Garrick v. Board of Pension Commissioners

Opinion

COBEY, Acting P. J. The Board of Pension Commissioners of the City of Los Angeles appeals from a judgment granting a peremptory writ of mandate directing it to reconsider its denial of a service-connected pension to the widow of a police sergeant and in such reconsideration to give effect to the disputable presumption created by Labor Code section 3212.5.

This section creates a disputable presumption that heart trouble developing or manifesting itself during the service of a member of a city police department, who has served at least five years, arose out of such service. This presumption may be controverted by other evidence.1

The narrow issue before us is whether section 3212.5 must be applied in appropriate pension proceedings before the board. If it must, then the board did not proceed in the manner required by law and abused [245]its discretion prejudicially. (See Code Civ. Proc., § 1094.5, subd. (b); cf. Siler v. Industrial Acc. Com., 150 Cal.App.2d 157, 164 [309 P.2d 910].)

Respondent’s position is that section 3212.5, despite the absence of any language making it applicable to proceedings other than workmen’s compensation proceedings, should have been applied in the pension procéedings before us.2 She relies upon Pathe v. City of Bakersfield, 255 Cal.App.2d 409, 420-421 [63 Cal.Rptr. 220], hearing denied. Although unmentioned by her, Rogers v. Retirement Board, 109 Cal.App.2d 751, 758 [241 P.2d 611], held that that tribunal abused its discretion in failing to apply this section in a pension proceeding before it initiated by the widow of a police officer.

Respondent argues that the statement in French v. Rishell, 40 Cal.2d 477, 480-484 [254 P.2d 26], of the nonapplicability in pension proceedings of essentially the same presumption (Lab. Code, § 3212) as the one before us, was only dictum; and that it runs counter to the thoroughly established law that if there is any conflict between the provisions of a city’s charter and the applicable provisions of the Workmen’s Compensation Act, the latter must prevail since the provision of workmen’s compensation benefits, including death benefits, pursuant to the plenary provisions of California Constitution, article XX, section 21, is a matter of statewide concern. (See Healy v. Industrial Acc. Com., 41 Cal.2d 118, 121-122 [258 P.2d 1]; City & County of S.F. v. Ind. Acc. Com., 142 Cal.App.2d 494, 500-501 [298 P.2d 651]; Pathe v. City of Bakersfield, supra, 255 Cal.App.2d 409, 416-417, 420-421, hg. den.) Furthermore, according to her, pension legislation should be liberally construed to achieve its beneficent purpose. (Dillard v. Los Angeles, 20 Cal.2d 599, 602 [127 P.2d 917].) Moreover, as just indicated, if there is any conflict between the compensation provisions made by an employer and those made by state law, the latter must prevail. (City etc. of San Francisco v. Workmen’s Comp. App. Bd., 2 Cal.3d 1001, 1010 [88 Cal.Rptr. 371, 472 P.2d 459].) In this connection she asserts that a municipal pension to a widow is a death benefit and therefore should be regarded as compensation within the meaning of the Workmen’s Compensation Act.