Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 30-2008-00108320, Steven L. Perk, Judge.
Law Offices of Martin Taller and Martin Taller for Plaintiff and Appellant.
David H. Lantzer for Defendant and Respondent.
OPINION
FYBEL, J.
Introduction
The Orange County Employees Retirement System (OCERS) adopted a referee’s recommendation made following an administrative hearing and denied the application of Janet R. Halverson for service connected and nonservice connected disability retirement. Halverson filed a petition for peremptory administrative writ of mandate in the trial court to overturn that decision and order OCERS to grant her application. She appeals from the judgment denying her petition. We affirm.
Facts
I.
Halverson Suffers Injuries from Work-related Automobile Accidents in 1999 and 2000.
Halverson began working for the County of Orange in September 1980. Her last position, commencing in June 1986, was deputy public administrator/public guardian II. She worked five days per week, and her duties included completing forms for every contact with a conservatee and visiting each conservatee twice per year. Her worktime was divided 40 percent to traveling and 60 percent to office work. She did most of her office work on computer, but some forms had to be completed by hand and could take up to half a workday to complete. She frequently had to lift client files, which could weigh up to five pounds.
On March 29, 1999, Halverson suffered the first of two work related car accidents as she was driving home from a conservatorship investigation. She drove into the side of a car that had run a red light and suffered injuries to her upper back and neck, cuts and bruises to her knees and legs, and burns to her arms. She was seen the next day at the East Edinger Medical Center by Dr. Randy Jones, who diagnosed cervical strain, spine contusion, and arm and knee contusions and abrasion, and recommended Halverson return to modified work of four hours per day and physical therapy. In June 1999, Dr. Jones recommended Halverson return to work full time with continued physical therapy, and his progress report noted the pain in Halverson’s cervical spine was “much better” and “head turn is now easy without pain.” She testified, however, her neck and upper back pain never resolved and worsened when she was under pressure.
Halverson had difficulty keeping up with her workload due to the pain she was suffering and as a result became increasingly anxious and depressed. In 2000, her primary care physician prescribed an antidepressant medication and recommended she take a week off when beginning the medication. Halverson took a week off in May 2000.
On May 30, 2000, her first day back to work, Halverson was involved in the second automobile collision. While on work related business, she had stopped her car in traffic, and another car “going pretty fast” hit her car in the rear. The collision aggravated her upper back and neck injuries from her first accident.
In early June 2000, Dr. Jones again treated Halverson and reported she had pain on full range of motion in the cervical and thoracic spine and tenderness on her back and neck muscles. He prescribed pain medication, muscle relaxants, and physical therapy.
After the second accident, Halverson returned to work. Two days later, her psychiatrist advised her to stop working. Halverson had informed her psychiatrist she was “extremely anxious and depressed” because, due to her injuries and pain, her caseload was getting “out of control, ” she was “so far behind, ” and she “was just stressed out and overwhelmed.” She began having more headaches, started experiencing tingling in her right hand after writing for an extended period of time, and felt she could not work because of the physical demands of her job, such as driving, sitting at the computer, and writing.
At her psychiatrist’s recommendation, Halverson took time off from work starting in June 2000. She returned to work in March 2002.
II.
Examination and Treatment by Workers’ Compensation Physicians Rick Pospisil, David Kim, and Christopher H. Fleming
On July 26, 2000, Rick Pospisil, M.D., evaluated Halverson for her injuries from her second car accident in the capacity of her workers’ compensation designated primary treating physician. Dr. Pospisil diagnosed Halverson with (1) acute cervical and thoracic strain of moderate severity, with a possible torn disc and (2) depression. He prescribed nonsteroidal anti inflammatory medication, muscle relaxants, physical therapy, and continued treatment with her current psychologist. Dr. Pospisil believed Halverson might be a candidate for cervical epidural injections and facet blocks, depending on the results of her MRI. Dr. Pospisil concluded Halverson’s injuries were a direct result of her second car accident and described her disability status as “temporarily totally disabled for the next two to three months.”
An MRI of Halverson’s cervical spine, conducted in August 2000, revealed “a 4 to 5 mm right lateral recess disc protrusion... causing mild to moderate right lateral recess narrowing” on “C4 5.”
In September 2000, Dr. Pospisil referred Halverson to Gregory B. Kirkorowicz, M.D., for an electromyography, which was conducted in September 2000. The electromyography returned abnormal results consistent with a right C5 or C6 nerve root irritation affecting the paraspinal muscles. A second electromyography conducted in July 2002 returned normal results.
On September 7, 2000, David Kim, M.D., examined Halverson in his capacity as a qualified medical evaluator for her workers’ compensation claim. Dr. Kim diagnosed Halverson as having (1) cephalgia; (2) a 4- to 5 millimeter disc protrusion at C4 5; (3) chronic strain, cervical spine, musculoligamentous; and (4) suffered chronic strain, thoracolumbar spine, musculoligamentous. Dr. Kim described Halverson as “temporarily totally disabled” (capitalization omitted) and attributed her injuries to the two work related car accidents.
In October 2000, Halverson was evaluated by Eduardo Anguizola, M.D., for pain management. Dr. Anguizola diagnosed her as having (1) symptomatic cervical disc herniation at C4 5, (2) right upper extremity radiculopathy, and (3) anxiety and depression syndrome. He concluded Halverson was “a good candidate for a series of cervical epidural steroidal injections” and believed she might benefit from facet injections “if not enough is accomplished with the cervical epidurals.” Dr. Anguizola’s report stated, “[t]he patient was informed of the pros and cons of the procedure.”
Halverson again saw Dr. Pospisil on October 31, 2000. She stated she was “extremely anxious” about undergoing the cervical epidural injections, felt depressed, and continued to have moderate to severe pain in the neck, occasionally radiating to both arms. Dr. Pospisil recommended that she have the cervical epidural injections. When Dr. Pospisil saw Halverson on December 5, 2000, she stated she did not want cervical epidurals because she was “leery about receiving injections.”
Dr. Pospisil continued to believe Halverson could not perform her job duties and prescribed medication and a home exercise program. After reevaluating her on February 7, 2001, he concluded her condition “was essentially unchanged” and recommended she resume physical therapy.
Christopher H. Fleming, M.D., conducted a defense qualified medical examination of Halverson on February 8, 2001 for her workers’ compensation claim. Dr. Fleming opined that her lower back injury and stress problems were nonindustrial and concluded she had “a disability precluding repetitive neck motion or prolonged maintenance of the neck in one position, ” should avoid repetitive use of the upper extremities at or above shoulder level, and should avoid “heavy lifting, pushing, pulling or other heavy tasks.” He did not recommend cervical epidural blocks or nerve root injections because Halverson’s condition was “not that bad, ” and his report stated, “[t]he patient notes that she has not yet had any cervical epidurals, but is considering them.” Dr. Fleming reported that Halverson was not a qualified injured worker, considered her to be “permanent and stationary” as of October 5, 2000, and believed she had no orthopaedic impediments to returning to work on that date.
On April 30, 2001, Dr. Kim reviewed Dr. Fleming’s records and disagreed with Dr. Fleming’s conclusion that Halverson was “permanent and stationary” as of October 5, 2000. Dr. Kim concluded that Halverson’s injuries “resulted in more disability of an orthopedic nature than that indicated by Dr. Fleming” and believed his own opinion aligned more closely to that of Dr. Pospisil. Dr. Kim described Halverson’s condition to be “permanent and stationary” on August 28, 2001 and considered her to be a “qualified injured worker” with restrictions to do light work only. (Boldface and capitalization omitted.)
On April 25, 2001, Dr. Pospisil again evaluated Halverson. He reviewed a recent MRI of Halverson’s cervical spine, noted a 4- to 5 millimeter right lateral disc protrusion at C4 5, and recommended a series of cervical epidurals. His report stated: “As a result of this injury, [Halverson] has restriction to light work. This contemplates that she can do work in a standing or walking position with minimum demands for physical effort.” Dr. Pospisil stated that Halverson should not be required to sit “more than occasionally, ” should not carry or lift objects weighing more than 15 pounds, should be permitted to change positions at least every 30 minutes, and should not drive more than two hours per day. He described Halverson as a “Qualified Injured Worker” and her disability status as “permanent and stationary.”
When Dr. Kim evaluated Halverson again on August 28, 2001, she told him she continued to experience constant neck pain that varied in degree of severity and radiated into her upper back and intermittent numbness in her “upper back and trapezial area” and “[o]ccasionally her arms will feel stiff.” She complained of intermittent pain in her low back and pelvic region that increased with lifting and sudden movement. Dr. Kim reported that he had compared Dr. Pospisil’s report and Dr. Fleming’s report and found Dr. Pospisil’s opinion “much closer” to his own than Dr. Fleming’s opinions. Dr. Kim’s report explained: “This is based on the actual physical findings today as well as a careful review of both accidents and the reports submitted by Dr. Randy Jones, documenting his findings and the treatment rendered immediately following both accidents. This represents two major traumatic incidents to Ms. Halverson’s neck and upper/mid back that has resulted in more disability of an orthopedic nature than that indicated by Dr. Fleming.” Dr. Kim described Halverson’s condition to be “permanent and stationary” as of August 28, 2001 and considered her to be a “qualified injured worker” with restrictions to do light work only. (Boldface and capitalization omitted.)
III.
Halverson Returns to Work with Modifications, Continues to Suffer Pain, and Is Injured Again.
Halverson returned to work in March 2002 and stopped receiving workers’ compensation benefits. A County of Orange health care agency/employee health services work status notice from September 2001 stated that Halverson could return to work with these restrictions: lifting no more than 15 pounds; light work only; “limit positioning [of] the neck to 30 minutes at a time” and “change position for 10 minutes”; no more than two hours of driving in an eight hour shift; no repetitive neck motion; no repetitive use of upper extremities at or above shoulder level; no heavy use of arms for “pulling, pushing or other heavy tasks”; and no constant sitting. These restrictions reflected several work modifications recommended by Dr. Pospisil in his April 25, 2001 report.
Although Halverson had planned on returning to work halftime, she was told she had to work at least six hours per day for the first two weeks and eight hours per day thereafter. Between March and July 2002, her caseload was reduced from 85 cases to 10 or 12 cases. She continued suffering back and neck pain, which distracted her and made it difficult for her to accomplish tasks. Her belief that her supervisors and coworkers did not want her to return to work also had a “big effect” on her mentally.
On May 1, 2002, Dr. Pospisil reevaluated Halverson and noted she had returned to work but “[a]s she has been working, she has been developing increasing symptomatology with pain in her neck, radiating to the left upper extremity of equal severity.... She feels some of the symptoms are the same as when she was originally taken out of work in 2000.” Dr. Pospisil also noted that Halverson had increased inflammation from her herniated disc at the C4 5 level, “in spite of the fact that it appears that her employer is adhering to the work restrictions.” Dr. Pospisil recommended that Halverson continue taking pain medication, seeing a physical therapist, and working with restrictions.
In June 2002, Halverson moved quickly to get out of the way of a file cabinet that fell toward her, and in doing so suffered a painful injury to her back. On June 19, 2002, she was examined by Michael Le, M.D., who diagnosed Halverson with cervical and upper back strain, reported she could return to work with restrictions, and prescribed physical therapy. In followup examinations, Dr. Le recommended the same work restrictions. Physical therapist JoAnna Baum examined Halverson on June 27, 2002, reported her stability was improving and her condition “result[ed] in a decreased ability to sit, type, lift for job, ” and described her prognosis as “[f]air... due to underlying cervical pathology.”
On June 26, 2002, Dr. Pospisil examined Halverson and noted she had returned to work but had elected to take sick days because “she was too sore to work.” His report stated: “She primarily has pain in her neck and upper back, which radiates into both arms, left now worse than right, which is different from the way it was previously, which was right more than left.” He diagnosed Halverson as having “[c]ervicothoracic strain, on top of the previously herniated disc at C4 5, with radiculopathy, ” recommended she continue taking medication and undergoing physical therapy, and concluded she could “[c]ontinue to function at work with restrictions.” Dr. Pospisil’s report stated that Halverson should not be required to sit “more than occasionally, ” should be permitted to change positions every 25 to 30 minutes “for a minimum of 10 minutes, ” and should not drive more than two hours per day.
When Dr. Pospisil examined Halverson again on July 24, 2002, he noted: “Ms. Halverson continues to do poorly, being unable to continue to work. She eventually stopped working about three weeks ago. She indicates that she is having difficulty with thinking and significant pain in her neck, radiating to the left upper extremity, with numbness and tingling.” His diagnosis remained the same as in the previous report, and he described Halverson’s disability status as “temporarily totally disabled.”
Dr. Pospisil examined Halverson next on August 21, 2002. His report noted that she underwent another electromyography in July 2002 which “was interpreted as being within normal limits, ” but that an “MRI of the cervical spine was performed at Sina Imaging on August 2, 2002, and it revealed 1.5 mm concentric disc bulges at multilevels, including C3 4, C4 5, C5 6 and C6 7, with severe right foraminal stenosis at C4 5 level.” His diagnosis was “[c]hronic cervical sprain/strain with an exacerbation of her symptoms from her prior injury.” He concluded Halverson remained “temporarily totally disabled, ” and he anticipated “a permanent impairment rating in two to three months.”
Halverson’s performance evaluations from 1988 to 1998 were positive and reported no work performance deficiencies. In 1999, Halverson’s performance evaluation reported her tardiness had been an ongoing problem since the prior year and was “amplified during [her] recent illness, ” rated her performance as “standard, ” and acknowledged she was still catching up with work from her absence due to the first accident. In July 2002, Halverson’s supervisor gave Halverson a written reprimand based on deterioration in the quality of her work and her unexcused absences. On July 30, 2002, the human resources manager sent Halverson a notice of intent to implement automatic resignation because of her absences. The notice reported repeated attempts to contact Halverson, with the last contact on July 11, 2002, and her absence from work since July 1, 2002.
IV.
Halverson Retires and Is Examined by OCERS-Appointed Physician Stanley G. Katz.
Halverson retired in August 2002 at age 50. She filed an application for service connected and nonservice connected disability retirement in January 2003. The application alleged Halverson was unable to perform the duties of her job as a result of injuries sustained in the automobile collisions in March 1999 and May 2000.
OCERS appointed Stanley G. Katz, M.D., to conduct an independent medical examination of Halverson for her disability retirement application pursuant to Government Code section 31729. Dr. Katz reviewed Halverson’s extensive medical history and examined her on July 31, 2003. Dr. Katz diagnosed Halverson as having chronic cervical spine strain with cervical disc herniation and determined that the “most likely date of the injury would be following the 2000 motor vehicle accident.” For medical treatment, Dr. Katz concluded: “The patient is a candidate for ongoing treatment with pain medication and/or nonsteroidal anti inflammatory medication. She is not a surgical candidate as she does not have sufficient objective findings to justify surgical treatment. If she has flare ups or aggravations of her conditions, physical therapy and/or chiropractic treatment might be beneficial.”
Government Code section 31729 states: “The board may require any disability beneficiary under age 55 to undergo medical examination. The examination shall be made by a physician or surgeon appointed by the board at the place of residence of the beneficiary or other place mutually agreed upon. Upon the basis of the examination the board shall determine whether the disability beneficiary is still physically or mentally incapacitated for service in the office or department of the county or district where he was employed and in the position held by him when retired for disability.”
Based on the MRI findings and Halverson’s “history over the past four years, ” Dr. Katz agreed with the work restrictions implemented by the County of Orange and concluded: “The patient’s condition is not likely to progress, although it is subject to occasional flare ups and aggravations. Just such an aggravation occurred in 2002 prior to her retirement. As noted above, these aggravations can be treated appropriately with medication and either chiropractic treatment or physical therapy. [¶] Had the patient not retired at age 50, she could still be doing her work duties full time without modifications beyond those that were already present when she returned to work in March of 2001. The patient’s spine injuries are not of sufficient magnitude to preclude her from doing most of her usual and customary work duties.”
This date appears to be a typographical error. Halverson returned to work in March 2002, not 2001.
V.
OCERS’s Denial of Halverson’s Application for Disability Retirement
The OCERS retirement board denied Halverson’s application for service connected and nonservice connected disability retirement in November 2003. She appealed that decision and requested a hearing before a referee.
A letter dated May 23, 2005 from OCERS to Halverson’s counsel stated: “[A]fter a hearing was granted on your client’s hearing request, you and your client referred to and relied on non orthopedic matters including psychiatric and/or psychological issues. [¶] Your continuing submission of such non-orthopedic matters means that the August 23, 2005 hearing shall not go forward, the hearing process ‘shall be suspended[, ’] and the entire matter is referred back to the [OCERS] Board of Retirement as an ‘amended application[.’]” In November 2005, the OCERS Board of Retirement denied Halverson’s amended application. Halverson appealed from the decision, requested a hearing, and noted the claim based on orthopaedic impairment and the claim based on mental impairment should be consolidated.
VI.
Halverson Is Examined and Treated by Mental Health Professionals, Including OCERS appointed Psychologist David D. Fox.
Halverson complained of depression when she saw Dorothy Savarirayan, M.D., in June and July 2000. Dr. Savarirayan found Halverson to be anxious and depressed, prescribed Paxil, and placed Halverson on disability for one month. In July 2000, Halverson reported she was not taking her medication regularly. As of October 2000, she had been undergoing psychotherapy for severe depression with Mary Jo Garnett, M.S. and L.M.F.T.
In a mental health questionnaire dated April 2002, Halverson described her main problems as “coping, addressing anxiety/depression” and work related problems. She stated her anxiety and depression started in 1988 when her mother had a stroke. When seen a few days after preparing the questionnaire, Halverson stated she stopped taking Paxil because it “didn’t seem to help, ” and was not taking her prescribed medication when she was discharged from workers’ compensation therapy on July 21, 2004.
Halverson participated in a behavioral health intensive outpatient program from April 24 to May 7, 2002. A daily group note dated April 26, 2002 reported she was feeling extremely overwhelmed and unproductive. Another daily group note dated May 7, 2002 reported she feared returning to work and felt very helpless. A discharge and continuing care plan dated May 10, 2002 noted Halverson attended seven of 10 sessions, was able to set goals, and spoke somewhat positively about her future, but was anxious about returning to work.
Anthony Francisco, Ph.D., examined Halverson on December 10, 2003 for an initial pain management psychological evaluation. He conducted a number of physical and psychological tests and diagnosed Halverson with “Depressive Disorder Not Otherwise Specified, Secondary to an Industrially Related Injury” and “Psychological Factors Affecting Physical Conditions.” His report stated: “Psychological assessment indicates that the patient is suffering moderate psychological distress. The above symptoms are a direct result of the events that took place during the course of her employment and are consistent with the clinical findings. As a direct result of the trauma she sustained, symptoms affect judg[]ment and daily functioning.” In his report, under prognosis, he stated: “Prognosis is very guarded despite ongoing psychotherapy. This patient may never regain her previous level of functioning. Although, she affirms her aspirations are to go back to her previous work.” Dr. Francisco described Halverson’s disability status as “consistent with slightly impaired” (boldface omitted) and recommended continued psychotherapeutic treatment.
On January 16, 2004, marriage and family therapist Robert Bowan examined Halverson and recommended she continue supportive psychotherapy and medication. Bowan reported an improved mood when Halverson took medication consistently, but, as of May 2004, Halverson was not consistently taking her medication.
Psychiatrist Joel Frank, M.D., examined Halverson on September 23, 2004 at the request of the Workers’ Compensation Appeals Board for an initial psychiatric evaluation. Dr. Frank diagnosed her with “Major Depressive Disorder” and “Depressive Disorder Not Otherwise Specified, ” and attributed most of her permanent psychiatric disability to her orthopaedic disability. His report stated, “[i]t is medically probable that psychiatric findings would preclude her from performing her usual and customary duties of Deputy Public Guardian.” Dr. Frank did not recommend medication because Halverson had not been taking previously prescribed medication on a regular basis. He also concluded: “It is medically probable that further psychotropic medication management or psychotherapy will not alter the degree of permanent psychiatric disability. No further psychotherapy is necessary to cure or relieve from the psychiatric injury. Her psychiatric condition is stable.”
Psychologist R. Wayne Brown, Ph.D., examined Halverson on April 28, 2005 and May 17, 2005 for a qualified medical evaluation for the Workers’ Compensation Appeals Board. For OCERS, he prepared a physician’s statement of disability in which his objective findings were: “Teary 4 times during interview. Motor behavior decreased; speech tense/pressured. Facial expression anxious, sad. Mood very depressed and anxious. Thought processes distressed. Very low self esteem. Fatigued.” He diagnosed Halverson with major depressive disorder and anxiety disorder and concluded she was “[n]ot able to return to prior occupation at any time in the future.”
Dr. Brown also prepared a written report dated June 7, 2005 in which he diagnosed Halverson with “Depressive Disorder NOS, moderate to severe” and “Anxiety Disorder NOS, moderate.” On the assessment of work function impairments, Dr. Brown assessed three out of eight work functions with moderate limitations, one work function with slight to moderate limitation, and four work functions with slight limitations. He described Halverson as “permanent and stationary” for psychological purposes and as a “psychologically injured worker” who could not return to work. Under work restrictions, he wrote: “Given the combined [e]ffect of both her psychological and physical symptoms, it is unlikely that she will return to any employment. Should she return to some form of employment, she would be restricted to working a low stress job or in a low stress environment, and work on a part time basis.”
OCERS referred Halverson to psychologist David D. Fox, Ph.D., for examination relating to her claim of permanent disability based on psychological impairment. Dr. Fox examined and evaluated Halverson on September 29, 2005 and reported she had symptoms of depression and anxiety. However, Dr. Fox did not believe Halverson was permanently incapacitated from her job and listed lack of motivation as the biggest factor for her failure to return to work. He also noted that Halverson was inconsistent with taking her medication and in attending psychotherapy sessions. In his report dated October 3, 2005, Dr. Fox wrote: “This evaluation, along with the medical records and the psychological testing, reveals that there are elements of both a clinical syndrome (depression with anxious features) as well as persisting and long-standing personality problems. It is these personality problems that fundamentally affect her ability to work and her compliance with treatment.... It is noted in the records that she has not consistently taken the medication prescribed to her and has received little benefit from psychotherapy, in part due to poor attendance at psychotherapy sessions.... At the present time she intermittently does show signs of depression and anxious symptoms that are primarily related to her personality problems. It is noted, for example, that although she has been off work for more than two years, her symptoms persist.”
Dr. Fox believed Halverson showed “few clear cut signs of substantial psychological disability” and “[h]er depressive and anxiety symptoms have in the past occasionally interfered with her work but in and of themselves are not substantially disabling.” He noted her symptoms would improve with supportive care, counseling, and possibly medication, but “[a]ll of these treatments... are dependent upon her cooperation, which at this point is lacking.”
As for Halverson’s ability to work, Dr. Fox concluded: “Ms. Halverson’s claim of psychological disability appears to be based on her lack of motivation [rather] than her actual psychological symptoms. She does have symptoms of chronic depression and occasional anxiety associated with her chronic personality problems. However, the biggest factor interfering with her return to work is her lack of motivation. Her feelings were hurt on the job and she is unmotivated to participate in the kind of treatment that would relieve her symptoms. As indicated above, there are few objective signs of psychological disability. Her condition would likely improve if she were to be cooperative and compliant with treatment. [¶] Left untreated, her condition would be considered stationary. With treatment, some improvement is expected. Therefore, she does not show permanent incapacity to perform her job as a Deputy Public Guardian.”
Procedural History
The OCERS retirement board denied Halverson’s amended application for service connected and nonservice connected disability retirement in November 2005 and, as noted, had denied Halverson’s initial application in November 2003. Halverson appealed those denials and requested a hearing.
A hearing was conducted before a referee on October 31, 2006 and March 15, 2007. In December 2007, the referee issued an 80 page summary of evidence, findings of fact, conclusions of law, and recommendations. The referee concluded that Halverson “is not permanently incapacitated from her usual job duties as a Deputy Public Guardian” and recommended that the OCERS Board of Retirement deny her application for disability retirement.
In March 2008, the OCERS Board of Retirement adopted the referee’s decision and made a final decision to deny Halverson’s application for service connected and nonservice connected disability retirement.
In June 2008, Halverson filed a petition for peremptory administrative writ of mandate in the superior court pursuant to Code of Civil Procedure section 1094.5. The petition sought a writ of mandate ordering the OCERS Board of Retirement to set aside its decision denying her application for disability retirement and to grant her disability retirement application.
The trial court heard oral argument on the petition on February 27 and April 17, 2009. On April 21, the court issued a tentative ruling denying the petition and ordering both Halverson and OCERS to prepare and submit a proposed statement of decision. Also on April 21, Halverson filed a request for the trial court to maintain the administrative record pending further proceedings. The trial court denied the request and the administrative record was returned to OCERS.
Halverson filed objections to the trial court’s tentative ruling and her own proposed statement of decision. OCERS also filed a proposed statement of decision, which the trial court adopted as its statement of decision.
In its statement of decision, the trial court stated: “The court has independently reviewed the evidence submitted and determined that the weight of the evidence supports a finding that [Halverson] has not shown that she is permanently incapacitated from doing her job as a public guardian.” The trial court reviewed the accidents and summarized the findings of the physicians who examined Halverson, but ultimately relied on the opinion of Stanley Katz, M.D., who had conducted an independent medical examination of Halverson and had concluded she could perform her job duties full time without modification. The trial court found that Dr. Katz’s opinion “significantly outweigh[ed] the opinions of the other examining physicians” because Dr. Katz was the only doctor who had applied “the standard of permanent incapacity from performance of job duties that is the applicable standard for county disability retirement cases.”
Relying on Reynolds v. City of San Carlos (1981) 126 Cal.App.3d 208 (Reynolds), the trial court denied Halverson’s petition on the ground she did not “seek nor follow the prescribed treatment of the doctors with respect to the epidural steroidal injections.”
In denying Halverson’s claim for psychiatric disability retirement, the trial court again relied on Reynolds, supra, 126 Cal.App.3d 208 on the ground she “did not follow the treatment program prescribed by the doctors treating her psychiatric condition and did not take her medication on a regular and continuous basis, negating any benefit which she may have received.”
Judgment denying the petition for writ of mandate was entered on May 13, 2009.
Standard of Review
“Code of Civil Procedure section 1094.5 governs judicial review by administrative mandate of any final decision or order rendered by an administrative agency. [Citation.] If the decision of an administrative agency substantially affects a fundamental vested right, such as the right to disability benefits, then the trial court must not only examine the administrative record for errors of law, but must also exercise its independent judgment on the evidence. [Citations.] In the appellate court, the appropriate standard of review is the substantial evidence test. [Citations.] Therefore, where the trial court is required to exercise its independent judgment in an administrative mandamus proceeding, the appellate court reviews the record to determine whether the trial court’s judgment is supported by substantial evidence. [Citations.]” (Dobos v. Voluntary Plan Administrators, Inc. (2008) 166 Cal.App.4th 678, 683.) “Questions of law, on the other hand, are subject to a de novo standard of review.” (Ibid.)
Discussion
I.
Summary of Statutory Requirements for Service connected Disability Retirement
Entitlement to service connected disability retirement is governed by Government Code section 31720, which provides in relevant part: “Any member permanently incapacitated for the performance of duty shall be retired for disability regardless of age if, and only if: [¶] (a) The member’s incapacity is a result of injury or disease arising out of and in the course of the member’s employment, and such employment contributes substantially to such incapacity....” The term “incapacitated for the performance of duty” means “‘the substantial inability of the applicant to perform [her] usual duties.’” (Curtis v. Board of Retirement (1986) 177 Cal.App.3d 293, 297, quoting Mansperger v. Public Employees’ Retirement System (1970) 6 Cal.App.3d 873, 876.) The ability to substantially perform usual job duties, though painful or difficult, does not constitute permanent incapacity. (See Hosford v. Board of Administration (1978) 77 Cal.App.3d 854, 862.)
Government Code section 31724 provides, in relevant part: “If the proof received, including any medical examination, shows to the satisfaction of the board that the member is permanently incapacitated physically or mentally for the performance of his duties in the service, it shall retire him effective on the expiration date of any leave of absence with compensation to which he shall become entitled under the provisions of Division 4 (commencing with Section 3201) of the Labor Code or effective on the occasion of the member’s consent to retirement prior to the expiration of such leave of absence with compensation.”
II.
The Trial Court Erred to the Extent It Denied Halverson’s Petition on the Ground of Noncompliance with Recommended Treatment.
Halverson argues the trial court erred by relying on Reynolds, supra, 126 Cal.App.3d 208 and denying her petition on the ground she failed to follow the recommended treatment for both her physical and mental conditions. We conclude the trial court erred to the extent it based its decision to deny Halverson’s writ petition on the ground of noncompliance with recommended treatment.
In Reynolds, supra, 126 Cal.App.3d at pages 210 211, the Civil Service Commission (the Commission) denied Kent Reynolds’s application for service connected disability retirement on the ground Reynolds, a firefighter, did not undergo the recommended treatment of knee surgery. The Commission found that Reynolds had suffered an “‘on the job injury to his knee’” but his disability was not permanent because “the medical probabilities are great that Firefighter Reynolds will be restored to normal functioning if he submits to surgery.” (Id. at p. 211.) A witness at the Commission hearing testified that a treating physician had said Reynolds had a 98 percent chance of recovery if surgery were performed; another witness testified that a different treating physician placed those chances at 90 percent. (Id. at p. 218.) Reynolds testified he would not undergo surgery unless he had a “‘100% guarantee for success.’” (Ibid.) The trial court upheld the Commission’s decision, finding Reynolds’s refusal to undergo knee surgery “‘was not reasonable under the circumstances.’” (Id. at p. 211.) The Court of Appeal, affirming, concluded substantial evidence supported the trial court’s findings. (Id. at p. 220.)
In reaching its decision, the Commission relied on Labor Code section 4056 which provides: “No compensation is payable in case of the death or disability of an employee when his death is caused, or when and so far as his disability is caused, continued, or aggravated, by an unreasonable refusal to submit to medical treatment, or to any surgical treatment, if the risk of the treatment is, in the opinion of the appeals board, based upon expert medical or surgical advice, inconsiderable in view of the seriousness of the injury.” On appeal, the Reynolds court rejected the argument section 4056 applies only to workers’ compensation claims. The court reasoned that “[s]ection 4056 merely codifies the common law rule requiring mitigation of damages [citation], which is properly applied in determining eligibility for disability retirement.” (Reynolds, supra, 126 Cal.App.3d at pp. 215, 216.)
In Thompson v. Workers’ Comp. Appeals Bd. (1994) 25 Cal.App.4th 1781, 1786, the court stated, “‘[Labor Code s]ection 4056 obviously was adopted by the Legislature to protect employers who tender medical or surgical treatment to their injured employees by making certain that workmen will be returned to the labor market as quickly as possible; its plain purpose is to prevent employees with treatable injuries from resorting to unfounded beliefs, ungrounded fears or personal idiosyncrasies or convictions to reject proffered treatment.’”
Labor Code section 4056 creates an affirmative defense. Labor Code section 5705, which discusses the burden of proof and affirmative defenses applicable to workers’ compensation claims, states the employer has the burden of proof on affirmative defenses, including “[a]ggravation of disability by unreasonable conduct of the employee.” (Lab. Code, § 5705, subd. (d); see also Gallegos v. Workmen’s Comp. App. Bd. (1969) 273 Cal.App.2d 569, 574 [employer has burden of proof under Labor Code section 4056].)
At the administrative hearing, OCERS did not raise the issue of noncompliance with recommended treatment, either under Labor Code section 4056 or under a claim of failure to mitigate damages. OCERS did not mention noncompliance with recommended treatment in its prehearing statement or closing brief. OCERS’s counsel did not question Halverson about her decision not to undergo cervical epidural injections or about taking her prescribed psychotropic medications.
OCERS had the obligation to raise the affirmative defense of noncompliance with recommended treatment at the administrative hearing. An issue not raised at an administrative hearing may not be raised in a later judicial proceeding. (Southern Cal. Underground Contractors, Inc. v. City of San Diego (2003) 108 Cal.App.4th 533, 549.) In addition, OCERS did not allege noncompliance with recommended treatments as an affirmative defense in its response to Halverson’s writ petition.
OCERS argues we may affirm based on noncompliance with treatment because “the factual underpinnings of the defense have been present and an important part of the record from the beginning of this case.” This argument misconstrues the nature and effect of an affirmative defense. Regardless whether the administrative record contains evidence supporting noncompliance with treatment, OCERS’s failure to assert the issue in the administrative proceeding means Halverson was not put on notice of the need to present evidence on the issue. As Halverson asserts, she could and would have submitted evidence on the issue of noncompliance with recommended treatment had she been put on notice of her need to do so. With her objections to the trial court’s tentative decision, Halverson submitted an article on studies sponsored by the American Academy of Neurology questioning the efficacy of epidural steroidal injections to treat radicular lumbosacral pain.
In any case, the evidence presented at the administrative hearing did not support an affirmative defense based on Halverson’s failure to undergo the recommended cervical epidural injections. Under Labor Code section 4056, the refusal to submit to medical treatment must be unreasonable, and the risk of treatment must be “inconsiderable in view of the seriousness of the injury.” Here, unlike Reynolds, there was no evidence regarding the probability the epidural injections would alleviate Halverson’s symptoms or cure her condition. There was no evidence of the risks associated with cervical epidural injections: Dr. Anguizola’s report notes only that the pros and cons of the procedure were discussed with Halverson. There was no factual basis on which to conclude Halverson’s decision not to undergo cervical epidural injections was unreasonable, and the referee did not consider that factor in reaching the decision to deny the application for disability retirement.
The referee based his conclusion that Halverson was not psychologically disabled on a finding that she “has elected to not seek the appropriate intervention for her psychological issues.” That finding was based on Dr. Fox’s testimony alone. Because OCERS did not raise the issue of noncompliance with recommended psychiatric/ psychological treatment, Halverson was not put on notice of the need to present evidence that her noncompliance was reasonable under the circumstances or the risk of treatment was not inconsiderable.
III.
The Trial Court Did Not Err by Assigning Greater Weight to Dr. Katz’s Opinions.
In the statement of decision, the trial court found: “Dr. Katz was the only Dr. who examined [Halverson], applying the standard for the Retirement Board of permanent incapacity. None of the other Dr[s]. (Pospisil, Fleming, or Kim) discussed [Halverson’s] condition in terms of her permanent incapacity. They each are examining [Halverson] for Work[ers’] comp[ensation] ‘permanent and stationary’ status. Katz’[s] opinion for purposes of this proceeding significantly outweigh[s] the opinions of the other examining physicians for this reason.”
Halverson argues the trial court abandoned its duty to conduct an independent review of the administrative record by concluding Dr. Katz’s opinions “significantly outweigh[ed]” the opinions of the other examining physicians. Halverson argues, “[s]ince many, if not most, of the cases that reach the Superior Court on a writ of mandate involve claims for ‘service connected’ incapacity, the Court’s reasoning would mean that most, if not all, of the evidence from treating physicians as well as both defense and applicant Qualified Medical Examiners including many Board Certified specialists in their field would be ignored in favor of the OCERS appointed physician.”
If a decision of an administrative agency affects a fundamental vested right, the trial court must “exercise its independent judgment on the evidence and find an abuse of discretion if the findings are not supported by the weight of the evidence.” (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 44.) In exercising this independent judgment, the trial court was not required to treat all evidence as being of equal value and could make qualitative distinctions between the opinions of the various physicians and psychologists. As part of this exercise of independent judgment, the trial court could choose to accord Dr. Katz’s opinions greater weight because he determined whether Halverson met the standard for service connected disability retirement. It is true, as Halverson asserts, OCERS appointed Dr. Katz under Government Code section 31729, but the trial court in exercising independent judgment could assess Dr. Katz’s credibility and potential bias.
IV.
The Trial Court’s Error Was Not Fundamental; Therefore, the Substantial Evidence Rule Applies.
Although the trial court erred to the extent it based its decision on the ground of noncompliance with recommended treatment, under the usual rules of appellate review, we apply the substantial evidence test to the trial court’s finding that Halverson is not “permanently incapacitated from doing her job as a public guardian.” Because Halverson did not bring any ambiguities or omissions in the statement of decision to the trial court’s attention, we would infer the trial court made all factual findings necessary to support the judgment and determine whether substantial evidence supported those implied findings. (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 58 59.)
Halverson argues, however, the trial court’s error was fundamental, and therefore under Fukuda v. City of Angels (1999) 20 Cal.4th 805, the court’s decision cannot be reviewed for substantial evidence. In Fukuda, a hearing officer determined after a seven day administrative hearing that a police officer had engaged in misconduct and recommended the officer’s employment be terminated. (Id. at pp. 809 810.) After the city council adopted the hearing officer’s recommendation, the police officer sought an administrative writ of mandamus. (Id. at p. 810.) The trial court erroneously believed the city had the burden of establishing the weight of the evidence supported the hearing officer’s findings and concluded the city had failed to meet that burden. (Ibid.) The Court of Appeal affirmed. (Ibid.) The California Supreme Court, reversing the Court of Appeal, concluded the administrative findings are presumed correct and the party seeking an administrative writ of mandate bears the burden of proving those findings are incorrect. (Id. at p. 808.)
The Fukuda court confirmed the substantial evidence test usually is the standard of review on appeal of a trial court’s review of an administrative decision. (Fukuda, supra, 20 Cal.4th at p. 824.) But, the court stated: “In the present case, however, we cannot properly review the trial court’s findings and decision for substantial evidence, because that court’s findings are themselves infected by fundamental error: The trial court erred by placing the burden of proof on the City, and by failing to accord a presumption of correctness to the administrative findings.” (Ibid.) The trial court’s comment that the evidence was “‘evenly balanced, and the party having the burden of proof loses’” demonstrated the misallocation of the burden of proof affected the outcome. (Ibid.) Thus, rather than apply the substantial evidence test, the Supreme Court reversed and remanded to the trial court for further proceedings. (Id. at p. 825.)
Halverson contends this case is similar to Fukuda because “the legal issues involved in this appeal do involve the proper allocation of the burden of proof on OCERS” and the legal errors pertain to “OCERS’ burden of proof in establishing the defense it raised regarding [Halverson]’s medical treatment.” Although the trial court erred to the extent it based its decision on the affirmative defense of noncompliance with the recommended course of treatment, that error was not fundamental. Unlike the trial court in Fukuda, the trial court here did not misallocate the burden of proof, fail to accord a presumption of correctness to the administrative findings, or apply the incorrect standard for reviewing an administrative decision. In the statement of decision, the trial court stated it independently reviewed the evidence submitted. The trial court’s error does not prevent us from reviewing the trial court’s findings-both express and implied-under the substantial evidence standard.
V.
Substantial Evidence Supports the Trial Court’s Express and Implied Findings.
The trial court expressly found: “The court has independently reviewed the evidence submitted and determined that the weight of the evidence supports a finding that the Petitioner has not shown that she is permanently incapacitated from doing her job as a public guardian.” Substantial evidence supported that finding.
In applying the substantial evidence rule, we accept as true the evidence supporting the judgment, disregard conflicting evidence, and draw all reasonable inferences in favor of the judgment. (Murray’s Iron Works, Inc. v. Boyce (2008) 158 Cal.App.4th 1279, 1285.) The uncorroborated testimony of a single witness may constitute substantial evidence. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.)
Dr. Katz’s report constituted substantial evidence supporting the trial court’s finding on the issue of physical incapacity. In July 2003, Dr. Katz examined Halverson, reviewed her extensive medical history, and diagnosed her as having chronic cervical spine strain with cervical disc herniation. Dr. Katz concluded: “Had [Halverson] not retired at age 50, she could still be doing her work duties full time without modifications beyond those that were already present when she returned to work in March of 200[2]. The patient’s spine injuries are not of sufficient magnitude to preclude her from doing most of her usual and customary work duties.”
In addition, none of the other physicians who treated or examined Halverson determined whether she was permanently incapacitated from performing her work duties, the statutory standard for disability retirement. In August 2002, Dr. Pospisil determined Halverson was “temporarily totally disabled, ” and in August 2001, Dr. Kim determined she was “permanent and stationary” (boldface and capitalization omitted). In February 2001, Dr. Fleming reported that Halverson was not a qualified injured worker, considered her to be “permanent and stationary” as of October 5, 2000, and believed she had no orthopaedic impediments to returning to work on that date.
Halverson argues Dr. Katz’s report does not constitute substantial evidence that she had the capacity to perform her job duties as public guardian because Dr. Katz concluded she could work full time with the modifications in place when she returned to work in March 2002. According to Halverson, with those modifications in place, she was not able to meet the physical and mental requirements of the position of deputy public guardian.
When Halverson returned to work in March 2002, she was subject to these work modifications and restrictions: lifting no more than 15 pounds; light work only; “limit positioning [of] the neck to 30 minutes at a time” and “change position for 10 minutes”; no more than two hours of driving in an eight hour shift; no repetitive neck motion; no repetitive use of upper extremities at or above shoulder level; no heavy use of arms for “pulling, pushing or other heavy tasks”;and no constant sitting. Those modifications reflected Dr. Pospisil’s recommended work restrictions that Halverson should not be required to sit “more than occasionally, ” should be permitted to change position at least every 30 minutes, and should not drive more than two hours per day.
Halverson argues the work modifications and restrictions set by her employer must be compared to the actual physical and mental requirements of the position of deputy public guardian to determine whether she was incapacitated from performing her job duties. The Orange County job classification describes the physical and mental requirements of the position of public administrator/guardian as follows: “Incumbents must possess vision sufficient to read standard text and read a computer monitor and to drive; speak and hear well enough to communicate clearly and understandably in person and over the phone; independent body mobility to stand, sit, walk, stoop and bend routinely to perform daily tasks and to access a standard office environment. Manual dexterity to use hands, arms and shoulders repetitively to operate a keyboard, to write and to drive; stamina to sit for one hour at a time and up to five hours a day.”
Halverson’s reasoning is that the employer mandated job restrictions and Dr. Pospisil’s recommendations restricted Halverson to working less than required by the stated physical and mental requirements of the position of public guardian. Thus, if Halverson had the capacity to work only with those modifications, as Dr. Katz opined, then Halverson ipso facto is incapacitated from meeting the physical and mental requirements of her job.
Specifically, Halverson argues, the requirement that she be able to sit for an hour at a time and up to five hours a day is incompatible with Dr. Pospisil’s recommendation that she sit no more than “occasionally.” She relies on a United States Department of Labor manual defining the word “occasional” as the capacity to perform a task “up to 1/3 of the time.” Based on that definition, she argues that by restricting Halverson to sitting no more than occasionally, Dr. Pospisil limited her to sitting no more than two to three hours per day, which is less than the “up to five hours a day” required. Further, she argues, the restriction on driving, combined with the restriction on sitting, means she could drive no more than 25 to 30 minutes at a time and could not drive more than two hours in an eight hour workday.
Dr. Katz’s conclusion that Halverson could work with the prior modifications appears to refer to the actual modifications established by the County of Orange, not Dr. Pospisil’s recommendations. The modifications established by the County of Orange are compatible with the physical and mental requirements of the position of public guardian. Those modifications, rather than limiting Halverson to sitting only “occasionally, ” required no constant sitting. The modifications limit driving to two hours per eight hour day, while the physical and mental requirements do not include a minimum number of hours driving. It is true, as Halverson argues, that Dr. Katz’s opinion that she was not incapacitated was valid only if the work restrictions and modifications established in September 2001 were made permanent. Three of the eight restrictions (no repetitive neck motion or use of upper extremities and no heavy task) were permanent. There is no evidence to suggest the other modifications could not or would not be made permanent if necessary.
Substantial evidence supported the trial court’s implied finding that Halverson’s psychological impairments did not incapacitate her from performing her work duties. Halverson does not contend otherwise. Dr. Fox examined and evaluated Halverson in September 2005 and concluded she was not permanently incapacitated from her job. He listed lack of motivation and long-standing personality problems as the main factors for her failure to return to work.
VI.
The Trial Court Erred by Denying Halverson’s Request to Maintain the Administrative Record, but the Error Was Harmless.
After the trial court issued its tentative decision, Halverson requested the trial court to maintain the administrative record pending further proceedings. The trial court denied the request and returned the administrative record to OCERS before the proceedings were concluded.
Halverson argues the trial court erred by denying her request because without the administrative record, the court could not properly consider her objections to the tentative decision and her proposed statement of decision. We agree the trial court should have kept the administrative record until the trial court proceedings were concluded and find no justification for prematurely returning the record to OCERS. We conclude, however, the error is harmless. Much of Halverson’s objections to the tentative decision was directed to the Reynolds case and the defense of noncompliance with recommended treatment. We have concluded the trial court erred to the extent it based its decision on that affirmative defense. As for Halverson’s other objections, the trial court could have asked for OCERS to return the administrative record if the court needed it to rule on those objections. While, as Halverson argues, lack of the administrative record impaired the trial court’s ability to check for factual errors, the only such error Halverson notes (the date of Dr. Fleming’s report) was not material to the trial court’s statement of decision.
VII.
We Infer the Trial Court Made an Implied Finding on the Combined Effect of Halverson’s Physical and Mental Impairments.
Finally, Halverson argues the trial court failed to consider the combined effects of her physical and mental impairments on her ability to perform her job duties. The trial court made no express finding on the combined effect of Halverson’s mental and physical impairments. In her objections to the trial court’s tentative decision, Halverson asserted the trial court failed to consider the combined effect of her physical and mental impairments. But after the trial court issued its statement of decision, she did not bring this omission to the trial court’s attention. Accordingly, under the doctrine of implied findings, we infer the trial court made all factual findings necessary to support the judgment, including a finding that the combined effect of Halverson’s physical and mental impairments did not permanently incapacitate her from performing her job duties. (Fladeboe v. American Isuzu Motors Inc., supra, 150 Cal.App.4th at pp. 58 59.)
Halverson concedes there are no published decisions addressing whether a court must consider the combined effects of physical and mental impairments in deciding entitlement to disability retirement benefits under Government Code sections 31720 and 31724. In Lester v. Chater (9th Cir. 1995) 81 F.3d 821, 830, the Ninth Circuit Court of Appeals held that the commissioner of the Social Security Administration erred by isolating the effects of the applicant’s physical impairment from the effects of the applicant’s mental impairment in denying social security disability benefits. The Ninth Circuit stated, “[b]ecause in this case the effects of the physical and mental limitations are inseparable from a medical standpoint, and thus are inextricably linked, we need not consider whether or under what circumstances such linkage is necessary in order to find that a combination of two different impairments equals a listing” under the listings of impairments in the relevant regulations. (Id. at p. 830, fn. 6.)
As Halverson argues, there is evidence that would support a finding that the combined effect of her physical and mental impairments permanently incapacitated her from performing her job duties. Dr. Brown in particular stated in his June 2005 report that “[g]iven the combined [e]ffect of both her psychological and physical symptoms, it is unlikely that she will return to any employment.”
The relevant issue, however, is whether substantial evidence supports an implied finding that the combined effect of Halverson’s physical and mental impairments did not permanently incapacitate her from performing her job duties. (Fladeboe v. American Isuzu Motors Inc., supra, 150 Cal.App.4th at p. 58.) The reports of Dr. Katz and Dr. Fox, taken together, provide such substantial evidence. Dr. Fox concluded not only that Halverson’s depression and anxiety were not “substantially disabling, ” but also that lack of motivation was “the biggest factor interfering with her return to work.” Dr. Katz concluded Halverson’s physical injuries did not prevent her from performing her job duties with work modifications in place. Since Dr. Fox found Halverson’s lack of motivation, not mental impairments, was the biggest factor for her not working, and Dr. Katz found Halverson’s physical impairments did not prevent her from working, the combined effect of Halverson’s mental and physical impairments was not permanent incapacitation.
Disposition
The judgment is affirmed. In the interest of justice, no party shall recover costs incurred on appeal.
WE CONCUR: O’LEARY, ACTING P. J.IKOLA, J.