12 Cal.2d 140, 151, 82 P.2d 434;  Patton v. Board of Harbor Commissioners (1970) 13 Cal.App.3d 536, 540, 91 Cal.Rptr. 832;  Humbert v. Castro Valley County Fire Protection District (1963) 214 Cal.App.2d 1, 13, 29 Cal.Rptr. 158;  Payne v. State Personnel Board (1958) 162 Cal.App.2d 679, 681, 328 P.2d 849;  Boutwell v. State Board of Equalization (1949) 94 Cal.App.2d 945, 950, 212 P.2d 20;  Risley v. Bd. of Civil Service Commrs. (1943) 60 Cal.App.2d 32, 37–38, 140 P.2d 167.)

Although public employment is not held by contract, “pension rights involve ‘obligations which are protected by the contract clause of the Constitution.’ ”  (Miller v. State of California, supra, 18 Cal.3d at p. 814, 135 Cal.Rptr. 386, 557 P.2d 970;  Suastez v. Plastic Dress-Up Co. (1982) 31 Cal.3d 774, 780, 183 Cal.Rptr. 846, 647 P.2d 122;  Kern v. City of Long Beach (1947) 29 Cal.2d 848, 853, 179 P.2d 799.)  “Pension rights unlike tenure of civil service employment, are deferred compensation earned immediately upon the performance of services for a public employer ‘[and] cannot be destroyed ․ without impairing a contractural obligation.’ ”   (Miller v. State of California, supra, at p. 814, 135 Cal.Rptr. 386, 557 P.2d 970.)  “ ‘․ an employee does not earn the right to a full pension until he has completed the prescribed period of service, but he has actually earned some pension rights as soon as he has performed substantial services for his employer.”  (Id., at p. 815, 135 Cal.Rptr. 386, 557 P.2d 970.)

Although vested prior to the time when the obligation to pay matures, pension rights are not immutable.  “ ‘․ a public pension system is subject to the implied qualification that the governing body may make reasonable modifications and changes before the pension becomes payable and that until that time the employee does not have a right to any fixed or definite benefits but only to a substantial or reasonable pension.’ ”  (Id., at p. 816, 135 Cal.Rptr. 386, 557 P.2d 970;  Wallace v. City of Fresno, supra, 42 Cal.2d 180, 183;  Kern v. City of Long Beach, supra, 29 Cal.2d at p. 855, 179 P.2d 799;  Allen v. City of Long Beach (1955) 45 Cal.2d 128, 287 P.2d 765;  Abbott v. City of Los Angeles (1958) 50 Cal.2d 438, 326 P.2d 484;  Suastez v. Plastic Dress-Up Co., supra, 31 Cal.3d at p. 780–781, 183 Cal.Rptr. 846, 647 P.2d 122.)

“ ‘The fact that a pension right is vested will not ․ prevent its loss upon the occurrence of a condition subsequent․’ ”  (Miller v. State of California, supra, at p. 817, 135 Cal.Rptr. 386, 557 P.2d 970;  Kern v. City of Long Beach, supra, 29 Cal.2d at p. 853, 179 P.2d 799;  Dickey v. Retirement Board (1976) 16 Cal.3d 745, 749, 129 Cal.Rptr. 289, 548 P.2d 689;  Suastez v. Plastic Dress-Up Co., supra, 31 Cal.3d at p. 781, 183 Cal.Rptr. 846, 647 P.2d 122.)

The respondent in his brief has relied heavily on Lundak v. Board of Retirement (1983) 142 Cal.App.3d 1040, 191 Cal.Rptr. 446.   The appellant therein applied for a service connected disability retirement allowance in January 1979.   The benefit was not granted until 1983.   The Lundak court ruled that the 1981 amendment applied.

 A synthesis of the aforementioned cases indicates that retirement benefits or pension rights do not become vested immutably until such time as the applicant has complied with all of the terms and conditions existent at the time of his application therefore and qualifies for the retirement benefit or pension.

II

Whether the fact finder in relying on one expert to support his findings in light of the fact that two other experts had rendered contrary opinions made a determination “not supported by the evidence?”

In a mandamus action the court in reviewing the evidence taken by the referee and considered by the Board should exercise its independent judgment on the evidence taken.  (Harmon v. Board of Retirement (1976) 62 Cal.App.3d 689, 691, 133 Cal.Rptr. 154;  Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 45–46, 112 Cal.Rptr. 805, 520 P.2d 29;  Kimbrough v. Police & Fire Retirement System (1984) 161 Cal.App.3d 1143, 1149, 208 Cal.Rptr. 112.)   This the court herein did and so stated in its minute order of February 24, 1984.  “When the superior court has rendered its judgment on mandamus and the judgment is appealed, the power of the appellate court is governed by the substantial evidence rule, i.e., the determination of whether the evidence viewed in the light most favorable to the respondent sustains the findings of the trial court, resolving any reasonable doubts in favor of those findings.”  (Harmon v. Board of Retirement, supra, 62 Cal.App.3d at p. 691, 133 Cal.Rptr. 154;  Le Strange v. City of Berkeley (1962) 210 Cal.App.2d 313, 26 Cal.Rptr. 550;  Kimbrough v. Police & Fire Retirement System, supra, 161 Cal.App.3d at p. 1149, 208 Cal.Rptr. 112.)

 The applicant who seeks a disability retirement benefit has the burden of proving that the disability complained of arose out of the employment.  (Lindsay v. San Diego Retirement Board (1964) 231 Cal.App.2d 156, 160, 41 Cal.Rptr. 737.)   The opinions of three doctors were considered by the fact finder on the issue of causation.   In commenting on the evidence, the referee in his “summary of evidence, findings of fact and conclusions of law” wrote:

“What we have then is the following:

“An equivocal history as to onset of symptoms;

“One doctor (Yamshon) favors Appellant's position on causation, but concludes in her favor without benefit of x-rays or x-ray findings and suggests referral to a hand specialist (in this case Dr. Costarella, who disagrees with him on causation).

“One doctor (Stoltz) favors Appellant.

“Some doctors (Shah, Sheade, and Knopf) offer nothing on the question of causation.

“One doctor (Costarella), a hand specialist, positively favors respondent on this issue.

“I do not find, then, in considering the above, that applicant has sustained her burden of proof.”

It is noteworthy that the doctor's opinion relied on happens to be the only hand specialist consulted and is the expert that has done the most complete and in-depth examination.

On review of the evidence we cannot say that the trial court erroneously exercised its independent judgment.   Judgment affirmed.

I concur in the result of this opinion.   However, I want to make clear my concern about the issue addressed in section I of the majority opinion—the degree to which pension eligibility criteria can be altered after the employee begins working and thus obtains a vested right to a pension.   True, in the instant case we are dealing with a rather minor change which I find constitutionally permissible.   However, I do not accept the implication the Legislature is free to materially impair an employee's disability pension rights up to the moment the employee applies for benefits.   Contrary to the majority opinion, it is not true the applicant must always have “complied with all of the terms and conditions existent at the time of his application․”  (Italics added.)

In the instant case the Legislature merely clarified that an employee is not entitled to a permanent disability pension unless her “employment contributes substantially to” her permanent incapacity.  (Gov.Code, § 31720, italics added.)   This does not run afoul of the contract clause because it is a refinement of the terms of entitlement to a disability pension which serves to “ ‘restrict a party to the gains “reasonably to be expected from the contract.”  (City of El Paso v. Simmons, supra, [ (1965) ] 379 U.S. [497] at p. 515 [85 S.Ct. 577 at p. 587, 13 L.Ed.2d 446]․)  Constitutional decisions “have never given a law which imposes unforeseen advantages or burdens on a contracting party constitutional immunity against change.   (Citations omitted.)” ’ ”  (Allen v. Board of Administration (1983) 34 Cal.3d 114, 120, 192 Cal.Rptr. 762, 665 P.2d 534, quoting with approval from Lyon v. Flournoy (1969) 271 Cal.App.2d 774, 782, 76 Cal.Rptr. 869.)   To limit service-connected disability pensions to situations where the employment substantially contributes to the disability does not frustrate the employees “reasonable expectations” in the pension system.   Accordingly, this statutory modification is constitutional and appellant did not acquire a vested right in judicial constructions of pre-existing law which may have allowed her to receive a pension even though her employment-related injury or disease failed to “contribute substantially” to her incapacity (see, e.g., Gelman v. Board of Retirement (1978) 85 Cal.App.3d 92, 97, 149 Cal.Rptr. 225;  Heaton v. Marin County Employees Retirement Bd. (1976) 63 Cal.App.3d 421, 133 Cal.Rptr. 809).

It is only because I find this particular eligibility amendment does not frustrate an employee's reasonable pension expectations that I concur in the affirmance of this judgment.  “Minimal alteration of contractual obligations may end the (impairment of contract) inquiry at its first stage.   Severe impairment, on the other hand, will push the inquiry to a careful examination of the nature and purpose of the state legislation.”  (Allied Structural Steel Co. v. Spannaus (1978) 438 U.S. 234, 245, 98 S.Ct. 2716, 2723, 57 L.Ed.2d 727.)   Thus, a more substantial change in eligibility criteria might well not survive constitutional scrutiny.

It already has been established pension rights vest for disability pensions as well as service pensions when a public employee begins working.  (Frank v. Board of Administration (1976) 56 Cal.App.3d 236, 128 Cal.Rptr. 378.   See also Rustad v. City of Long Beach (1953) 122 Cal.App.2d 106, 264 P.2d 955;  Cochran v. City of Long Beach (1956) 139 Cal.App.2d 282, 293 P.2d 839.)   “Even before the happening of the contingency that makes the (disability) pension payable, the right vests when the employee performs services under a law specifying his compensation.  (Citations omitted.) ․  We therefore hold that the plaintiff acquired a vested contractual right to a reasonable disability retirement pension when he entered upon performance of his employment contract with the state.”  (Frank v. Board of Administration, supra, 56 Cal.App.3d at pp. 242–243, 128 Cal.Rptr. 378.)   In the case of substantial impairments, at least, this means “(t)o be sustained as reasonable, alterations of employees' pension rights must bear some material relation to the theory of a pension system and its successful operation, and changes in a pension plan which result in disadvantage to employees should be accompanied by comparable new advantages.”  (Allen v. City of Long Beach (1955) 45 Cal.2d 128, 131, 287 P.2d 765.)

The Frank court applied the “Allen criteria” to a statutory change which had removed custodial employees in the Department of Corrections from those eligible for disability retirement as law enforcement members of the Public Employees' Retirement System.   Shortly after this change in eligibility criteria, a custodial employee suffered a disabling injury and applied for disability retirement.   In an opinion authored by Presiding Justice Puglia, the Third District held this change in the law denied the custodian his vested right to a law enforcement disability pension, a right he had acquired when he started working under the old eligibility criteria.   The court further found this particular eligibility change did not bear a reasonable relation to the integrity or successful operation of the law enforcement pension system (56 Cal.3d at p. 246, 128 Cal.Rptr. 378).   Nor did this particular applicant receive comparable new advantages to compensate him for the disadvantages imposed by the modification in the pension program.  (56 Cal.App.3d at pp. 244–245, 128 Cal.Rptr. 378.)   Accordingly, he was constitutionally entitled to a law enforcement pension even though custodial employees hired after the eligibility modification would not.

I fully subscribe to Justice Puglia's position.   Accordingly, in an appropriate case I would hold employees entitled to have their eligibility for a disability pension judged according to the criteria existing when they began public employment not those existing when they applied for the pension.   But this is not such a case.   Accordingly, I support the result reached by the majority.

FOOTNOTES

FOOTNOTE.  

AISENSON, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

LILLIE, P.J., concurs.