Mansperger v. Public Employees' Retirement System

Opinion

KINGSLEY, Acting P. J.

Petitioner appeals from a judgment denying a peremptory writ of mandate to set aside a decision of respondent Public Employees’ Retirement System.

Petitioner sought to have the superior court reverse respondent’s decisions that petitioner was not physically incapacitated - from performing his duties as a fish and game warden within the meaning of Government Code section 21022, and thus was not eligible for disability retirement. An alternative writ of mandate was issued, trial was had, the administrative record was received in evidence, the petition for the writ of mandate was denied, and judgment was entered.

Petitioner has been a fish and game warden for the Department of Fish and Game since June 5, 1950. Petitioner is a warden member under the Public Employees’ Retirement Law and is in the class eligible for the special disability retirement allowance provided for safety members.

The general duties of a fish and game warden are set forth in the specifications for that class issued by the California State Personnel Board. These duties include patrolling specified areas to prevent violations and to

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apprehend violators; issuing warnings and serving citations; serving warrants and making arrests; investigating wildlife and crop damage complaints and issuing kill permits; seizing equipment used in violations and seizing fish and game illegally taken; feeding animals and game birds during unusual weather conditions; assisting and conducting controlled hunts; investigating water pollution and speaking at civic meetings.

A fish and game warden is a peace officer and has to be able to shoot a gun; he has to remove dead animals by pushing them to the side of the road or putting them in pickup trucks. If the animal is large the wardens may require assistance; a warden may be assigned duties as a beach warden and have to raise lobster traps, pick up sacks of abalones or buckets of clams, rescue people from the water by reaching over the sides of boats and assisting people into boats. A game warden must be able to row a boat and swim 100 yards, board and inspect pleasure and fishing boats, and arrest suspected violators.

Petitioner was performing duties of a beach warden when he suffered injuries to his right arm while arresting a suspect. Dr. Lambert, an orthopedist who examined petitioner, concluded as follows: “The patient is partially disabled because of the condition of the arm, however, it is felt that flexor power of the elbow is diminished by approximately only 20% and with supinator power of the forearm being diminished approximately 40%. However, the patient has good use of the arm other than for the slight limitation of full flexion and no other joint disfunction is evident. The patient therefore is not disabled except for activities requiring heavy lifting and carrying and it does not appear that he normally does this sort of work. I do not therefore believe the patient to be disabled for his usual and customary job activities. His condition is permanent and stationary. No active treatment is indicated. No improvement is to be anticipated in the future.”