PINION v. BOARD OF RETIREMENT (1979)

OPINION

STATEMENT OF THE CASE

This appeal is from a judgment denying appellant's petition for a writ of administrative mandate. The writ was sought to set aside a decision of respondent board denying appellant's application for a service-connected disability retirement. Appellant's request was denied by the board on the ground that the permanent incapacity which led to his retirement (arteriosclerosis) was not the result of injury or disease arising out of or in the course of his employment.¹

The superior court conducted an independent review of the evidence and concluded that the board's decision should be upheld. Accordingly, appellant's petition for a writ of mandate was denied. A timely appeal followed.

THE EVIDENCE

Appellant Walter Pinion (a member of the Fresno County Employees Retirement Association) commenced his employment as a law enforcement officer with the Fresno County Sheriff's Department on October 1, 1948. That employment continued until January 19, 1972, when appellant retired at the recommendation of his physician. During his tenure with the sheriff's department, appellant worked briefly as a bailiff and as a night switchboard operator; he then spent two years as the resident deputy sheriff at Highway City. In this assignment he worked approximately 18 hours per day and often was on duty six or seven days a week. He was the only deputy assigned to that area and regularly had to singlehandedly break up large groups fighting with clubs and knives. After the Highway City assignment, appellant worked with the detective division for about 20 years. In this assignment involving “field work” appellant usually worked more than 60 hours a week and was subjected to numerous irritations and indignities.

The first symptoms suggesting that appellant might have a heart problem appeared while he was on duty on November 26, 1971. Appellant was driving along Van Ness Avenue in the City of Fresno when his vehicle was rear ended by another car. Shortly thereafter he became very nervous and flushed; he experienced breathing difficulties centering in his chest area for several minutes. Appellant visited his family doctor that day. Apparently he did not mention the breathing difficulty and was treated only for neck and back strain.

Appellant experienced a “slowed down” feeling in December and took a week off from work. His next doctor's appointment was on January 13, 1972. At that time, appellant told his family physician that he had experienced recurrent chest pains. The pains began on January 4 when appellant was on duty; he was in the process of carrying and installing two burglar alarms, each weighing about 25 pounds. From the onset of the pain on the 4th of January until the doctor's visit on January 13, appellant's chest pains recurred about every 30 to 60 minutes.

After hearing of these pains, appellant's family physician referred him to Dr. Heckel, a cardiologist, who conducted an examination and concluded that Mr. Pinion had an advanced state of arteriosclerotic heart disease (a narrowing of the arteries due to fat deposits which reduces the amount of blood and oxygen reaching the heart muscle when the body is stressed). Dr. Heckel told appellant that he should not work because he probably would not survive a stressful situation such as chasing a suspect. At Dr. Heckel's recommendation, appellant retired from the sheriff's department the next day.

Appellant was thereafter examined by numerous physicians. There was general agreement as to the diagnosis and prognosis. However, the doctors did not agree as to the causes of the arteriosclerosis. Dr. Martin Goldfarb, who testified as a witness for appellant, recognized that there were several predisposing factors in appellant's medical history; overweight, poor eating habits, heavy tobacco use in the past, a family history of heart disease, and appellant's history of mild diabetes and gout. However, Dr. Goldfarb stated his opinion that while appellant had the “setup” to develop this condition, his stressful job as a deputy sheriff “accelerated … and contributed to the coronary condition.” Several other heart specialists confirmed Dr. Goldfarb's opinion that stress can accelerate an extreme arteriosclerotic condition.

The contrary opinion was advanced by Dr. Ellsworth Miller, a county health officer, who testified that in his opinion the everyday stresses and strains of appellant's job neither caused nor accelerated the progress of his coronary artery disease. Dr. Miller also testified that he did not think appellant's on-duty car accident on November 26, 1971, had caused or aggravated his heart disease. Dr. Miller conceded that acute stressful situations, like those encountered by police officers, can bring on a heart attack in one who has arteriosclerosis, but he emphatically took the position that stress and strain cannot cause, aggravate, or accelerate the arteriosclerosis.

Respondent board adopted the view of Dr. Miller and found that appellant's heart condition did not arise out of his employment.

DISCUSSION

Appellant contends there is no substantial evidence to support the board's finding that his incapacity was not the result of injury or disease arising out or in the course of his employment. Specifically, he argues that the board could not rely on Dr. Miller's opinion that stress does not cause or aggravate arteriosclerosis because that testimony undermines the spirit of the presumption established by Government Code section 31720.5. We agree with appellant's contention.

Government Code section 31720.5, enacted as part of the County Employees' Retirement Law of 1937, provided in pertinent part at the time of appellant's retirement:

“If a … member in active law enforcement who has completed five years or more of service under [a specified pension or retirement system] develops heart trouble, it shall be presumed … 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.”

In Stephens v. Workmen's Comp. Appeals Bd. (1971) 20 Cal.App.3d 461, 97 Cal.Rptr. 713, hg. den., an employee sought workmen's compensation benefits for arteriosclerosis, and the benefits were denied by the board on the basis that the applicant's heart condition was not work induced. The board had accepted and relied on expert medical testimony to the effect that stressful occupations could not cause or aggravate arteriosclerosis. The proceedings for workmen's compensation benefits were governed by a statutory presumption (Lab.Code, § 3212.2) similar to the one applicable in the present case. The presumption in Stephens provided that for certain specified employees “the term ‘injury’ … includes heart trouble which develops or manifests itself during a period while such … employee is in the service of [his employer]․ Such heart trouble so developing or manifesting itself in such cases shall be presumed to arise out of and in the course of the employment. This presumption is disputable and may be controverted by other evidence, but unless so controverted, the appeals board is bound to find in accordance with it.” (Emphasis added, Lab.Code, § 3212.2.)

The Stephens court held that “[i]t is impermissible for a compensation carrier to ‘repeal’ this legislation, wiping out the presumption created by section 3212.2, by seeking out a doctor whose beliefs preclude its possible application. It is impermissible for the board or its referee to accept the opinion of a physician so disposed as the basis for disallowing a claim.” (20 Cal.App.3d at p. 467, 97 Cal.Rptr. at p. 716.)

The court explained its reasons for such a holding:

“Two factors vital in this matter become apparent as one reads this legislation and considers its purpose. First, the presumption is available not only in cases where heart trouble has ‘manifested’ itself (i. e., has produced definite symptoms such as angina attacks or abnormal electrocardiograms) but also where it has ‘developed’ (i. e., where it exists but remains in an asymptomatic state.) Second, the Legislature has resolved in favor of workmen in the enumerated stressful occupations a question which some members of the medical profession (as disclosed by the evidence in this matter) dispute—do stressful occupations cause heart trouble? It has delivered a legislative mandate: stressful occupations of these classes not only can cause heart trouble, there is a presumption that they do.” (20 Cal.App.3d at p. 465, 97 Cal.Rptr. at p. 715.)

Respondent board makes several arguments against applying the Stephens rationale to the area of pension and retirement benefits. First, respondent argues that the purpose of the workers' compensation board is to compensate injured workers while they are incapable of earning a living whereas the retirement board is concerned only with the retirement of a limited class of public employees for the betterment of the public service. (Pathe v. City of Bakersfield (1967) 255 Cal.App.2d 409, 414-415, 63 Cal.Rptr. 220.) Respondent also notes that the decisions of the workers' compensation board are not binding on retirement boards. (See Grant v. Board of Retirement (1967) 253 Cal.App.2d 1020, 1021, 61 Cal.Rptr. 791.) However, in Gelman v. Board of Retirement (1978) 85 Cal.App.3d 92, 149 Cal.Rptr. 225, it is pointed out that the two systems are like-minded in their aim to benefit the employee; hence, “the tendency is to view the two bodies of law as compatible rather than the opposite.” (Id., at p. 96, 149 Cal.Rptr. at p. 227.) Moreover, as noted in Pathe v. City of Bakersfield, supra, 255 Cal.App.2d at page 416, 63 Cal.Rptr. 220, the retirement system does not affect, abrogate or modify the workers' compensation laws in any manner. To the contrary, it grants additional compensation benefits to employees who are compelled to retire for service-connected disabilities and to this extent it is in harmony rather than in conflict with the workers' compensation laws. Thus, it is apparent that cases involving workers' compensation benefits afford persuasive analogies in the area of pension and retirement benefits.

Second, respondent board argues that the language of the statutory presumption of Labor Code section 3212.2 involved in Stephens is “manifestly different” from the language of the presumption established by Government Code section 31720.5. Although respondent concedes that both statutes provide that it will be presumed that heart trouble occurring to a member in active law enforcement arises out of and in the course of his employment, it contends that the statutes are substantially different because the Labor Code section provides that the presumption “… is disputable and may be controverted by other evidence, but unless so controverted, the appeals board is bound to find in accordance with it,” while the Government Code presumption merely provides that in any retirement board proceeding the stated facts will be presumed by the board and the court in the absence of evidence to the contrary. Respondent's argument is untenable; it exalts form over substance. Although the statutes contain different words, it is readily apparent that the legislative intent is the same: to create rebuttable presumptions that heart trouble developing or manifesting itself during the service of specified employees, who have served at least five years, arose out of such service.

In City and County of San Francisco v. Workers' Comp. Appeals Bd. (1978) 22 Cal.3d 103, 148 Cal.Rptr. 626, 583 P.2d 151, our Supreme Court upheld the constitutionality of a similar presumption established in Labor Code section 3212.5. In that case, the workers' compensation appeals board had awarded benefits to the applicants, despite the fact that the only medical opinion testimony before the board was that job stress does not play a causal role in the development and progression of coronary heart disease. The applicants there presented no contrary medical opinion, being satisfied that the statutory presumption of work-relatedness had not been rebutted by the doctor's opinion (22 Cal.3d at pp. 107-108, 148 Cal.Rptr. 626, 583 P.2d 151). The Supreme Court upheld the award and the statutory presumption. In so doing, the court noted that the purpose of such a presumption was to put an end to the inconsistent results reached in cases where benefits were sought for heart disease. Prior to the enactment of the presumption, the results in individual cases had not turned on the particular facts; the outcome depended solely upon which of two competing schools of medical thought was accepted by the referee or appeals board. Because of the persisting cleavage in medical opinion as to the role of job stress in heart disease, each side could find an expert to testify on its behalf. Whichever opinion the board chose to adopt could be upheld on appeal because either side's expert medical testimony constituted substantial evidence. Thus, contradictory results were reached on virtually indistinguishable facts (id., at pp. 108-110, 148 Cal.Rptr. 626, 583 P.2d 151; see Note, Workmen's Compensation—Diseases Arising Out of Employment—A Problem of Proof (1971) 2 Pacific L.J. 678, 689-691).

According to the Supreme Court, the statutory presumption enacted to rectify this situation did not create an unconstitutional conclusive presumption although it contained language to the effect that “such heart trouble … so developing or manifesting itself in such cases shall in no case be attributed to any [pre-existing] disease ․” (22 Cal.3d at p. 121, 148 Cal.Rptr. at p. 637, 583 P.2d at p. 162.) As we note below, the applicable presumption in the present case was amended in 1974 to contain a similar clause; thus, the presumption in the present case is constitutional in both its pre- and post-1974 forms.

We are persuaded that the reasoning of the workers' compensation cases involving the presumptions under Labor Code sections 3212.2 and 3212.5 is applicable to the presumption under Government Code section 31720.5 governing county employee retirement benefits. To allow the “persisting cleavage in medical theory” as to the relationship between stress, physical exertion and progressive heart disease (id., at pp. 108-198, 148 Cal.Rptr. 626, 583 P.2d 151) to foreclose retirement benefits to a 24-year veteran police officer who was forced to retire because of a heart condition would be to thwart the legislatively declared policy that stress does accelerate an arteriosclerotic condition and cause heart attacks. Therefore, it was error for the board to base its decision on the testimony of Dr. Miller;² such testimony did not rebut the presumption of Government Code section 31720.5. Furthermore, since the record shows no evidence independent of Dr. Miller's testimony on which the respondent board could base its decision that appellant's heart condition was not job related, the judgment cannot be upheld.

In 1974, two years after appellant retired, section 31720.5 was amended to delete the words “in the absence of evidence to the contrary” and to add an additional sentence; it now provides that “if … a member in active law enforcement who has completed five years or more service . . develops heart trouble, such heart trouble so developing or manifesting itself . . shall be presumed to arise out of and in the course of employment. Such heart trouble so developing or manifesting itself in such cases shall in no case be attributed to any disease existing prior to such development or manifestation.” (Emphasized portion was added by the amendment.)

Contrary to the argument advanced by the dissent, it appears that the 1974 amendment to section 31720.5 was intended only as a legislative clarification of existing law rather than a change in the law. We must assume that the Legislature was aware of the holding in Stephens v. Workmen's Comp. Appeals Bd., supra, 20 Cal.App.3d 461, 97 Cal.Rptr. 713, decided three years earlier. (See 45 Cal.Jur.2d, Statutes, § 101, p. 615.) The obvious purpose of the 1974 amendment was to save the presumption created by the former statute which had been nullified by a dubious medical theory. The amendment does not render the presumption conclusive; it still may be rebutted by evidence that the heart condition was not work related in the particular case.³ Our holding, as in Stephens, merely precludes a rebuttal of the presumption by evidence that job related stress can never cause or aggravate arteriosclerosis.

The judgment is reversed. The matter is remanded to the trial court with directions to issue a writ of administrative mandate commanding respondent board to award appellant service-connected disability benefits on the basis of a heart disease arising out of and in the course of his employment.

I respectfully dissent.

In effect the holding in the principal opinion is that a legislatively created rebuttable presumption, which on its face is unlimited as to evidence which may be introduced to rebut it, nevertheless may not on public policy grounds be rebutted by a certain class of evidence, thus giving the presumption conclusive effect.

The relevant statute (Gov.Code, § 31720.5) applicable to appellant's claim read in pertinent part as of that time:

“If a … member in active law enforcement who has completed five years or more of service under [a specified pension or retirement system] develops heart trouble, it shall be presumed … 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.”

The language of the statute is plain and unambiguous. On its face the presumption may be rebutted by “evidence to the contrary.” The statute does not limit the class or type of evidence which may be introduced to rebut it. Persuasive in determining the legislative intent in enacting the statute is the fact that in 1974, two years after this claim, the Legislature amended the section to eliminate the phrase “in the absence of evidence to the contrary” and added the language “[s]uch heart trouble so developing or manifesting itself in such cases shall in no case be attributed to any disease existing prior to such development or manifestation.” Thus the Legislature as a matter of public policy changed the presumption from being rebuttable to one which is irrebuttable with respect to the type of evidence here under consideration. If the principal opinion is correct, the Legislature was in error in believing any change was necessary.

In the case of City and County of San Francisco v. Workers' Comp. Appeals Bd. (Wiebe) (1978) 22 Cal.3d 103, 148 Cal.Rptr. 626, 583 P.2d 151 (hereinafter Wiebe) the Supreme Court traced the history of Labor Code section 3212.5 which prior to 1959 contained a similar rebuttable presumption as to police officers claiming workers' compensation benefits. Referring to the statute as it then existed, the court stated:

“Under the pre-1959 version of section 3212.5, if a police officer with five or more years of experience suffered a heart attack, it was presumed that the heart trouble arose out of his employment, and, in the absence of any contrary evidence introduced by the employer, the WCAB was obliged to find the injury compensable. Whenever the employer came forward with evidence suggesting that the heart attack was not work related, however, the effect of the statutory presumption disappeared [citation], and the WCAB was then compelled to resolve the continuing medical dispute on a case-by-case basis much as it had attempted to do so futilely in the past. Since, as we have noted, there was no shortage of medical experts who subscribed to the view that employment-related stress and exertion play no role in the development of progressive heart disease, employers had no difficulty in producing medical testimony in virtually all cases that a heart attack sustained by a worker who suffered from a preexisting disease was not work related. Thus, in its pre-1959 state, section 3212.5 failed to alleviate the gross inequities and unfairness which flowed from the inevitable and inconclusive ‘battle of the experts' in preexisting heart disease cases.” (Id., at p. 111, 148 Cal.Rptr. at p. 631, 583 P.2d at p. 156, second emphasis added.)

The court proceeded to explain that a 1959 amendment to Labor Code section 3212.5 which contains language identical to that contained in the 1974 amendment to Government Code section 31720.5 was addressed to making the presumption irrebuttable by evidence that the heart trouble developing or manifesting itself during employment was attributable to a preexisting heart disease, thereby precluding the introduction of evidence to show that employment-related stress and exertion play no role in the development of a progressive heart disease.

Thus the Supreme Court in the context of the Workers' Compensation Law expressly spoke to the issue involved in the case at bench, in effect stating that the presumption before the amendment could be rebutted by expert testimony that job-related stress does not cause or accelerate the progress of coronary arteriosclerosis. Since the principal opinion concedes that cases involving workers' compensation benefits afford persuasive analogies in the area of pension and retirement benefits (see Gelman v. Board of Retirement (1978) 85 Cal.App.3d 92, 96, 149 Cal.Rptr. 225), I would conclude that the Supreme Court's language in Wiebe is determinative of the issue herein.

The principal opinion places primary reliance upon Stephens v. Workmen's Comp. Appeals Bd. (1971) 20 Cal.App.3d 461, 467, 97 Cal.Rptr. 713. I would decline to follow the language of that case, not only because it is wrong in principle but because it conflicts with the language of the Supreme Court in Wiebe. Stephens dealt with Labor Code section 3212.2 (pertaining to classes of security officer-employees of the Department of Correction, Youth Authority, and Atascadero State Hospital) which contained a rebuttable presumption stating in pertinent part: “the term ‘injury’ includes heart trouble which develops or manifests itself during a period while such … employee is in the service of [[[[his employer] ․ [¶] Such heart trouble so developing or manifesting itself in such cases shall be presumed to arise out of and in the course of the employment. This presumption is disputable and may be controverted by other evidence, but unless so controverted, the appeals board is bound to find in accordance with it.” In that case the Court of Appeal held that the presumption could not be rebutted by medical opinion to the effect that job stress does not play a causal role in the development and progression of coronary heart disease. The court merely states in conclusional language that that is the legislative intent. Other than the natural sympathy for the employee, it is difficult to understand the basis of the decision in that the statutory rebuttable presumption was in no manner restricted as to type or class of evidence that may be introduced to rebut it. The language of the court, however, makes clear that in fact the court impermissibly allied itself on the side of medical opinion that job-related stress and strain can and does contribute to the development and aggravation of arteriosclerosis. Moreover, the holding in Stephens is directly contrary to the language of the Supreme Court in Wiebe interpreting Labor Code section 3212.5 containing identical language.

Thus, as in the case at bench, the court in Stephens in effect legislated an amendment to the statute by reading an exception into the statute which plainly is not there. It is manifest that assuring compensation to a public employee retiree whose job exposes him to unusual stress and strain irrespective of whether the stress and strain causes the physical condition requiring the retirement of the employee is a public policy question clearly falling in the legislative sphere. The court should not enter at prohibited domain. The result, while emotionally appealing, cannot, in my opinion, be legally justified.

I would affirm the judgment.

FOOTNOTES

1.  In order to obtain a service-connected disability benefit, the retiring county employee must have completed five years of service. He must be permanently incapacitated for the performance of duty and the incapacity must be a result of injury or disease arising out of and in the course of his employment (Gov.Code, § 31720).

2.  Interestingly, Dr. Miller was not asked if the tension and psychological pressure of appellant's job contributed to appellant's overeating and over-smoking which in turn could have contributed to his arteriosclerotic condition. It is doubtful that Dr. Miller would have given a negative answer to such a question, which leads inevitably to the conclusion that arteriosclerosis can be work induced. Unless we are prepared to say that persons genetically inclined to arteriosclerosis should not be hired as police officers, Dr. Miller's opinion is difficult to understand.

3.  If there were evidence that the particular duties performed by appellant were not stress-producing, this would support the board's decision apart from Dr. Miller's testimony. However, our review of the evidence concerning appellant's responsibilities and the long hours he worked conclusively show that his job was continuously stress-producing. The strains of appellant's job were uniformly recognized by the physicians who examined him. (See also Selye, The Stress of Police Work, (Fall 1978) vol. 1, No. 1, Police Stress (Official Publication of the International Law Enforcement Stress Association), p. 7.)

FRANSON, Associate Justice.

HOPPER, J., concur. GEO. A. BROWN, Presiding Justice, dissenting.Hearing denied; CLARK, J., dissenting.