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

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

Thomas BOWEN, Petitioner and Appellant, v. BOARD OF RETIREMENT OF the COUNTY OF LOS ANGELES EMPLOYEES RETIREMENT ASSOCIATION, Respondent.

B004563.

Decided: February 27, 1985

Lemaire, Faunce & Katznelson, and Mark Ellis Singer, Los Angeles, for petitioner and appellant. DeWitt W. Clinton, County Counsel of Los Angeles County, Milton J. Litvin, Asst. County Counsel, and Tina Scarpellino, Deputy County Counsel, Los Angeles, for respondent.

Appellant-employee was granted a nonservice connected disability retirement allowance.   He appeals from decision of the superior court denying his petition for a peremptory writ of mandate ordering respondent employer-County to grant him a service-connected disability retirement allowance.   Affirmed.

I.

Between the time appellant first applied for service-connected disability retirement and the hearing before the referee, an amendment to Government Code section 31720, the applicable statute, was passed by the 1979–80 session of the Legislature and became effective on January 1, 1981.   This amendment attempts to define more precisely the standard for determining whether a disability is service connected.

Prior to the amendment, the relevant section of the statute read:  “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, ․”  (Emphasis added.)

After the amendment the following clause was added to section (a):  “and such employment contributes substantially to such incapacity.”  (Emphasis added.)

This paragraph was also added:  “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.”  (Emphasis added.)

Appellant contends that the use of the words “on or after” signifies that it was the Legislature's intent that the amendment would not apply to those who became applicants before January 1, 1981, citing In re Ramirez (1942) 49 Cal.App.2d 709, 122 P.2d 361, for the proposition that when a statute designates one class of person that is subject to its “penalties”, all other persons are deemed exempt.

Respondent points out that the Legislature used the phrase “all” applicants to mean just that—that every person who was still an applicant “on or after” the effective date was to have the new and more restrictive definition of what constitutes a service-connected disability applied to his claim.

Appellant argues that the use of the earlier definition is a vested right that cannot be changed for those already employed by the county without impairing their constitutional contractual rights.   Appellant relies on Matlovsky v. Board of Retirement (1983) 149 Cal.App.3d 1069, 197 Cal.Rptr. 259, where the court found that retirement rights had vested by the date of application, thus exempting those who applied prior to January 1, 1981 from application of the amendment.

However, Matlovsky is contrary to the interpretation expressed and used in the earlier decision of Lundak v. Board of Retirement (1983) 142 Cal.App.3d 1040, 191 Cal.Rptr. 446.   In footnote 1 thereof, the court explains:  “Although appellant filed his application before this date [Jan. 1, 1981], he has not been granted service-connected disability retirement.   Appellant continues to seek benefits under Government Code section 31720 and is therefore still an ‘applicant for disability retirement.’   Consequently, the amended statute applies to him by virtue of the specific applicability provisions added by the 1980 amendment.”  (Id. at p. 1042–1043, fn. 1, 191 Cal.Rptr. 446.)

 We follow the interpretation of Lundak and therefore respectfully must reject the opposite interpretation adopted in Matlovsky.   We explain briefly the reasoning for this choice.   The Matlovsky decision simply declared the applicant's rights to a pension to be “vested.”   However, vesting is not enough, for it does not prohibit changes in amounts, the method of determining qualification and conditions thereof.   As declared and explained in Miller v. State of California (1977) 18 Cal.3d 808, 135 Cal.Rptr. 386, 557 P.2d 970, and Kern v. City of Long Beach (1947) 29 Cal.2d 848, 179 P.2d 799, this has been the long established rule in California.   As explained in numerous cases (Miller v. State of California, supra, 18 Cal.3d 808, 135 Cal.Rptr. 386, 557 P.2d 970;  Abbott v. City of Los Angeles (1958) 50 Cal.2d 438, 326 P.2d 484;  Allen v. City of Long Beach (1955) 45 Cal.2d 128, 287 P.2d 765;  Kern v. City of Long Beach, supra, 29 Cal.2d 848, 179 P.2d 799), the public employer may not destroy vested pension rights but it may make modifications of pension rights even though such rights are deemed “vested.”

The Matlovsky decision makes no mention of the earlier decision of Lundak nor of any of the other cases from our Supreme Court noted above.   Nor does it attempt to explain how the “vested” right it finds present is different than the same kind of vested right which those Supreme Court cases say may be modified.   The Matlovsky decision observes that the statute prior to its change has been construed in a series of cases prior to the amendment and notes the effect of the new amendment.   But the cases referred to, including the one cited case of Gelman v. Board of Retirement (1978) 85 Cal.App.3d 92, 149 Cal.Rptr. 225, do not involve the problem of choosing between the old or the amended statute.   Neither does the case explain how the other cases support the conclusion that vesting alone compels the use of the former statute rather than the amended statute.1  In view of the holdings and language of the foregoing cases from our own Supreme Court, we are unable to accept the mere fact of vesting as the determinative factor alone as did the Matlovsky court.

 The interpretation in Lundak v. Board of Retirement, which we follow, does not destroy any “vested” contractual right under either federal or state Constitutions.   In Kern v. City of Long Beach, supra, 29 Cal.2d 848, 179 P.2d 799, our Supreme Court explained that when services are rendered to a government under a pension statute, the pension provisions become part of the contemplated compensation for those services and so in a sense a part of the contract of employment itself;  however, the Court also said that although an employee has a vested right to a pension, the amount, terms and conditions of the benefits may be altered.

 Appellant contends that changes in pension plans which result in a disadvantage to employees should be accompanied by new comparable advantages (Frank v. Board of Administration (1976) 56 Cal.App.3d 236, 128 Cal.Rptr. 378);  but, as the Frank court also ruled, reasonable modification of pension benefits may be made prior to retirement in order to maintain flexibility necessary to adjust conditions while insuring integrity of the system;  and it is for the court to determine on the facts of each case what constitutes a reasonable and therefore permissible modification.

 We find that the amendment in issue here did not adversely affect any vested interest of appellant but only reasonably modified the definition of “service-connected.”   This modification ultimately benefits an employee by giving better guidelines as to whether he should apply for service-connected disability retirement and protects the financial integrity of the total retirement system.

The referee and trial judge correctly applied the standard of causation defined in the amendment in rendering their decisions.

II.

Was the decision to deny appellant a service-connected disability retirement allowance supported by substantial evidence?

 Where there is substantial evidence to support a finding of real or measurable causal connection between employment duties and disabilities and also substantial evidence to support a contrary finding, it is the duty of the court to weigh conflicting evidence and exercise independent judgment in determining whether the causal connection exists.  (DePuy v. Board of Retirement (1978) 87 Cal.App.3d 392, 150 Cal.Rptr. 791.)   The record clearly shows the court fulfilled this duty in arriving at its decision.   Nonetheless, appellant contends the trial court arrived at the wrong conclusion because it applied an incorrect standard regarding causation.

Appellant and respondent urge different interpretations of the word “substantial.”   Appellant cites Lundak v. Board of Retirement, supra, 142 Cal.App.3d 1040, 191 Cal.Rptr. 446 in which the court relied on DePuy, supra, and used principles of tort law to justify its conclusion that the contribution of the applicant's employment to his disability “need only be real and measurable”, a definition set forth in DePuy, supra, and used principles of tort law to justify its conclusion that the contribution of the applicant's employment to his disability “need only be real and measurable”, a definition set forth in DePuy, supra, in order to support an award.   Respondent urges an interpretation that incorporates the definition of substantial as it is used in the phrases “substantial evidence” and “substantive [sic] trial.”   It is unnecessary to look to any of these “legal” definitions.

 Courts are bound to give effect to statutes according to the usual, ordinary import of the language employed in framing them.  (Heaton v. Marin County Employees Retirement Bd. (1976) 63 Cal.App.3d 421, 133 Cal.Rptr. 409;  Rich v. State Board of Optometry (1965) 235 Cal.App.2d 591, 45 Cal.Rptr. 512.)   Among the dictionary definitions of the word substantial are the words “material, real, true, considerable, large, important, essential.”

 It is true that pension legislation must be liberally construed and applied so that the beneficent results of such legislation may be achieved.   (Lundak v. Board of Retirement, supra, 142 Cal.App.3d 1040, 191 Cal.Rptr. 446.)   However, the Legislature enacted the amended to Government Code section 31720 after local governments expressed concern that their retirement systems would soon be bankrupt if the court's liberal interpretation of industrial causation as evidenced in the Heaton and Gelman cases were to continue.

 While employment need not be the sole cause of employee's disability in order for an award of service-connected disability retirement to be made (Lundak v. Board of Retirement, supra;  Heaton v. Marin County Employees Retirement Bd., supra ), we find that the Lundak court returned to the rationale of Heaton and Gelman, a rationale the Legislature did not intend, when it used the DePuy tests of “small part” and “real and measurable” to reverse a trial court's denial of service-connected disability retirement.  DePuy was decided prior to passage of the amendment and thus its description of substantial is not applicable to post-amendment claims.

 Even if we were to use the pre-amendment wording of the statute, we would uphold the decision of the trial court as reasonable and supported.   That court stated:  “The most persuasive part of the evidence here on causation, as I indicated, is the factual scenario of what happened.   The long lapse between the working for the county and the onset of the event.”   The trial court in exercising its independent judgment reached a conclusion supported by ample evidence.   The facts—that (1) appellant required no real medical care prior to quitting work, (2) he did not seek medical (psychiatric) attention until more than a year after quitting, (3) he did not suffer his coronary until more than two years after quitting, and (4) some medical opinion attributed “zero” percent of appellant's disability to industrial factors—were substantial evidence that the disabilities were not related to employment.

The judgment is affirmed.

FOOTNOTES

1.   The decision observes that on the date of his application (July 1976), Matlovsky's retirement rights had vested.   The court states:  “It is immaterial that bureaucratic red tape has postponed his enjoyment of those rights until 1983.”In the matter before us there is here no claim nor record of any such bureaucratic red tape or unnecessary delay.

BEACH, Associate Justice.

ROTH, P.J., and COMPTON, J., concur.

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