Workers' Compensation Appeals Board WCAB Case No.:
Attorneys for Petitioner, JOSAFAT RODRIGUEZ, JR.: Mazur &
Mazur, Janice R. Mazur, Scott Shaffman
Attorneys for Respondents, WORKERS' COMPENSATION APPEALS
BOARD, CITY OF, SANTA CRUZ et al.: Allison J. Fairchild,
Witzig, Hannah, Sanders & Reagan, LLP, Mark P. Witzig,
Josafat Rodriguez, Jr. is a veteran of the Gulf War, and
served as a police officer for the City of Santa Cruz
(“City”) from 1995 until 2007. He applied for
industrial disability retirement in 2011 with the California
Public Employee's Retirement System (“PERS”
or “CalPERS”) based on his diagnosis of
Post-Traumatic Stress Disorder (“PTSD”) that was
caused in part by his work for the City.
City disputed whether Rodriguez was entitled to disability
retirement through six- and one-half years of litigation
resulting in two opinions from this Court that ultimately
confirmed Rodriguez's right to the retirement allowance.
(Rodriguez v. City of Santa Cruz (2014) 227
Cal.App.4th 1443 (Rodriguez I); Rodriguez v.
City of Santa Cruz (Sept. 22, 2016, H042280) [nonpub.
opn.] (Rodriguez II).)
this Court's decision in Rodriguez II, the City
granted Rodriguez disability retirement, but denied his claim
of industrial causation, and he began to receive benefits on
December 1, 2016. Rodriguez then requested a finding that his
disability was industrial from the Workers' Compensation
Appeals Board (“WCAB” or “Board”) on
April 25, 2017. The Board concluded that Rodriguez's
disability was industrial, but that he was barred from
receiving industrial disability retirement benefits because
his claim for a finding of industrial causation was untimely
under the five-year time limitation set forth in Government
Code section 21171.
that Rodriguez's claim for industrial causation was
timely. We therefore annul the Board's decision.
Statement Of The Facts And Case
served as a Marine during the Gulf War. During his military
service, Rodriguez experienced combat violence, including a
mortar attack on his five-man team, which left three men
Rodriguez returned to the United States in 1995, he was hired
as a police officer for the City and worked as a detective in
the narcotics and gang task force. In January 2000, Rodriguez
injured his back during a nighttime raid and was unable to
work for approximately a year. When he returned to work, he
was assigned to a role in a limited capacity as a police
station duty officer.
2005, Rodriguez had back surgery, and was cleared to return
to work in July 2006. Rodriguez did not return to work,
claiming he was not physically able to perform the necessary
duties. In August 2006, Rodriguez filed an application with
the City for industrial disability retirement based on his
back injury. The City denied Rodriguez's first disability
retirement claim in February 2008 following a hearing before
an administrative law judge (“ALJ”). The ALJ
found that Rodriguez was not credible and that he was not
substantially incapacitated from performing the duties of a
police station duty officer.
returned to work for two weeks in late March and early April
2007, after being ordered to do so or face termination. He
stopped showing up for work and was again warned that he
could be terminated. On June 7, 2007, Rodriguez resigned for
Rodriguez resigned from the police department in 2007, he met
with a counselor at the Department of Veteran's Affairs
(“Department”). The counselor advised him to
apply for veteran's disability retirement. Rodriguez was
evaluated by a Department psychologist twice in 2008 and by a
psychiatrist in 2010. Rodriguez reapplied to the City for
disability retirement in June 2010, claiming he was suffering
from PTSD that was caused in part by his work as a police
officer. He neglected to check the “industrial”
box on the claim form, but included an attachment that stated
that his work as a police officer triggered memories of his
military service and caused him to experience anxiety.
September 6, 2011, the City's psychiatric expert, Dr.
Mark Snyder provided his first report to the City following
his examination of Rodriguez. Dr. Snyder diagnosed Rodriguez
with PTSD as a consequence of his experiences with the Santa
Cruz Police Department and his time in the Marines. The
doctor opined that Rodriguez was substantially incapacitated
from the performance of his duties as a police officer.
City requested that Dr. Snyder reconsider the findings and
provided additional information to him, including the
ALJ's proposed decision denying Rodriguez's first
disability retirement claim in 2008. On September 28, 2011,
Dr. Snyder issued a second report criticizing Rodriguez's
credibility based on his failure to disclose some work he
performed outside the police force and his failure to inform
the police department about his psychological problems. Dr.
Snyder opined that Rodriguez was not substantially
City denied Rodriguez's second claim, and the case was
tried before an ALJ. The ALJ did not question the accuracy of
Rodriguez's PTSD diagnosis; however, she concluded that
he failed to establish that he was substantially unable to
perform the duties of a station officer as result of his
condition. The ALJ found that Rodriguez lacked credibility
because he failed to provide all of the relevant facts to the
medical professionals who examined him, and he failed to
remember the business and volunteer activities that he
participated in outside of his police work.
City adopted the decision of the ALJ and on January 12, 2012,
denied Rodriguez's second claim for industrial disability
petitioned the superior court for a writ of administrative
mandate seeking to set aside the City's decision, but the
court denied the petition. Rodriguez sought review of the
superior court's denial of his writ petition in this
court. In Rodriguez I, supra, this court found that
the superior court erred in its choice and application of the
standard of review relevant to the case, and remanded the
matter for reconsideration. (Rodriguez I, supra, 227
Cal.App.4th at pp. 1454-1455.)
remand, the superior court found that the basis for Dr.
Snyder's change of opinion that Rodriguez was not
substantially incapacitated by his PTSD to perform his duties
as a police officer was not supported by substantial
evidence. The superior court issued a writ of mandate
ordering the City to enter a new decision stating that
Rodriguez was incapacitated from the performance of his
duties as a police officer due to PTSD and to inform CalPERS
of its new decision. The superior court also ordered the City
to state whether it was disputing industrial causation.
City appealed the superior court's decision granting the
writ of mandate. This court affirmed the order.
(Rodriguez II, supra, at p. 30.) Following this
court's decision in Rodriguez II, the City
issued a letter on December 1, 2016, notifying CalPERS that
Rodriguez had been incapacitated and could not perform his
duties as a police officer. However, the City denied that the
disability was industrial.
April 18, 2017, Rodriguez filed an application for
determination of his claim for industrial causation with the
WCAB. He filed a petition for findings of
fact on April 24, 2017. Rodriguez argued that his disability
was industrial, and that his effective date of retirement was
December 1, 2016, the date on which the City admitted that he
was disabled and he started to receive retirement benefits.
Rodriguez asserted that his petition was timely under section
21174, because it was filed within two years of his effective