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McCormick v. Public Employees’ Retirement System

California Court of Appeals, First District, First Division

October 25, 2019

Cari MCCORMICK, Plaintiff and Appellant,

         [254 Cal.Rptr.3d 224] Trial Court: Lake County Superior Court, Trial Judge: Hon. David W. Herrick (Lake County Super. Ct. No. CV 416903)

Page 429


         Benjamin K. Karpilow, Law Office of Richard J. Meechan, Santa Rosa, for Plaintiff and Appellant.

         Matthew G. Jacobs, General Counsel, John Shipley, Senior Attorney, California Public Employees’ Retirement System, for Defendant and Respondent


         Humes, P.J.

Page 430

          Plaintiff Cari McCormick worked as an appraiser for Lake County. She developed certain medical symptoms, including pain, fatigue, and dizziness, that seemed to be caused by her office environment. After her employer denied her request to work in a different location, she applied for disability retirement. Adopting the decision of an administrative law judge (ALJ), the Board of Administration (Board) of the California Public Employees’ Retirement System (CalPERS) denied her application on the basis that her condition did not prevent her from performing her job duties at a theoretical different location. McCormick filed a petition for a writ of administrative mandate, which the trial court denied.

         On appeal, McCormick claims that the trial court’s decision must be reversed because it applied the wrong legal standard. We agree. We hold that employees are eligible for CalPERS disability retirement under Government Code [1] section 21156 when, due to a disability, they can no longer perform their usual duties at the only location where their employer will allow them to

Page 431

work, even if they might be able to perform those duties at a theoretical [254 Cal.Rptr.3d 225] different location. We therefore reverse and remand for further proceedings.[2]



          McCormick began working for Lake County in 2002. Her primary job duties involved appraising real property for property-tax purposes. She performed most of her work in an office in the Lakeport courthouse, although she sometimes conducted field inspections.

          In 2010, McCormick started to experience physical pain throughout her body and feel "constantly fatigued." Her symptoms worsened at the end of 2011, and on April 10, 2012, she could not finish a full day of work. On the previous day, the building had to be evacuated because of fumes caused by the roof being tarred. A consistent "horrible smell" persisted, and other people complained as well. McCormick felt much better if she was at home or outside, and she began working only half days.

         When McCormick originally sought medical treatment, she was led to believe that the problem was hormonal. In May 2012, she had a hysterectomy and recovered at home for six weeks, during which she felt much better. When she went back to work, however, "the smell was still there," and her symptoms returned when she was in the office. Her superiors moved her to different locations in the courthouse, but the changes did not help. She used about 500 accrued hours of leave.

          McCormick was eventually told by her superiors that she "was a liability" and "should stay home." She filed a claim for workers’ compensation and, beginning in late 2012, took an extended leave of absence under the Family Medical Leave Act. She continued to ask for accommodations, such as permission to telecommute, believing she "just needed to be somewhere where [she] felt safe, knowing that [she] was able to breathe the air." But her superiors declined to let her work anywhere other than in the courthouse.

          As part of the workers’ compensation process, McCormick was tested for allergies and examined by a specialist in environmental health, who told her that her problems were caused by chemical exposure. Testing of the courthouse revealed no mold and showed acceptable air quality, however, and her

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workers’ compensation claim was denied. In May 2013, Lake County terminated her employment because she had exhausted her medical leave.

         In late 2013, McCormick submitted an application for disability retirement to CalPERS.[3] In the application, she stated her disability was "[respiratory] and systemic health problems as a result of exposures in indoor environment" at the courthouse. She also explained she could "work in another building as long as [she] remain[ed] asym[p]tomatic" but her employer "would not provide [her] a place outside" the courthouse. CalPERS denied the application in December 2014.[4]

         [254 Cal.Rptr.3d 226] McCormick appealed the decision, and an administrative hearing on the appeal was held in June 2016. In addition to her own testimony about her condition, McCormick relied on medical evidence from Massoud Mahmoudi, D.O. Dr. Mahmoudi examined McCormick in February 2013, in connection with her workers’ compensation claim, and diagnosed her with "[a]llergic rhinitis" and an "allergic-like reaction of unknown etiology." The specific trigger of her symptoms was unclear, although they were associated with her workplace, and he concluded that "avoidance [of] the work ... environment [was] the best remedy."

          In his initial report, Dr. Mahmoudi concluded that McCormick was "temporarily partially disabled" but did not have a "permanent impairment." At the hearing, he explained he had assumed in forming his initial assessment that she would be able to find a different location in which to work. While his diagnosis remained unchanged, he had since concluded that McCormick was permanently disabled to the extent she was "unable to work [at the courthouse] due to her symptoms."

          CalPERS presented medical evidence from Soheila Benrazavi, M.D., who examined McCormick in June 2014. The exam revealed no physical abnormalities, and Dr. Benrazavi concluded that McCormick did not have any physical or mental condition that would prevent her from performing her job duties. At the hearing, Dr. Benrazavi explained that, while there was no doubt McCormick was experiencing real symptoms that were associated with her workplace, "if the ...

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