Opinion
F069466
03-24-2015
THOMAS ALBERDA, Plaintiff and Respondent, v. BOARD OF RETIREMENT OF FRESNO COUNTY EMPLOYEES' RETIREMENT ASSOCIATION, Defendant and Appellant.
Daniel C. Cederborg, County Counsel, and Michael R. Linden, Deputy County Counsel, for Defendant and Appellant. Thomas J. Tusan for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 10CECG02961)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Carlos A. Cabrera, Judge. Daniel C. Cederborg, County Counsel, and Michael R. Linden, Deputy County Counsel, for Defendant and Appellant. Thomas J. Tusan for Plaintiff and Respondent.
-ooOoo-
The Board of Retirement of Fresno County Employees' Retirement Association (Board) denied Thomas Alberda's application for a service-connected disability retirement. Alberda filed a petition for writ of mandate to set aside the Board's determination, which the trial court denied. Alberda appealed, claiming the trial court applied an incorrect standard of review. We agreed with Alberda and, in Alberda v. Board of Retirement (2013) 214 Cal.App.4th 426, 436 (Alberda I), we reversed the order denying the petition and remanded the case to the trial court with directions to reconsider Alberda's petition under the independent judgment standard of review.
On remand, the trial court granted Alberda's petition and issued a writ of mandate commanding the Board to grant Alberda's application for a service-connected disability retirement. The Board appeals, arguing: (1) the trial court did not correctly apply the independent judgment standard of review because it did not presume the correctness of the administrative findings; and (2) even if the standard was correctly applied, the trial court's findings are not supported by substantial evidence. Finding no merit to the Board's contentions, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
This background is taken largely from this court's opinion in Alberda I, supra, 214 Cal.App.4th at pp. 428-433.
Alberda began work as a full-time Fresno County deputy sheriff in 1993 as a bailiff; from 1991 to 1993, he worked for the County as an extra help court bailiff. In January 1994, he started working as a patrol deputy. Before his employment with the County, Alberda had two surgeries on his right knee: The first, in 1981, was to repair damage he sustained when he dislocated his right knee while playing high school basketball; the second, in 1984, was to remove a chip in the right knee which occurred while playing basketball. The knee did not require ongoing treatment; Alberda passed his Fresno County pre-employment physical as well as the physical requirements of the law enforcement academy.
In May 1995, Alberda hyper-extended his right leg while on duty, causing an internal derangement that required surgery, which Malcolm E. Ghazal, M.D. performed that month. Before the surgery, Dr. Ghazal advised Alberda that while the surgery would relieve his immediate symptoms, he had underlying arthritis in his knee which would continue to worsen with time and eventually could require a significant surgical procedure. Dr. Ghazal, however, hoped such a surgery could be deferred for "many years to come." In August 1995, Alberda returned to full duty without restriction.
Sometime in 2003, Alberda, who is six feet, seven inches tall, was assigned a smaller patrol vehicle into which he did not comfortably fit; while he could work, his knees were crammed into the dashboard. After about a year, he began having severe problems with both knees and was in continual pain. He stopped working in June 2005 due to the pain in his knees and sought treatment from Marc Johnson, M.D. Orthopedic surgeon Ronald R. Castonguay, M.D. performed surgeries to repair meniscus tears on both of Alberda's knees: the first, on September 16, 2005, was on his right knee, and the second, on October 28, 2005, was on his left knee.
Alberda did not recall any specific injury to his left knee during his career, although he recalled an instance in 2001 in which he went to the hospital after he had "gone down hard" on the left knee while arresting a suspect. He thought a report of the incident had been prepared, but one was never located. Both Drs. Johnson and Castonguay, however, suggested to him that his left knee was hurting because he may have been favoring his right knee. It was a month after the surgery on his right knee that he told Dr. Castonguay there was something wrong with his left knee; it was after the surgery to his left knee that he found problems with that knee.
In March 2007, Alberda filed an application for a service-connected disability retirement. On April 4, 2008, the Board denied the application and instead approved the grant of a non-service connected disability retirement if Alberda wished to apply for one. Alberda submitted a request for a hearing on the Board's decision, which was held on March 8, 2010. The evidence consisted of testimony by Alberda, Alberda's expert, Hiram B. Morgan, Jr., M.D., and an expert who performed an independent medical examination of Alberda for the Fresno County Employees' Retirement Association (Association), Andrew Thomas Brooks, M.D., as well as medical reports and other documents.
Drs. Brooks and Morgan agreed that due to the problems in both knees, Alberda was not capable of performing the essential job duties of a deputy sheriff and his condition was permanent. They differed, however, on their opinions regarding the cause of Alberda's knee problems.
Dr. Morgan, a board certified orthopedic surgeon who also performed independent medical evaluations, examined Alberda on November 4, 2009, and prepared a report. In his report, Dr. Morgan opined that, during the course of Alberda's 14-year employment as a deputy sheriff, he had a gradually evolving bilateral degenerative joint disease of the knees, "superimposed" upon a history of a "benign injury to the right knee in 1981" and a "minimal arthroscopic surgical procedure in 1985 to retrieve a loose body," for which records were not available. Dr. Morgan believed Alberda's duties as a deputy sheriff resulted in ongoing degenerative change bilaterally, including to the previously uninjured left knee. He also believed the "[n]early two months of constant repetitive daily patellofemoral compression phenomenon," and the possibility Alberda harbored a genetic "short straw" with respect to both knees, contributed to the situation. Dr. Morgan doubted that the surgeries in the 1980's contributed to Alberda's later problems, given the healing capacity of those in his age group.
Dr. Morgan testified at the hearing that before Alberda's employment as a deputy sheriff, he had no known pre-existing significant disease in the left knee, no known obviously significant advancing, degenerative disease in the right knee, and no history of ongoing inflammatory disease, significant symptoms or knee impairment. While Dr. Morgan recognized that Alberda's age, size and possible genetic predisposition contributed to his knee problems, Alberda's degenerative disease problems were more advanced than one would expect. Dr. Morgan opined a number of factors caused Alberda's knee problems, including the 1995 on-the-job knee injury, the pressure from the patrol vehicle's instrument panel, the "biological imperative of aging," and general living and working. He believed one of the most significant problems was the 1995 injury of the right knee, which was a "very significant injury" that resulted in the continuing breakdown of the right knee. He did not attribute the 1981 knee injury as a cause of Alberda's later knee problems, since the original injury did not involve a weight-bearing joint surface and instead involved an unstable patella. Dr. Morgan explained that when a forceful circumstance forces the patella "off the front, something has to give, so the retinaculum gave and had to be repaired." Alberda, however, went through rehab and was fine except for the later small loose body.
Dr. Morgan attributed 70 percent of Alberda's right knee condition to the May 1995 injury, and 30 to 45 percent of his left knee condition to his working conditions. The rest of the problems to the right knee were attributable to "life," including other things that happened during the course of Alberda's employment with the sheriff's office. He did not think that Alberda necessarily was suffering from degenerative disease when Dr. Ghazal treated Alberda in 1995, noting that the arthroscopy performed after Dr. Ghazal's statement showed only recent trauma to the knee, and he believed Alberda's knees were fine before the 1995 injury. According to Dr. Morgan, degenerative joint disease usually is not disabling in itself and requires trauma to the joint to become a problem. It was unusual for degenerative disease to become disabling in someone in their 40s or 50s, unless they had a "really nasty arthritic process like rheumatoid disease or lupus[,]"; mechanical wearing usually was not disabling for someone in that age group.
Dr. Morgan testified that a meniscus tear is caused by either traumatic injury or degenerative disease, and admitted he was unaware of any trauma to the left knee. Dr. Morgan opined the injury to the left knee occurred as a result of it being used differently during times when the right knee was injured, as well as constant stress on it from the instrument panel. He believed the right knee injury alone prevented Alberda from working as a sheriff. Dr. Morgan explained that the left knee could be used as a control study - if Alberda did not have all the findings seen in his right knee and the type of difficulties he experienced after the 1995 injury, then his right knee would be like his left, and he could continue to perform his job with conservative treatment, such as oral anti-inflammatory agents and exercise.
Dr. Brooks, an orthopedist specializing in hips and knees, examined Alberda in 2007. In his written report, Dr. Brooks opined that Alberda's incapacity did not arise out of his employment, as the degenerative changes found in his right knee at the time of his 1995 arthroscopy pre-dated his employment and would have worsened gradually. While he believed the 1995 injury to the right knee may have aggravated the preexisting conditions, there was no doubt in his mind the arthritis would progress to the point where Alberda would be unable to continue working, either with or without injury. Although sitting in a patrol car with knees flexed would create increased pain, it did not substantially change the course of the disease. Dr. Brooks also noted the lack of evidence of injury, or of a significant injury, to the left knee that would cause a medial meniscus tear. Dr. Brooks believed Alberda's chronic obesity played a significantly larger role in the development of the degenerative changes in both knees.
At the hearing, Dr. Brooks opined the cause of Alberda's disability was arthritis in both knees. Based on what Alberda told him about the 1981 surgery, he believed the procedure was "very significant." As for the 1984 surgery, Dr. Brooks believed the injury was caused by either arthritis or trauma, and although he did not have the operative report, he thought the surgery was to correct a significant problem that was very common in people with arthritis or "big traumas." With respect to the 1995 injury, Dr. Brooks testified the damage to the right knee was caused by a combination of the 1995 on-the-job incident and the arthritis that was already present in that knee. Dr. Brooks thought that while it would hurt Alberda to have his knees pressed against the dash of the patrol vehicle, it was unlikely that caused any actual, significant knee damage. The meniscus tears Alberda experienced in 2005 were the result of the natural progression and history of his arthritis. Dr. Brooks thought the argument that the left knee could become more symptomatic while recovering from right knee surgery was "ludicrous," as he never felt that was a cause for legitimate knee problems, and agreed it was possible the left knee would become more painful if the person had preexisting arthritis.
In Dr. Brooks' opinion, Alberda would have been in the same position even had he not been a deputy sheriff, as the damage to his knees would have progressed just through the activities of daily living. This was why Dr. Brooks believed the left knee was arthritic despite the absence of damage or trauma to it. Dr. Brooks also thought Alberda had a genetic predisposition to becoming arthritic, although he admitted there was no test to confirm that. Dr. Brooks did not think Alberda would have been able to sit in the patrol car for more than a few minutes if the pressure from the dash on the knee was sufficient enough to cause arthritis. It was hard for him to say how much the 1995 incident contributed to Alberda's injury because Alberda did not have a meniscus tear and the description of the inside of the knee was one of arthritis, but he did not think it was a significant factor based on the appearance of the knees at the time of surgery.
After hearing oral argument and taking the matter under submission, the hearing officer issued a proposed recommended decision on April 3, 2010, in which he found that Alberda's permanent incapacity was not the result of injury or disease arising out of and in the course of his employment, and that his employment did not contribute substantially to his disability. The hearing officer noted that while both doctors agreed that all of the factors involved, both work and non-work related, contributed to Alberda's disability, they disagreed regarding the proportional assignment. The hearing officer found as follows: "Dr. Morgan who testified on behalf of [Alberda] comes across as being reasonable, fair, and objective in his analysis of the factors involved while Dr. Brooks communicates a very bias[ed], intolerant perspective in his testimony. The opinions of one or the other of these two experts must be accepted and it is concluded that even though Dr. Morgan displays a more reasonable perspective it is very difficult to conclude that the ten year old 1995 injury to [Alberda]'s right knee, from which he fully recovered, was the primary cause of his 2005 disability even though presumably aggravated by his 2003 assignment to a small vehicle. [Alberda] had a lot of degenerative problems and it is reluctantly concluded that it is those problems and not the 1995 trauma and the 2003 assignment that led to his 2005 incapacity. The preponderance of the evidence does not establish that [Alberda]'s employment contributed substantially to his permanent incapacity. The causal connection between the job and the disability must be real and measurable and substantial and such is not found to be the case herein." The hearing officer recommended Alberda's application for service-connected disability retirement be denied. On June 16, 2010, the Board adopted the hearing officer's findings of fact and recommendations.
Alberda filed a writ petition in superior court on August 24, 2010. The trial court heard the petition on July 12, 2011, and took the matter under submission. On September 26, 2011, it issued its statement of decision denying the petition. The trial court noted that the issue was whether there was "'substantial evidence of some connection between the disability and the job[,]'" and found that, "[i]n this case, substantial evidence supports the hearing officer's decision that [Alberda] was not entitled to service-connected disability retirement benefits." The court then listed the evidence it asserted showed "substantial evidence supported the 1995 injury to the right knee did not contribute substantially to [Alberda]'s incapacity." The court further found "substantial evidence supports that the 2003 assignment to a smaller squad car did not contribute substantially to [Alberda]'s incapacity[,]" and cited that evidence. The trial court noted that Drs. Morgan and Brooks disagreed on the cause of Alberda's disability, but substantial evidence supported the hearing officer's finding that it was Alberda's degenerative problems, and not the 1995 trauma and 2003 assignment, that led to his 2005 incapacity.
Alberda appealed the trial court's decision. In Alberda I, we determined that the trial court's written order demonstrated it did not review the Board's decision in the manner required under the independent judgment standard of review. Consequently, we reversed the order denying the petition for writ of mandate and remanded to the trial court with directions to reconsider the petition under the independent judgment standard of review. (Alberda I, supra, 214 Cal.App.4th at p. 436.)
On remand, the trial court set the matter for hearing without requesting further briefing. On January 15, 2014, the trial court took the matter under submission after hearing oral argument.
When first remanded, the case was assigned to the Honorable Debra J. Kazanjian, who issued the decision denying the petition. Alberda, however, moved for peremptory disqualification of Judge Kazanjian, who disqualified herself after accepting the peremptory challenge. Thereafter, the case was reassigned to the Honorable Carlos Cabrera.
On April 14, 2014, the trial court issued its written order granting the petition. The trial court recognized the sole issue before it was whether Alberda's disability was service connected. On this issue, the trial court determined the Board's findings were not substantially supported by the evidence. Recognizing that under the independent judgment standard of review it was entitled to reweigh the evidence and determine which medical opinion it found more persuasive, the trial court concluded that Dr. Morgan's testimony was more persuasive than Dr. Brooks' testimony. The trial court cited the hearing officer's findings quoted above, and agreed "with the hearing officer as to how the respective experts 'came across.'" The trial court reviewed Dr. Morgan's testimony, and found Dr. Brooks' testimony unfair, inconsistent and unduly minimizing of the physical nature of a deputy sheriff's duties.
Considering Dr. Morgan's testimony as a whole, and assessing his credibility, the trial court found Dr. Morgan to be the more reasonable, credible expert, and accepted his opinion. The trial court found: (1) there was no solid evidence of arthritic degeneration before 1995, as the basketball falls damaged the patella, not a weight-bearing joint, Alberda did well following the operative procedures of the 1980's, and the 1995 surgery showed massive trauma to the cartilage of the knee joint due to the 1995 injury, which in turn caused arthritis; and (2) it was the pressure placed on Alberda's knees from the too-small cruiser, combined with the degenerative changes set in motion by the 1995 injury and activities of a deputy sheriff, that substantially contributed to Alberda's permanent disability. Accordingly, the trial court ordered that a writ of mandate be issued to the Board commanding it to grant Alberda's application for a service connected disability retirement benefit.
DISCUSSION
Standard of Review
We explained the applicable standard of review in Alberda I as follows:
"Where, as here, a trial court reviews a final administrative decision that substantially impacts a fundamental vested right, the trial court both examines the administrative record for errors of law and exercises its independent judgment upon the evidence. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 816, fn. 8 (Fukuda); Bixby v. Pierno (1971) 4 Cal.3d 130, 143 (Bixby); Levingston v. Retirement Board (1995) 38 Cal.App.4th 996, 1000 (Levingston).) In carrying out this independent review, however, the trial court must afford the agency's decision a strong presumption of correctness and must impose upon the petitioner the burden of showing that the agency's findings are contrary to the weight of the evidence, i.e. the decision was not supported by the preponderance of the evidence. (Fukuda, supra, 20 Cal.4th at p. 808, 817, 819-822; Breslin v. City and County of San Francisco (2007) 146 Cal.App.4th 1064, 1077 (Breslin).) An abuse of discretion is established if the trial court determines that the findings are not supported by the weight of the evidence. (Fukuda, supra, at p. 811.)
"'Because the trial court ultimately must exercise its own independent judgment, that court is free to substitute its own findings after first giving due respect to the agency's findings.' (Fukuda, supra, 20 Cal.4th at p. 818; Barber v. Long Beach Civil Service Com. (1996) 45 Cal.App.4th 652, 658 (Barber); Levingston, supra, 38 Cal.App.4th at p. 1000.) Thus, while the trial court begins its review with a presumption of the correctness of the administrative findings, the presumption is rebuttable and may be overcome by the evidence. (Breslin, supra, 146 Cal.App.4th at p. 1077.) 'When applying the independent judgment test, the trial court may reweigh the evidence and substitute its own findings for those of the [agency], after first giving due respect to the [agency]'s findings.' (Ibid.) This includes examining the credibility of witnesses. (Barber, supra, 45 Cal.App.4th at p. 658 ['[A]n exercise of independent judgment does permit (indeed, it requires) the trial court to reweigh the [administrative hearing] evidence by examining the credibility of witnesses.']; see also Levingston, supra, 38 Cal.App.4th at p. 1000 [trial court independently reviews the administrative record and may reweigh the evidence].)
"Our task is to determine whether substantial evidence in the administrative record supports the trial court's ruling (Bixby, supra, 4 Cal.3d at p. 143, fn. 10), except when the appellate issue is a pure question of law. The question presented in this case—whether the trial court applied the correct standard of review—is a question of law. We review questions of law de novo. (Bostean v. Los Angeles Unified School Dist. (1998) 63 Cal.App.4th 95, 107-108.) If the trial court did not apply the correct standard of review, we have no choice but to reverse and remand to allow the trial court to reconsider the case in light of the correct standard. (Barber, supra, 45 Cal.App.4th at p. 660.)" (Alberda I, supra, 214 Cal.App.4th at pp. 433-434.)
In this case, the Board had to determine, by a preponderance of the evidence, whether there was substantial evidence of a real and measurable connection between Alberda's disability and his employment. (Bowen v. Board of Retirement (1986) 42 Cal.3d 572, 578-579 (Bowen); Glover v. Board of Retirement (1989) 214 Cal.App.3d 1327, 1336-1337 (Glover).) The Board, by adopting the hearing officer's findings, found there was no real and measurable connection between Alberda's disability and employment. In the trial court, Alberda had the burden of proving the Board's decision was not supported by the weight of the evidence, i.e. the preponderance of the evidence. The trial court's duty in carrying out its independent review was to weigh the evidence and exercise its independent judgment on the facts, subject to the strong presumption of correctness of the Board's findings. (Breslin, supra, 146 Cal.App.4th at p. 1077.) This means the trial court had to consider all the evidence and decide whether Alberda's presentation in the trial court sustained his burden of showing that the weight of the evidence presented by both sides in the administrative hearing was contrary to the Board's finding.
The Board acknowledges the trial court recognized it was required to apply the independent judgment standard of review and that it recited the proper standard quoted above. The Board, however, points to other language the trial court used in determining its findings are contrary to the weight of the evidence. Specifically, it asserts the trial court's ruling shows that it failed to apply the requisite strong presumption of correctness when it: (1) began its analysis by quoting the hearing officer's observations of the two experts and then stated it "agree[d] with the hearing officer how the experts 'came across,'" and (2) adopted the hearing officer's observations of the experts, but rejected the hearing officer's finding that Dr. Morgan's opinion was not supported by the evidence.
Citing Fukuda, supra, 20 Cal.4th 805, the Board contends those statements show the trial court failed to presume the correctness of the Board's findings. In Fukuda, in considering a terminated police officer's petition for writ of administrative mandate, the superior court stated the defendant city "'has the burden of proof to produce a preponderance of evidence in support of the findings.'" (Id. at p. 810, fn. omitted.) The Court of Appeal affirmed, concluding that no presumption of correctness applied to the agency's findings. (Id. at 817.) Our Supreme Court reversed, holding the trial court must afford administrative findings a "strong presumption of correctness," and the party contesting the findings "bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence." (Ibid.)
Fukuda is distinguishable because in that case the trial court expressly placed the burden of proof on the defendant, while in the present case the trial court acknowledged Alberda carried the burden of proof and the Board's findings were presumed correct. In our view, by beginning with the hearing officer's findings, the trial court implicitly began with the presumption those findings were correct. It then determined that this presumption was rebutted by the evidence, which led it to conclude the weight of the evidence favored Alberda. The trial court did so by summarizing Dr. Morgan's testimony and explaining the problems with Dr. Brooks' testimony. It then accepted Dr. Morgan's testimony after finding him to be the more reasonable, credible expert.
The Board's argument essentially is that the trial court's disagreement with the hearing officer's conclusion established, a fortiori, that the trial court did not start with the prescribed presumption. If the trial court's disagreement with the Board's credibility determinations were sufficient to show a failure to accord the proper deference to the Board's decision, however, independent review would be but an illusion.
At worst, the trial court's decision is ambiguous regarding the standard it applied, which ambiguity is fatal to the Board's claim on appeal. "[A] judgment is presumed correct, all intendments and presumptions are indulged in its favor, and ambiguities are resolved in favor of affirmance." (Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749, 765-766, citing Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 631.) Furthermore, "[i]t is a basic presumption indulged in by reviewing courts that the trial court is presumed to have known and applied the correct statutory and case law in the exercise of its official duties." (People v. Mack (1986) 178 Cal.App.3d 1026, 1032; accord, People v. Coddington (2000) 23 Cal.4th 529, 644, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) Accordingly, we presume the trial court accorded the Board's findings a presumption of correctness and imposed the burden on Alberda to prove the weight of the evidence did not support those findings.
Substantial Evidence
The Board contends that, even if the trial court followed the independent judgment standard of review, its findings are not supported by substantial evidence.
As we have already stated, while the trial court is required to independently review the evidence, the standard of review on appeal from the trial court's determination is the substantial evidence test. (Fukuda, supra, 20 Cal.4th at p. 824; Glover, supra, 214 Cal.App.3d at p. 1337 [test applied to disability case].) That is, we must "sustain the trial court's findings if they are supported by substantial evidence." (Governing Board v. Haar (1994) 28 Cal.App.4th 369, 378.) Substantial evidence is "relevant evidence that a reasonable mind might accept as adequate support for a conclusion" (Taylor Bus Service, Inc. v. San Diego Bd. of Education (1987) 195 Cal.App.3d 1331, 1340-1341), or of "'"ponderable legal significance ... reasonable in nature, credible, and of solid value."'" (Ofsevit v. Trustees of Cal. State University & Colleges (1978) 21 Cal.3d 763, 773, fn. 9.)
However, "'[a] decision supported by a mere scintilla of evidence need not be affirmed on review.' [Citation.] '[I]f the word "substantial" [is to mean] anything at all, it clearly implies that such evidence must be of ponderable legal significance. Obviously the word cannot be deemed synonymous with "any" evidence. It must be reasonable ..., credible, and of solid value....' [Citation.] ... While substantial evidence may consist of inferences, such inferences must be 'a product of logic and reason' and 'must rest on the evidence' [citation]; inferences that are the result of mere speculation or conjecture cannot support a finding." (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633.)
In order to qualify for a service-connected disability, it is not necessary for a county employee to show that his or her employment was the sole, or even the primary, cause of the disability. Instead, the employee need only establish that his or her incapacity arose out of and in the course of employment, and the employment "contribute[d] substantially to such incapacity." (Gov. Code, § 31720, subd. (a).) This "substantial contribution" test has been construed to mean that "'while the causal connection between the [employment] 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.'" (Bowen, supra, 42 Cal.3d at p. 578; see also Glover, supra, 214 Cal.App.3d at pp. 1336-1337.)
A service connection may be found if the claimant's employment aggravated or accelerated a pre-existing condition. (Kuntz v. Kern County Employees' Retirement Assn. (1976) 64 Cal.App.3d 414, 421.) The claimant need not have suffered a traumatic injury, or been exposed to stresses beyond what normally would have occurred on the job. (Ibid.) A service connected disability will be found if the employee's condition subjects him or her to disability to which a healthier person would be relatively immune. (Peter Kiewit Sons v. Industrial Acc. Comm. (1965) 234 Cal.App.2d 831, 837.)
Here, there was substantial evidence of a causal connection between Alberda's disability and his employment as a deputy sheriff. According to Dr. Morgan, a number of factors caused Alberda's knee problems: his 1995 on-the-job injury, after which he continued to work; the pressure from the patrol vehicle's instrument panel; aging; and general living and working. Even if the left knee was asymptomatic, Alberda would not be able to function as a deputy sheriff based on his right knee problem. Dr. Morgan believed the 1995 injury was a significant one that led to the continuing breakdown of the right knee and was attributable for 70 percent of Alberda's right knee condition. Although Alberda's age and size were factors, and Alberda may have had a genetic predisposition to arthritis, Dr. Morgan opined Alberda's degenerative disease problems were advanced over what one would expect.
Dr. Morgan testified that before Alberda's employment as a deputy sheriff, he had no known pre-existing significant disease in the left knee, no known obviously significant advancing, degenerative disease in the right knee, and no significant symptoms or knee impairment. Dr. Morgan did not believe the injuries in the 1980's caused Alberda's later knee problems because people in that age group heal well and there was no history of impairment before 1995. In Dr. Morgan's opinion, the 1980's injuries were rather minor in an otherwise healthy male, and he doubted they had any substantive influence on the later problems, particularly in comparison to the 1995 injury. Dr. Morgan presumed that Alberda underwent a history and physical exam before his employment with the sheriff's department, and assumed there were no significant findings or complaints of the knee at that time, which means he was clinically well when he began work.
Dr. Morgan did not think Alberda necessarily was suffering from degenerative disease when Dr. Ghazal treated Alberda in 1995, nothing the arthroscopy showed "stuff" in the right knee that apparently was of recent trauma which required "extensive debriding." Dr. Morgan believed Alberda's knees were fine before the 1995 injury and explained that degenerative joint disease usually is not disabling in itself; it requires injury to the joint to become a problem. It is unusual for degenerative joint disease to become disabling through mechanical wearing for someone in their 40s or 50s, unless they have a "nasty arthritic process" like rheumatoid disease or lupus.
Based on this evidence, the trial court reasonably could find that Alberda's duties as a deputy sheriff caused his right knee problems. Alberda did not have any symptoms of degenerative joint disease before 1995. While arthritis may have been present in 1995, it became a problem only after the 1995 work-related injury. Thereafter, Alberda continued to work as a deputy sheriff and was asymptomatic until 2003, when Alberda was placed in a "squishy" squad car, which caused direct pressure on his right knee to the extent he formed a callus. This pressure, combined with the degenerative changes that the 1995 injury set in motion and the activities of being a deputy sheriff, substantially contributed to Alberda's disability.
The Board contends the trial court erred in finding there was "no solid evidence of arthritic degeneration prior to 1995," as the undisputed evidence demonstrated significant degenerative arthritis prior to the 1995 work-related injury. In support, the Board points to Dr. Ghazal's surgical report which documented significant degenerative changes in the weight-bearing part of the knee, and Dr. Morgan's report in which he noted that Dr. Ghazal's and Dr. Castonguay's operative records "indicate advanced degenerative joint disease in the right knee of impressive significance, as well as moderately advanced degenerative joint disease in the left knee."
We agree that Dr. Morgan did not opine that there was no evidence of degenerative joint disease in 1995. Dr. Morgan, however, also testified that a person can have degenerative joint disease and not experience symptoms, and the disease becomes a problem when the person is injured. Thus, while Alberda may have had advanced degenerative joint disease in 1995, it only became a problem due to the 1995 work-related injury. While that injury healed, it set into motion a degenerative process that led, through Alberda's continued work as a deputy sheriff and the pressure of the too-small patrol car, to permanent disability.
The Board asserts Dr. Morgan's opinions are not valid because he only considered what Alberda told him, citing the principle that a medical opinion based on a misunderstanding of the relevant facts or an inadequate medical history does not constitute substantial evidence. (Rosas v. Workers' Comp. Appeals Bd. (1993) 16 Cal.App.4th 1692, 1702.) But the testimony the Board cites to does not support this assertion. The Board first cites to where the Board's attorney asked Dr. Morgan what he was basing his opinion on regarding the extent of the 1980's injuries. Since there were no operative reports of the 1980's injuries, Dr. Morgan naturally relied on the history of those injuries given by Alberda. While Dr. Morgan testified he probably reviewed the history of the injury Alberda gave to Dr. Ghazal, he could not recall if he did and was willing to discuss anything to which the attorney wanted to refer him.
The Board also points to Dr. Morgan's explanation in response to its attorney's question whether Dr. Ghazal saw significant degenerative disease in 1995. In response, Dr. Morgan explained that (1) when a surgeon sees a patient with a previous history and some elements of degenerative disease, he will naturally explain to the patient that he has an underlying condition that may eventually require a significant surgical procedure; (2) looking at the findings on the arthroscopy, one finds the "stuff" in the knee apparently was of recent trauma that required extensive debriding; and (3) while he saw the attorney's point, Alberda's history to him was that "he was fine until this thing happened."
We do not read this testimony as saying that Dr. Morgan considered only what Alberda told him in determining whether Alberda had significant degenerative disease in 1995; instead, the testimony indicates that if Alberda did have such disease, it was not causing him problems in 1995. Moreover, the record shows that Dr. Morgan did note the degenerative disease Dr. Ghazal found in 1995, and nevertheless opined that the disability in Alberda's right knee was "related to the initial substantial injury and impressive findings at surgical intervention of 1995, cumulative patellofemoral compression phenomena of approximately one year and ten months between 2003 and 2005, and the various other duties of law enforcement required."
The Board asserts the trial court was required to give considerable weight to the findings of experienced administrative bodies, "'especially in cases involving technical and scientific evidence,'" citing Fukuda, supra, 20 Cal.4th at p. 812. The Board argues no such weight was given here and instead the trial court failed to properly distill the medical evidence and read conclusions into Dr. Morgan's testimony that the record does not support. The Board points out that if Dr. Morgan's actual opinion was that there was no degenerative arthritis in Alberda's knee until 1995 he would have said so, but he did not, and therefore the trial court had no factual basis to conclude Alberda did not have arthritis in his right knee in 1995. This argument fails because, as we have explained, even if Alberda had arthritis in his right knee in 1995, his being asymptomatic before then indicates that he did not experience right knee problems until his on-the-job injury in 1995, which through Alberda's continued work as a deputy sheriff, led to his disability.
The Board also contends there is no evidence that Alberda's employment caused his disability, as there is no evidence of job activity that resulted in wear and tear on either knee such that, in the absence of this activity, Alberda would not have developed arthritis. The Board, however, points only to the evidence in support of its position that Alberda had degenerative joint disease that pre-existed his employment as a deputy sheriff and which progressed to the point of disability without regard to his duties.
Dr. Morgan, however, testified the 1995 on-the-job knee injury was a "very significant injury" that resulted in the continuing breakdown of the right knee. Although Alberda was asymptomatic for a number of years after he recovered from the 1995 surgery, Dr. Morgan opined his continuing duties as a deputy sheriff, along with accumulated years of living and compression against the frontal aspect of the knee of the too-small patrol car, contributed to his ultimate disability. He estimated Alberda's right knee condition was 70 percent attributable to the 1995 injury. This evidence supports the trial court's finding of a real and measurable causal connection between Alberda's employment as a deputy sheriff and the disability.
The Board also challenges the trial court's finding that the arthritis in the left knee developed through compensation for the right knee injury, as no evidence was presented that Alberda actually spent any time compensating because of the condition of his right knee. Even if the Board is correct that this finding is unsupported by the evidence, however, the trial court's finding of a service connected disability is supported by the evidence that there was a real and measurable connection between the disability in Alberda's right knee, which Dr. Morgan opined was sufficient in itself to establish Alberda's inability to work, and his employment as a deputy sheriff.
Alberda asks us to award his attorney fees and costs incurred as a result of this appeal, citing Government Code section 31536, which provides in relevant part: "If a superior court reverses the denial by the board of an application for a retirement allowance . . . , the superior court in its discretion may award reasonable attorney's fees as costs to the member . . . who successfully appealed the denial of such application. . . ." He asserts because the trial court awarded such fees and costs to him below, we should award them on appeal. The Board does not make any argument with respect to this request, which we grant. (County of Marin Assn. of Firefighters v. Marin County Employees Retirement Assn. (1994) 30 Cal.App.4th 1638, 1655 (County of Marin), citing to Morcos v. Board of Retirement (1990) 51 Cal.3d 924, 926-930.) Accordingly, we remand to the trial court to determine the amount of fees to which Alberda is entitled. (County of Marin, supra, 30 Cal.App.4th at p. 1655; Hadley v. Krepel (1985) 167 Cal.App.3d 677, 687.)
DISPOSITION
The judgment is affirmed. The matter is remanded to the trial court for determination of the amount attorney fees to which Alberda is entitled for this appeal. Alberda is awarded his costs on appeal.
/s/_________
Gomes, J.
WE CONCUR /s/_________
Cornell, Acting P.J.
/s/_________
Franson, J.