Santa Clara County Superior Court, Superior Court No. 1-10-CV177077, Hon. Erica R. Yew. (No. 1-10-CV177077).
[Copyrighted Material Omitted]
Gates Eisenhart Dawson, Nicholas G. Emanuel, San Jose, Counsel for Plaintiff/Appellant, William Meyers.
Office of the City Attorney, Richard Doyle, City Attorney, Nora Frimann, Assistant City Attorney, Margo Laskowska, Senior Deputy City Attorney, Reed Smith, Jeffrey R. Rieger, Counsel for Defendant/Respondent, Board of Administration for the Federated Employees Retirement Fund.
[168 Cal.Rptr.3d 562] Premo, J.
Plaintiff William Meyers was injured on the job while employed by the City of San Jose (the City). He applied to defendant, the Board of Administration for the Federated City Employees Retirement Fund (the Board) for the City of San Jose, for disability retirement benefits as provided for City employees by the San Jose Municipal Code. The Board denied Meyers's application. Meyers challenged that denial by way of an administrative mandate petition, which the superior court denied. Meyers now appeals from that denial.
We reverse the judgment and direct the trial court to grant Meyers's petition for a writ of mandate and remand the matter to the Board for further proceedings.
A. Factual Background
1. Meyers's Injury, Medical Treatment, and Workers Compensation Claim
Meyers began working for the City as an associate construction inspector in 2001. In February 2003, he fell on the job, hitting his back and elbow on the pavement. Meyers sought treatment for the resulting back and neck pain, and, in August 2003, underwent surgery during which three of his vertebrae were fused together.
Meyers returned to work in December 2003 but continued to experience muscle spasms and back pain for which he took medication and received ongoing treatment. On July 18, 2004, Meyers was transferred to the Department of Transportation (DOT) as a sidewalk inspector. Meyers's back pain
increased, and, in October 2004, became so severe that he went to the emergency room.
Meyers filed a worker's compensation claim. In connection with that claim, Meyers was examined by two qualified medical examiners, John Horowitz, D.C., and Richard Abend, D.C. In his October 18, 2004 report, Dr. Horowitz noted that Meyers's new position as a sidewalk inspector required repetitive bending, which had exacerbated his lower back pain. Dr. Horowitz took Meyers off work at that time, noting that Meyers's condition was " persistent and his pain [was] nearly intolerable." Dr. Horowitz's report noted that Meyers may not be able to tolerate the repetitive bending required by his current job as a sidewalk inspector. Dr. Horowitz again examined Meyers on February 23, 2005, and concluded that Meyers could not bend, crawl, crouch, or kneel; lift or carry 25 pounds or more; engage in push/pull activity exerting significant force; or frequently extend or rotate his head and neck. On October 18, 2005, Dr. Horowitz concluded that Meyers could not return to his job as a result of his disability, which Dr. Horowitz concluded was caused by the February 2003 workplace fall.
Dr. Abend concluded in December 2004 that " Mr. Meyers' present disability ... was a direct result of his industrial injury of February 14, 2003." On November 15, 2005, Dr. Abend concluded that " Meyers has a disability that limits him to semi-sedentary work." Dr. Abend further concluded that Meyers could not " tolerate strenuous activity," " sit for more than 30 minutes without a short break," " stand for more than 15 minutes in one place," " perform any repeated bending or stooping, pushing or pulling, or lifting greater than 15 pounds."
Meyers was separated from City service on May 19, 2005.
A letter from a City workers' compensation claims adjuster dated November 10, 2005, informed Meyers that the City " has no modified or alternative work available for you." That conclusion was based on [168 Cal.Rptr.3d 563] the restrictions imposed by Dr. Horowitz on February 23, 2005.
In April 2006, the State of California Workers' Compensation Appeals Board awarded workers' compensation benefits to Meyers, finding that an industrial injury ...