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Rodriguez v. Workers' Compensation Appeals Board

California Court of Appeals, Sixth District

August 27, 2019

JOSAFAT RODRIGUEZ, JR., Petitioner,
v.
WORKERS' COMPENSATION APPEALS BOARD, CITY OF SANTA CRUZ et al., Respondents.

          Workers' Compensation Appeals Board WCAB Case No.: ADJ10830482

          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, Miranda Dugan

          Greenwood, P.J.

         Petitioner 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.

         The 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).)

         Following 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.[1]

         We find that Rodriguez's claim for industrial causation was timely. We therefore annul the Board's decision.

         I. Statement Of The Facts And Case

         Rodriguez 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 dead.

         When 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.

         In 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.

         Rodriguez 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 health reasons.

         After 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.

         On 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.

         The 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 incapacitated.

         The 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.

         The City adopted the decision of the ALJ and on January 12, 2012, denied Rodriguez's second claim for industrial disability retirement.

         Rodriguez 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.)

         On 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.

         The 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.

         On April 18, 2017, Rodriguez filed an application for determination of his claim for industrial causation with the WCAB.[2] 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 ...


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