Opinion
NOT TO BE PUBLISHED
Sup.Ct.No. CV013910
MORRISON, J.
Timothy A. Sheaffer appeals from denial of his petition for a writ of mandate to set aside the decision denying his application for industrial disability retirement or to reinstate him to his former position as a deputy district attorney. He contends the trial court’s decision is procedurally flawed because the court refused to grant his request for a statement of decision and without one it cannot be ascertained that the trial court employed the proper standard of review. As to the merits, Sheaffer contends the evidence established his psychological disability was permanent and service-connected, or if the evidence was insufficient, the Board of Retirement of the San Joaquin County Employees’ Retirement System (the Board) had a duty to develop a fuller record on these issues.
We find the trial court erred in failing to issue a statement of decision. Although such a failure is often treated as reversible per se (Miramar Hotel Corp. v. Frank B. Hall & Co. (1985) 163 Cal.App.3d 1126, 1129 (Miramar Hotel)), in this case we find no miscarriage of justice permitting a reversal. (Cal. Const., art. VI, § 13.) The only evidence offered as to the permanence of the disability, that it lasted three years without treatment, is legally insufficient to establish a permanent disability. Since Sheaffer failed to establish a permanent disability, the trial court did not err in denying the petition for a writ.
FACTUAL AND PROCEDURAL BACKGROUND
Beginning in 1985, Sheaffer was a deputy district attorney for San Joaquin County. In late February 1997, he was walking to lunch with a colleague to discuss a major case. While crossing the street, a truck “clipped” him. Sheaffer did not fall and worked the rest of the day, leaving early. Once home, he was very stiff and went to the doctor. The doctor diagnosed a bruised left foot and told Sheaffer to take the next day off work.
Sheaffer subsequently returned to work, but only for a short time. The following week, he attended the funeral of an 18-year-old family member who had been murdered. He stood throughout the hour-long service. Following the service, his legs could not move; “my legs were like two stumps of wood.”
Sheaffer progressively got worse. He continued treatment at Kaiser and then switched to UC Davis after Kaiser “washed [its] hands of me.”
In June 1998, Sheaffer applied for both service-connected and nonservice disability retirement. Sheaffer claimed he had the following symptoms stemming from the traffic accident: reduced function and sensations ranging from numbness to extreme pain in right leg; reduced sensation and function in left leg; back pain, at times uncontrollable; limited control of bladder and bowels; incidents of acute angle closure, resulting in blindness, due to pain killers. Sheaffer claimed he could not be in a car for more than 20 minutes or drive over 55 miles per hour because the vibrations aggravated his symptoms. It had taken one year of treatment and rehabilitative effort to achieve this level of recovery.
Dr. Craig Lovett, an orthopedic surgeon, saw Sheaffer for an independent medical evaluation in connection with his disability retirement claim. Dr. Lovett found Sheaffer to be an excellent historian, “but documented numerous nonphysiologic signs of behavior overlay and symptom magnification.” He found all objective findings normal, except a mild preexisting back problem. There was no evidence of neurologic deficit or structural damage. Dr. Lovett found Sheaffer not substantially incapacitated from performing his job.
Dr. Lovett agreed with previous doctors who had suspected or found functional overlay. In particular, Dr. John Bissell, a neurologist, reported two prior instances in which Sheaffer’s symptoms were exaggerated in relation to the medical findings and felt Sheaffer “has obvious and gross functional overlay.” In Dr. Lovett’s medical opinion, Sheaffer’s exaggerated pain perception and dramatization was a learned pattern of illness behavior. “It appears that Mr. Sheaffer is suffering from major psychosocial issues, and I would strongly recommend a psychiatric evaluation for him.”
In this context, “functional” means “nonorganic; i.e., a functional ailment is one that is not caused by a structural defect.” (Stedman’s Medical Dictionary (5th Law. ed. 1982) p. 565.) The ALJ defined “functional overlay” as “a psychiatric/psychological etiology.” As discussed below, the term is not fully defined or explained in the record.
At the hearing before an administrative law judge (ALJ), Sheaffer contended he was physically incapacitated. Dr. Ernest Johnson testified Sheaffer had an L-4 root compression radiculopathy, either a herniated disk or bone spur pressing on the nerve root. He testified the limitations in Sheaffer’s physical activities were permanent. Dr. Johnson disagreed with the clinical impressions of the radiologists who performed an MRI and found no cord compression.
At the beginning of the hearing, Sheaffer sought to introduce a report from a psychologist, Dr. Luigi Piciucco, that suggested Sheaffer suffered from a psychological disability. The ALJ granted the motion of real party in interest San Joaquin County Employees’ Retirement Fund (the Fund) to exclude the report. The ALJ found the proffer was untimely since the report had not been discovered until the morning of the hearing although it had been prepared months earlier.
The Bylaws of the San Joaquin County Employees’ Retirement Association require an applicant to furnish a physician’s report and any other written evidence that will be used in support of the application within 90 days of filing the application.
Dr. Lovett also testified, reiterating the findings of his report that from a neurologic or orthopedic standpoint there was nothing wrong with Sheaffer. He testified that most of Sheaffer’s complaints of pain and limitation were functional in nature. Pain did not differ depending on whether its cause was organic or psychological. Dr. Lovett believed Sheaffer might benefit from a psychological evaluation; there was none in the medical records.
The ALJ found Sheaffer suffered from a psychological or psychiatric incapacity (the functional overlay) that substantially impaired him from performing the duties of his position as a deputy district attorney. Sheaffer had not, however, established that his incapacity was permanent or that his constellation of symptoms were attributable to his employment. Sheaffer’s request for either service-connected or nonservice-connected disability retirement was denied.
Sheaffer objected to the ALJ’s proposed decision. He argued there was ample evidence of permanence because he had been incapacitated for three years, Dr. Johnson testified his incapacity was permanent, and Dr. Lovett did not testify it was not permanent. He also argued the evidence established the disability was physical and arose from the accident in February 1997, thus from his employment.
The Fund objected to the finding of a psychological disability because Sheaffer had not alleged such.
The ALJ overruled all objections. The Board accepted the ALJ’s decision.
Sheaffer petitioned for a writ of mandate to set aside the decision denying industrial disability retirement or to reinstate Sheaffer to his former position. Sheaffer did not contest the finding that his disability was psychological not physical. He challenged only the findings that his disability was not permanent or service-connected.
Before the matter was submitted, Sheaffer requested a statement of decision. Among the issues he requested a statement of decision on were whether his functional overlay disability was permanent and whether it was service-connected.
The court’s ruling stated: “The court finds the Administrative Record supports the finding that the disability was not permanent or job related. Therefore, the Writ of Mandate is DENIED.” The court denied the request for a statement of decision because “the Writ is subject to independent judicial review in the appellate process.”
DISCUSSION
I. Standard of Review
The trial court’s review of the decision denying Sheaffer’s application for disability benefits pursuant to his petition for a writ of administrative mandate (Code Civ. Proc., § 1094.5) was governed by the independent judgment rule. (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32.) The trial court applies its independent judgment to the Board’s administrative decision, but with a strong presumption the Board acted properly. (Code Civ. Proc., § 1094.5, subd. (c); Fukuda v. City of Angels (1999) 20 Cal.4th 805, 812, 817.) This court reviews the trial court’s factual findings for substantial evidence. (Id. at p. 824.) We make our own independent determinations on questions of law. (Oldham v. Kizer (1991) 235 Cal.App.3d 1046, 1057.)
II. Statement of Decision
Sheaffer contends the judgment must be reversed and remanded for a new trial on procedural grounds. He contends the trial court erred in denying his request for a statement of decision; it is impossible to determine if the trial court applied the independent judgment standard of review; and the administrative findings are insufficient.
The San Joaquin County Employees’ Retirement Fund (the Fund) argues, without citation to authority, that the court rendered a statement of decision by incorporating the decision of the Board, which adopted the findings of the ALJ. The Fund does not address the standard of review issue.
Sheaffer made a timely request for a statement of decision, prior to the submission for decision. (Code Civ. Proc., § 632.) The trial court denied the request. That denial was error. “It is, of course, well established that Code of Civil Procedure section 632 applies to administrative mandamus proceedings in which the trial court exercises its independent judgment in reviewing the record. [Citations.]” (Cooper v. Kizer (1991) 230 Cal.App.3d 1291, 1301.)
A statement of decision can also serve to show that the trial court used the proper standard of review. Generally, we presume judgments and orders are correct and reversible error must affirmatively be shown. (Walling v. Kimball (1941) 17 Cal.2d 364, 373.) Although both parties set forth the proper standard of review, the record shows the trial court used the wrong standard of review. The court’s ruling stated the administrative record supported finding the disability was not permanent or job related. This language suggests the deferential substantial evidence test, whether substantial evidence, contradicted or uncontradicted, supports the finding. (People v. Sherman (2007) 42 Cal.4th 79, 88.) Further, one of the cases the trial court cited in support of its denial of a statement of decision, City of Coachella v. Riverside County Airport Land Use Com. (1989) 210 Cal.App.3d 1277, 1291, held a statement of decision was not required where the trial court decides only questions of law. That is the case where the court reviews the administrative record under the substantial evidence test. (Friends of Lake Arrowhead v. Board of Supervisors (1974) 38 Cal.App.3d 497, 518.)
We are thus presented with two errors: the failure to issue a statement of decision and review under the wrong standard. In determining the effect of these errors, we are mindful of the constitutional provision: “No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13.)
In an administrative mandamus proceeding where the trial court uses the wrong standard of review, the error is subject to harmless error analysis and will be found harmless error where the result would be the same under the proper standard. (See Marmion v. Mercy Hospital & Medical Center (1983) 145 Cal.App.3d 72, 97-98 [applying independent judgment test instead of substantial evidence test harmless where substantial evidence supported decision to terminate doctor]; California Teachers Assn. v. Governing Board (1977) 70 Cal.App.3d 833, 845 [no prejudice from application of independent judgment test where same result under proper substantial evidence test].) We recognize that applying a substantial evidence test instead of independent judgment is different than the reverse, however, when as in this case, there is a complete lack of evidence of an essential element like proof of permanent disability, the standard of review makes no difference.
The failure to issue a statement of decision, however, is usually considered reversible per se. (Karlsen v. Superior Court (2006) 139 Cal.App.4th 1526, 1530-1531; Whittington v. McKinney (1991) 234 Cal.App.3d 123, 127; Miramar Hotel, supra, 163 Cal.App.3d 1126, 1129.) In Miramar Hotel, the court reasoned a statement of decision was necessary to frame the issues for appeal, to assist the appellate court in review, and to permit the parties to make proposals and objections to the trial court’s statement of decision. (Id. at p. 1129.) Insisting on strict adherence to the requirements of Code of Civil Procedure section 632 imposed no burden on trial courts because the court could designate a party to prepare the statement of decision. (Ibid.) A concurring justice noted his reluctance to adopt a per se rule of reversibility absent a miscarriage of justice, but did so in order to stem the growing practice of failure to issue a statement of decision. (Id. at pp. 1130-1131.)
We may not ignore the constitutional requirement of a miscarriage of justice as a prerequisite for reversal, when as in this case, there simply is not, and cannot be, a miscarriage of justice. First, unlike the cases finding failure to issue a statement of decision is reversible error, here the trial court was not the original fact finder. Without a statement of decision, we can assume the trial court adopted the ALJ’s findings. (See Bechtel v. Board of Retirement (1980) 102 Cal.App.3d 9, 14-15 [where no statement of decision requested, assume trial court adopted referee’s findings].) Second, the parties agree on the issues on appeal, whether there is substantial evidence to support the finding that Sheaffer failed to show his disability was permanent or service-connected.
In Angelier v. State Board of Pharmacy (1997) 58 Cal.App.4th 592 (Angelier), a pharmacist sought administrative mandamus to overturn a decision to revoke his license. On appeal he challenged the sufficiency of the statement of decision and questioned whether the trial court applied the correct standard of review of the administrative decision. The statement of decision stated in part: “‘The [Board’s] decision . . . is supported by the Board’s findings, which are in turn supported by the weight of the evidence.’” (Id. at p. 597.) The appellate court found this statement of decision sufficient. “What the trial court’s statement of decision lacked in specificity, it made up for by its statement that the Board’s findings are supported by the weight of the evidence. In effect, the statement of decision incorporates by reference the findings of ultimate fact made by the Board; the statement of decision is therefore, in effect, detailed enough.” (Id. at p. 598, fn. omitted.)
We recognize that Angelier is distinguishable in two regards. First, there was a statement of decision; here the trial court expressly declined to provide one. Second, the appellate court found the trial court applied the proper standard of review. The reference to “the weight of the evidence” in the statement of decision and the trial court’s remarks at the hearing indicated it applied the independent judgment test. (Angelier, supra, 58 Cal.App.4th at p. 598.)
Despite these differences, we find no miscarriage of justice in declining to issue a statement of decision or apparently applying the wrong standard of review. This is so because we can treat the trial court’s failure to issue a statement of decision as adopting the findings of the ALJ and because, as we explain below, the finding on the issue of permanence of the disability would be the same regardless of the standard of review applied. While we find the trial court’s errors harmless, we do not condone the practice of refusing to issue a statement of decision. In many cases the error will not be harmless. For example, in this case there was conflicting evidence as to the nature of Sheaffer’s disability. Had he challenged the ALJ’s finding that his disability was psychological, not physical, the trial court’s errors might require reversal. Sheaffer would have been entitled to an independent review of whose testimony was more credible, that of Dr. Johnson or Dr. Lovett.
Foreseeing that this court may find the trial court incorporated the findings of the ALJ, Sheaffer contends those findings are inadequate. The ALJ found Sheaffer did not establish his disability was permanent; the record presented was inadequate to support such a finding. “Cause does not exist to find, as a reasonable medical probability, that applicant’s condition is permanently incapacitating . . . .” Sheaffer contends the finding is insufficient because the ALJ did not define the meaning of “permanent.” He argues that without that definition, this court cannot scrutinize that conclusion. As explained below, even adopting Sheaffer’s definition of permanent, the ALJ’s finding must stand.
III. Permanence of Disability
Government Code section 31720 sets forth the requirements for disability retirement for county employees. It provides in part: “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, or [¶] (b) The member has completed five years of service, and [¶] (c) The member has not waived retirement in respect to the particular incapacity or aggravation thereof as provided by Section 31009. . . .” The first requirement is that the applicant be “permanently incapacitated for the performance of duty.”
In considering an application for disability retirement, the major issue is the question of permanent incapacity, “for we need proceed no further if that is lacking.” (Curtis v. Board of Retirement (1986) 177 Cal.App.3d 293, 297.) The burden of proof is on the claimant to show permanent incapacity. (Harmon v. Board of Retirement (1976) 62 Cal.App.3d 689, 691.)
The meaning of “permanent” in Government Code section 31720 is not defined. Sheaffer contends the meaning of “permanent” for disability retirement of county employees is the same as that for disability retirement of state employees. In the context of disability retirement, Government Code section 20026 defines “disability” and “incapacity for performance of duty” to mean “disability of permanent or extended and uncertain duration, as determined by the board, . . . on the basis of competent medical opinion.” The Fund does not challenge this definition of permanent, so we shall accept it. Sheaffer contends his functional overlay met this test; it was of extended and uncertain duration. At the time of the hearing, it had lasted for three years, an extended duration. Neither doctor who identified the condition, Drs. Bissell and Lovett, knew how to treat the problem nor made any attempt to, indicating its uncertain duration.
Sheaffer confuses the absence of evidence with evidence showing his functional overlay is a disability of uncertain duration. Schaeffer sought disability retirement on the basis of a physiological disability, relying on Dr. Johnson’s expert opinion. The ALJ, however, rejected Dr. Johnson’s opinion. He found more credible Dr. Lovett’s opinion that from an orthopedic or neurologic standpoint, there was nothing wrong with Sheaffer. Agreeing with Dr. Bissell’s assessment, Dr. Lovett found Sheaffer’s complaints of pain and physical limitations were due to functional overlay. He testified he did not doubt that Sheaffer suffered pain and physical limitation. If there was a valid cause for the pain, Sheaffer could not function as a trial attorney.
From this testimony, and the medical records that showed no abnormal physical findings but that other doctors suspected functional overlay, the ALJ concluded Sheaffer was incapacitated. There was no evidence from which to draw a conclusion as to the permanence of the condition. There was no testimony or documentary evidence that it was permanent. Using, as Sheaffer proposes, the definition in Government Code section 20026, the finding of a permanent incapacity must be based on “competent medical opinion.” Further, the Bylaws of the San Joaquin County Employees’ Retirement Association require the physician report submitted by the applicant include the likelihood of permanent disability. Here, there was no medical opinion as to permanence.
The Fund argues expert testimony on permanence was required, citing two workers’ compensation cases holding that the probable future history of a disease belongs entirely within the scope of expert testimony. (Sweeney v. Industrial Acc. Com. (1951) 107 Cal.App.2d 155, 159; Assurance Corp. v. Industrial Acc. Com. (1930) 106 Cal.App. 39, 42.)
Sheaffer responds the workers’ compensation cases are inapposite because the definition of permanence under workers’ compensation law is different than that under retirement law. Next, he contends that while the question of impairment requires medical opinion, whether an employee is incapable of performing his duties is a question for the employer, not a physician, because the employer will have to accommodate the employee. “Logically, the subsidiary question of whether the employee is permanently incapacitated does not require expert testimony either.” We find nothing logical in Sheaffer’s argument. Whether an incapacity is permanent has nothing to do with the duties of the job; it has to do with the nature of the incapacity. The question of the impairment’s duration and whether it can be alleviated by treatment are medical questions and require expert opinion.
Dr. Lovett recommended Sheaffer undergo a psychological evaluation, suggesting there may be some treatment possible. Sheaffer invites this court to take notice that psychological conditions are often more uncertain as to prognosis than orthopedic problems. Even if that proposition is true in the abstract, it proves nothing as to the duration of Sheaffer’s functional overlay or whether it is treatable. In this regard, we note the record is less than clear of exactly what a functional overlay consists. When asked to describe it, Dr. Lovett indicated there were five Waddell tests used to differentiate between objective impairment and subjective disability with respect to low back pain. The purpose, Dr. Lovett explained, was “to try to find out if what they’re saying makes sense.” Given this vague definition of functional overlay, expert testimony is necessary to determine if it is permanent. Indeed, both the Government Code and the Bylaws of the Association require it.
We have not found the term “functional overlay” in a medical dictionary or in the Diagnostic and Statistical Manual of Mental Disorders.
Sheaffer contends that if the evidence is insufficient to establish permanence, it was the Board’s duty to provide that evidence. Specifically, he contends the Board “dropped the ball” by failing to have him examined by the proper specialist. Sheaffer relies on quotations taken from workers’ compensation cases and argues the retirement board is similar to the workers’ compensation court. Because Sheaffer has taken these quotations out of context, they do not aid his position.
Sheaffer relies heavily on the following language from West v. Industrial Acc. Com. (1947) 79 Cal.App.2d 711, 719 (West): “The commission is a court [citation] deliberately clothed by the Legislature with administrative facilities to permit it to develop the facts in reference to matters not generally known to laymen. It was not intended that the litigants before it be impaled upon the results of their lack of familiarity with the often occult problems of medical science frequently arising in compensation cases. As a consequence the commission may not leave undeveloped matters which its acquired, specialized knowledge should identify as requiring further evidence. In this case the resolution of the issues of injury and disability was not patent. Medical evidence thereon was therefore required. Under these circumstances the commission had the responsibility of seeing to it that such evidence was reasonably complete, whether by use of its own medical experts or otherwise.”
Sheaffer reads this language as requiring the Board to fill any evidentiary gaps in his case. He does not explain how this view is consistent with the allocation of the burden of proof to the claimant. (Harmon v. Board of Retirement, supra, 62 Cal.App.3d 689, 691.) Moreover, in the context of the facts of West, supra, 79 Cal.App.2d 711, the court’s language meant the commission could not award compensation absent substantial evidence in the record and it had a duty to assure the record was complete enough to support its findings.
In West, a practical nurse was awarded temporary disability after she claimed her back was injured when her employer’s porch swing fell while she was in it. The employer challenged the award, in part contending the commission’s findings were not supported by substantial evidence. The court agreed. (West, supra, 79 Cal.App.2d 711, 720.) The evidence in favor of the employee was her own testimony as to her pain and a doctor’s report containing no medical history but simply reporting the patient complained of pain. (Id. at pp. 715-716.) There was ample evidence contrary to the findings of the commission. After the accident the nurse resumed her usual physical activity and did not seek medical treatment for one week. She had a history of using back injuries to claim compensation. X-ray examinations revealed only a congenital anomaly and slight arthritic development. Her medical history provided possible causes for her back discomfort, diabetes and bowel disorders. The condition of her back was arthritic and chronic and nothing indicated the fall in the swing aggravated or exacerbated the existing condition. (Id. at pp. 716-717.) The court found the nurse’s testimony alone insufficient; expert testimony on a hidden physical impairment of the back was required. (Id. at p. 718.) Moreover, her testimony was contradicted by her own activities. (Id. at p. 720.) In finding no reasonable basis in the evidence for the commission’s finding, the court made the statement on which Sheaffer relies. We read it to mean the commission had a duty to see that the evidence was reasonably complete before it made a finding based on that evidence. The court did not say the commission, or here the Board, had a duty to make the claimant’s case for him. Rather, in speaking of the commission’s duty, the court noted not all claimants were entitled to compensation and the commission had a duty to deny it to those not so entitled. (Id. at pp. 719-720.)
Finally, in his reply brief, Sheaffer contends the absence of evidence as to the functional overlay disability is invited error. He asserts he had evidence about the psychological disability, a report from Dr. Piciucco, but the Fund successfully objected to its admission on timeliness grounds. He contends the exclusion of this report was improper because any prejudice caused by its lateness could have been cured by a continuance. Sheaffer’s unfortunate habit of inexcusable delay continues to hurt his case. “Points raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument. [Citation.]” (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453.) Not only did Sheaffer fail to raise this issue in his opening brief, he failed to raise it in his writ petition before the trial court although there is express statutory authority for the trial court to consider such an issue. (Code Civ. Proc., § 1094.5, subd. (e).) Absent a compelling reason for the failure to raise the issue properly in a timely manner -- and Sheaffer offers none -- we shall not consider it.
The only evidence of permanent incapacity was that the ill-defined incapacity lasted three years without any treatment. That evidence is insufficient as a matter of law to establish permanence. Given this state of the record, the result on the question of permanence would be the same regardless of the standard of review applied by the trial court. For this reason, the trial court’s error as to the proper standard of review was harmless.
Since there was no permanent incapacity, “we need proceed no further.” (Curtis v. Board of Retirement, supra, 177 Cal.App.3d 293, 297.) The trial court properly denied the petition for the writ.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON , Acting P.J., RAYE , J.