Matlovsky v. Board of Retirement

Opinion

KINGSLEY, Acting P. J. Petitioner appeals from a judgment denying his petition for a writ of mandate to overturn a decision of the board denying him a service-connected disability retirement.1 We reverse.

Petitioner was employed by the county as a medical photographer from 1939 until his retirement in 1976, except for a period of military service between 1942 and 1946. He claims to be entitled to the service-connected retirement because: (1) the stress and strain of the administrative responsibility connected with his job caused disabling tensions;2 and (2) the job-connected requirement of standing six or more hours a day aggravated varicose veins in his legs, causing ulcers as well as debilitating pain.

[1071]The briefs here are directed primarily to the leg injury. The board relied on a report from one medical expert arguably adverse to petitioner and the trial court relied on that same report.3 We conclude that both the board and the trial court erred and, therefore, reverse the judgment with directions to grant the writ.

The governing statute is section 31720 of the Government Code which, at the time of petitioner’s retirement and application for a pension—i.e., July of 1976—read in pertinent part as follows: “Any member permanently incapacitated for the performance of duty shall be retired for disability regardless of age if, and only if, (a) His incapacity is a result of injury or disease arising out of and in the course of his employment. ...”

That statute has been construed in a series of cases, including Gelman v. Board of Retirement (1978) 85 Cal.App.3d 92 [149 Cal.Rptr. 225], to require a service-connected disability retirement (a) if the disabling injury or disease was a but not necessarily the sole, cause of the retirement; and (b) an injury was a cause of the disability if it aggravated to any degree, even if slight,4 a condition that, in and of itself, was not service connected.5 The Board here relies on a 1980 amendment of section 31720, so that it now reads, in pertinent part, as follows: “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 board’s reliance on that 1980 amendment is in error. The 1980 amendment expressly provides that: “The amendments to this section enacted during the 1979-1980 Regular Session of the Legislature shall be applicable to all applicants for disability retirement on or after the effective date of such amendments.” In the case at bench, petitioner became an applicant for a disability retirement in July of 1976. His retirement rights had vested by that date; it is immaterial that bureaucratic red tape has postponed his enjoyment of those rights until 1983.