Desimone v. Retirement Board etc. CA2/6

California Court of Appeal Jul 21, 2021 No. B307702Unpublished

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Holding. The court held that the appellant failed to establish that his off-duty weight-lifting injury was service-connected under the County Employees Retirement Law, noting that the legal test from Ezzy v. Workers’ Comp. Appeals Bd. is not controlling for such claims and that, in any event, the appellant's belief that his employer required the specific activity was not objectively reasonable.

Issues

Whether the trial court properly applied the test from Ezzy v. Workers’ Comp. Appeals Bd. to determine if an off-duty injury was service-connected under the County Employees Retirement Law.
Whether the appellant's off-duty weight-lifting activity constituted a 'reasonable expectancy' of his employment.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Ezzy, supra, 146 Cal.App.3d 252, is not controlling authority because it involved a worker’s compensation claim under the Labor Code, and not, as here, a claim for service-connected disability retirement benefits under the CERL”

Filed 7/21/21 Desimone v. Retirement Board etc. CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

DANIEL DESIMONE, 2d Civil No. B307702 (Super. Ct. No. 19CV01709) Plaintiff and Appellant, (Santa Barbara County)

RETIREMENT BOARD OF THE SANTA BARBARA COUNTY EMPLOYEES’ RETIREMENT SYSTEM,

Defendant and Respondent.

Daniel Desimone appeals from judgment after the trial court denied his petition for writ of mandate, which sought to set aside the decision denying his application for service-connected disability retirement benefits by the Retirement Board of the Santa Barbara County Employees’ Retirement System (the Board). We affirm.

FACTUAL AND PROCEDURAL HISTORY In 2006, Desimone began working for the County of Santa Barbara (County) as a corrections officer (now custody deputy). In October 2007, Desimone injured his lower back. The incident occurred at a private gym inside an apartment complex on a weekend when Desimone was not working and no other County employees were present. Desimone was attempting to lift 350 pounds without the direction or supervision of a fitness trainer. The injury resulted in permanent damage to his spine. He said that he was lifting weights in hopes of being promoted to Deputy Sheriff. Desimone continued working as a custody deputy until March 2016. In 2017, he filed an application for disability retirement benefits. Desimone was examined by Drs. Conwisar and Ganjianpour. Both physicians agreed he was permanently incapacitated, but they disagreed on whether his disability was service connected. Dr. Conwisar opined that it was “within reasonable medical probability” that Desimone’s work activities contributed to the injury. Dr. Ganjianpour opined that Desimone’s disc herniation resulted from the 2007 weight-lifting incident and that his work duties did not “significantly and measurably contribute” to his incapacity. The Board referred the question of whether the disability was service connected to a referee. At an evidentiary hearing, the referee reviewed medical reports including the reports of Drs. Conwisar and Ganjianpour, employment records, and Desimone’s testimony. The referee also considered the opinion of a third physician, Dr. Harter, who found there was no evidence that Desimone’s spinal

Desimone v. Retirement Board etc. CA2/6

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

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