John Brenner v. Santa Barbara County Employees’ Retirement System Board of Retirement

Case Number

24CV03449

Case Type

Hearing Date / Time

Wed, 01/08/2025 - 10:00

Nature of Proceedings

Hearing on Petition for Writ of Mandamus

Tentative Ruling

For Petitioner John Brenner: Jane H. Oatman, Russell R. Ghitterman

For Respondent Santa Barbara County Employees’ Retirement System Board of Retirement: Meghan K. Woodsome, Alec R. Simpson, Cristal Rodriguez, Alan A. Blakeboro.

                       

RULING

For the reasons set forth herein, the petition of John Brenner for issuance of a writ of mandate is granted. The matter is remanded for the determination of whether Petitioner’s condition is service related.

Background

(1)       Background Facts

The principal underlying facts in this matter are essentially undisputed, although, as discussed below, Petitioner John Brenner’s (“Brenner”) burden of proof and the weight of the evidence are disputed.

Brenner was hired as a helicopter pilot, by the Santa Barbara County Sheriff Department (“SBSD”) on September 15, 2014. (Administrative Record, p. 1.) (Note: for convenience of writing, further citations to pages of the Administrative Record will be in the form “AR, p. [page no.].” Brenner was born on June 18, 1961, making him 53 years old at the time of hire. (Ibid.) Prior to being hired by SBSD, Brenner was in the military with duties including ensuring helicopters were prepared for flight, flying the helicopters, and performing some office work. (AR, pp. 42-43.) Upon retirement from the military, in 2011, Brenner received disability compensation, or benefits, for bilateral hearing loss, radiculopathy of his left lower extremity, degenerative disc disease of the lower spine, sinusitis, tinnitus, obstructive sleep apnea, and a meniscus tear of the right knee. (AR, p. 44.)

As a condition of employment with SBSD, Brenner successfully passed his County pre-employment physical examination with no restrictions for his back, legs, or feet, but did have one restriction imposed with respect to his hearing. (AR, p. 843.) As an employee of SBSD, Brenner’s duties included piloting a helicopter in support of law enforcement and fire department missions, and performed routine daily inspections and pre-flight inspections to ensure helicopters remained operational. (AR, pp. 843-844.) The operation of the helicopter required that Brenner keep all four extremities moving at the same time with constant vibration during flight. (AR, p. 844.)

On October 26, 2021, Brenner applied for disability retirement with SBCERS for the medical condition of: “L4-5 bulge osteophyte complex with a more focal left central protrusion resulting in severe left subarticular and moderate central stenosis. Radiculopathy causing continuous numbness in my lower left leg, left foot and right foot. (AR, pp. 2-3.) Brenner claimed the date of injury or onset was November 6, 2019. (AR, p. 4.) Brenner claimed that on October 20, 2021, during a visit with Dr. Molleken, his workers’ compensation primary treating physician, he was informed that his back had reached permanent and stationary status and permanently can no longer fly helicopters. (AR, p. 6.)

On March 22, 2023, after investigation and referral of Brenner to undergo independent medical examinations, the SBCERS’ Board referred his case for hearing before referee Irene P. Ayala (“Ayala”). (AR, pp. 70-72.) The issues to be heard by Ayala were:

“1. Is the applicant currently incapacitated from the performance of his usual duties by an orthopedic condition affecting his lumbar spine, right lower extremity, and bilateral feet and/or by a hearing loss condition?

“2. If the applicant is currently incapacitated, is such incapacity permanent?

“3. Does there exist within applicant’s pre-injury job class a permanent assignment, the duties of which applicant is substantially capable of performing?

“4. If applicant is permanently incapacitated, is the said permanent incapacity the result of injury or disease arising out of and in the course of employment with the County of Santa Barbara, and did that employment contribute substantially to the said incapacity?” (AR, p. 71.)

Ayala heard the case on September 14, 2023, Brenner being represented by Jane H. Oatman and SBCERS being represented by Chris Kroes. (AR, p. 2.)

Ayala heard testimony and reviewed evidence. She prepared a thorough recommendation, consisting of 39 pages and ultimately concluded:

“Based on the evidence presented in this case, I find that Applicant failed to establish substantial evidence to meet his burden of proof [that] his refusal to undergo surgery was reasonable; this, the condition of his lower back, left leg and bilateral feet is not a permanent disability. Applicant is, therefore, not eligible for a service-connected disability retirement.” (AR, p. 878.) Ayala recommended that Brenner’s application for service-connected disability be denied. (AR, p. 879.)

Brenner filed an objection to the recommendation, SBCERS filed a response to the objections, and, on February 28, 2024, the SBCERS Board adopted Ayala’s recommendation to deny Brenner’s application.

Brenner filed his petition for writ of mandamus on June 20, 2024.

Analysis

Brenner brings this petition for writ of mandamus pursuant to Code of Civil Procedure section 1094.5. (Petition, at p. 2.)

(1)       Standards of Review

“Where the writ is issued for the purpose of inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer, the case shall be heard by the court sitting without a jury. (Code Civ. Proc., § 1094.5, subd. (a).)

“The inquiry in such a case shall extend to the questions whether the Respondent has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the Respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.” (Code Civ. Proc., § 1094.5, subd. (b).)

“Where it is claimed that the findings are not supported by the evidence, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence. In all other cases, abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record.” (Code Civ. Proc., § 1094.5, subd. (c).)

“On ‘ “purely legal” ’ questions, we exercise independent judgment and a decision ‘must “be reversed if based on erroneous conclusions of law.” ’ [Citation.]” (Family Health Centers of San Diego v. State Dept. of Health Care Services (2023) 15 Cal.5th 1, 10.) “The interpretation of a statute presents a question of law.” (MCI Communications Services, Inc. v. California Dept. of Tax & Fee Administration (2018) 28 Cal.App.5th 635, 643.)

The parties agree that the administrative decision involved a “fundamental vested right,” and that this court “exercises its independent judgment upon the evidence disclosed in a limited trial de novo in which the court must examine the administrative record for errors of law and exercises its independent judgment upon the evidence. [Citations.]” (JKH Enterprises, Inc. v. Department of Industrial Relations (2006) 142 Cal.App.4th 1046, 1057.)

“[I]n applying “ ‘ “independent judgment,” ’ ” a trial court must accord a “ ‘ “strong presumption of . . . correctness” ’ ” to administrative findings, and that the “ ‘burden rests’ ” upon the complaining party to show that the administrative “ ‘ “decision is contrary to the weight of the evidence.” ’ ” [Citations.]” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 816-817.)

The court has considered all of the evidence and arguments presented by the parties in reach its ruling, whether or not specific items are discussed herein.

(2)       Brenner’s Burden of Proof                       

Brenner’s first argument is that the Board erred in requiring Brenner to carry the burden of proof regarding whether the refusal to undergo surgery was reasonable. Brenner argues that SBCERS bore the burden of proving that Brenner’s refusal was unreasonable because it is an affirmative defense.

In arguing that SBCERS bears the burden of proof on the issue, Brenner correctly cites legal authorities regarding affirmative defenses in general, and in the workers’ compensation authorities. Brenner also correctly points out that the relevant authorities permit the application of workers’ compensation laws by analogy, when there is no comparable provision in the County Employees Retirement Law (“CERL”). However, the ability to permit the application of workers’ compensation laws, when there are no comparable provisions in the CERL, does not mean that all of the workers’ compensation laws apply to CERL cases.

SBCERS argues that the workers’ compensation authorities are inapplicable because the CERL authorities consistently require an applicant to bear the burden of proof on all issues.

Workers’ compensation law serves a different purpose than CERL and is construed substantially in favor of workers. “Our conclusion comports with the Legislature’s command in section 3202 that the Act “ ‘be liberally construed by the courts with the purpose of extending [its] benefits for the protection of persons injured in the course of their employment.’ ”[ ] This command governs all aspects of workers’ compensation; it applies to factual as well as statutory construction. [Citations.] Thus, “ ‘[i]f a provision in [the Act] may be reasonably construed to provide coverage or payments, that construction should usually be adopted even if another reasonable construction is possible.’ ” (Arriaga v. County of Alameda (1995) 9 Cal.4th 1055, 1065.) The same is not true of construction under the CERL.

Under the CERL: “Notwithstanding Section 31720, any member covered under Section 31751 who is permanently incapacitated shall be retired for disability regardless of age if, and only if:

(a) The member’s incapacity is substantially caused by injury or disease arising out of and in the course of the member’s employment, or

(b) The member has completed a total of 10 years of service.

“ ‘Permanently incapacitated,’ ” for the purpose of this section, means that the member is unable permanently to engage in any substantial gainful employment.” (Gov. Code, § 31720.1.)

“[T]he burden of proving such conditions is on the Petitioner . . .” (Lindsay v. San Diego County Retirement Bd. (1964) 231 Cal.App.2d 156, 160.)

“The applicant bears the burden of proving his or her disability and that it is service related. [Citations.] “ ‘ “If the proof received, including any medical examination, shows to the satisfaction of the board that the member is permanently incapacitated,” ’ then the board shall retire the member. (Gov. Code, § 31724, italics ommitted.)’ ” [Citation.] If the board is not satisfied that the member is permanently incapacitated according to the proof received, the request for disability retirement must be denied. (Gov. Code, § 31725.)” (Flethez v. San Bernardino County Employees Retirement Assn. (2017) 2 Cal.5th 630, 636.)

Here, SBCERS is correct regarding the burden of proof. Brenner was required to prove that he suffered a permanent disability. Permanence is an essential element of Brenner’s claim. Thus, Brenner bears the burden of proof on that element. To establish permanence, Brenner was, and is, required to provide evidence that he did not unreasonably refuse to undergo the recommended surgery in order that any disability be rectified to the point of Brenner being able to perform his job. If it can reasonably be rectified, through surgery or otherwise, it is not permanent.

(3)       Offer of Surgery

Brenner argues that SBCERS was required to offer surgery to Brenner. In support, Brenner cites to Gallegos v. Workmen’s Compensation Appeals Bd. (1969) 273 Cal.App.2d 569 (Gallegos).

Briefly addressing Brenner’s argument: SBCERS was under no obligation to offer surgery to Brenner. Gallegos, and all the other cases that address the issue, place that burden on a claimant’s employer or the employer’s insurer when an employee is seeking workers’ compensation disability. SBCERS is not, and was not, Brenner’s employer or the employer’s insurer. SBCERS simply manages and provides pension benefits to public employees. There is no statute, or other law, that requires a pension plan to offer medical treatment to a claimant. Offering medical treatment to a claimant is simply not a function of SBCERS. Further, Brenner made it clear that he was unwilling to undergo surgery, which would make any offer of surgery futile.

(4)       Weight of the Evidence

“[T]o be “ ‘incapacitated for the performance of duty’ ” within [Government Code] section 21022 means the substantial inability of the applicant to perform his usual duties.” (Mansperger v. Public Employees’ Retirement System (1970) 6 Cal.App.3d 873, 876.)

The parties agree that Brenner’s current medical condition meets the standard for being incapacitated for the performance of his duties. The dispute is whether Brenner’s disability is permanent to comply with the requirements of Government Code section 31724.

It is appropriate to consider whether there is a course of treatment, including surgery, that is likely to improve Brenner’s condition so that he would again be able to perform his duties. (see Reynolds v. City of San Carlos (1981) 126 Cal.App.3d 208, 216.)

The following relevant medical evidence, some of which is from prior to being employed by SBSD, was presented:

June 17, 2011, x-rays of Brenner’s lumber spine based on subjective complaints of lower back pain with radiculopathy involving L-5 and decreased fine tough lateral leg and little toe. Findings: “Alignment is satisfactory. Vertebral body heights are maintained. No acute fractures seen. Minimal facet degenerative changes seen in the lower lumber spine. Minimal degenerative changes lower lumbar spine.” (AR, p. 205.)

July 15, 2014, audiometric evaluation record. (Note: Brenner’s claim of hearing related disability was abandoned and no longer relevant to this application. As such, no further treatment related to Brenner’s hearing deficits will be discussed in this ruling.)

August 19, 2014, Santa Barbara Health Status Report for pre-employment examination by the County of Santa Barbara for his position as a helicopter pilot. Brenner was cleared for employment after noting a hearing deficit. It was recommended that Brenner must wear hearing protection when working around excessively loud noises. (AR, p. 207.)

November 30, 2015, and February 1, 2016, progress notes from Matthew Gravett, PA, based on complaints of left-sided neck pain for the prior two to three weeks. Brenner reported no prior injury and claims to have “just woke up with it one day.” Brenner additionally reported intermittent left lower leg pain, worse with running. Pain is non-radiating and Brenner requested physical therapy. Brenner also reported a chronic cough for the past six months and ongoing right knee pain and left lumbar radiculopathy. He requested physical therapy. On February 1, 2016, Brenner reported intermittent low back pain with some radiculopathy and claimed to feel better after completing physical therapy. Brenner claimed to have recently re-exacerbated his back symptoms by doing housework. The review of symptoms noted no back pain, neck pain, joint pain, muscle pain, or decreased range of motion. (AR, pp. 222-227.)

April 17, 2017, progress notes from Phillip Zinni, DO for right hip and groin pain that began in November 2016. The resulting diagnosis was: 1. Acquired leg length discrepancy. Applicant was to continue with physical therapy to include body alignment therapy. 2. Idiopathic scoliosis. 3. Right hip strain. He elected to continue with conservative treatment options. (AR, pp. 229-232.)

November 7, 2019, medical reports of occupational medicine specialist Mark Pomerantz, MD reflect a fairly sudden onset of low back pain the prior day while at work. Brenner reported that he had a mild low back strain about 10 years prior that resolved within a few weeks, and denied any ongoing low back problems or other medical problems. Examination revealed low back pain, back muscle spasm, and idiopathic scoliosis. Brenner was placed off work until November 11, 2019, and physical therapy was ordered. (AR, pp. 238-242.)

November 11, 2019, medical reports of Dr. Pomerantz reflect that Brenner’s lower back pain had improved significantly and was mild to moderate. Brenner denied numbness, tingling, or left leg pain, but did have some tingling transiently in the left leg two days prior. He was given home exercises and told to remain off work through November 18, 2019. (AR, pp. 247-249.)

November 19, 2019, medical reports of Dr. Pomerantz reflect that Brenner’s lower back pain continued to improve and described the severity of the pain as mild and achy. The pain is intermittent and brief. Brenner reported getting occasional twinges into the left buttock and tingling in the left thigh. He denied any pain below the knee. The notes indicate that physical therapy had been ordered two weeks prior but had not yet been authorized or started. Brenner was released to return to work on a modified duty status from November 19, 2019, through December 4, 2019, with work restrictions of lifting no more than 20 pounds and no climbing of ladders. (AR, pp. 251-253.)

December 3, 2019, medical reports of Dr. Pomerantz reflect that the lower back pain continued to improve with the pain being mild, intermittent, and brief. Brenner had been working on modified duty but has been unable to operate a helicopter during the recent wildfires. Brenner reported occasional twinges into the left buttock and tingling in the left thigh. Brenner denied any pain below the knee, but reported tight and limited back mobility. He was released to full work duties with no restrictions. (AR, pp. 255-257.)

December 4, 2019, by way of a patient history form for Sims Physical Therapy, Brenner reported lower back pain and SI strain, beginning on November 6, 2019, as the result of “coming out of the shower.” (AR, pp. 259-260.)

December 18, 2019, progress notes from Dr. Pomerantz reflect that Brenner’s lower back pain was improving and that he was tolerating full-duty assignment. Brenner reported some occasional twinges into his left buttock and tingling in the left thigh. Brenner reported that he felt he could perform is normal job functions. (AR, pp. 267-269.)

January 2, 2020, initial evaluation at Star Physical Therapy reflect that Brenner had complaints of back pain, which started at work, that consisted of soreness, tightness, and a sharp ache which varied depending on activities. Brenner rated his pain as a seven of ten that is mainly located over the left side. Brenner felt most limited when bending down to reach the floor and with twisting. Brenner reported that he did not have a past history of sciatica or chronic back pain. (AR, pp. 273- 274.) Brenner continued physical therapy with Star through February 3, 2020.

January 21, 2020, progress notes from Dr. Pomerantz reflect that x-rays were essentially unremarkable other than mild osteoarthritis. Brenner’s pain diagram indicated he was performing the same work at his job as before his injury and that he could now perform his regular duties, but that he was still experiencing tightness in his lower back. (AR, pp. 275-279.)

February 18, 2020, Brenner reported to Dr. Pomerantz that his left-sided low back pain has persisted despite additional physical therapy. The pain radiates into his left buttock and left hip and is exacerbated with forward flexion. Brenner reported being able to walk as long and far as he likes and even do some jogging. He denied any pain below the knee. Brenner reported no prior spine injuries. The assessment was sprain of the sacroiliac joint, low back pain, lumbar spondylosis, and left lumber radiculopathy. Dr. Pomeratz recommended an MRI of the lumbar spine. Brenner was advised that he may continue full duty without restrictions, although he was currently on medical leave for cataracts. (AR, pp. 283-286.)

An MRI was done on June 2, 2020, and revealed a L4-5 bulge osteophyte complex with a more focal left central protrusion resulting in severe left subarticular and moderate central stenosis. (AR, pp. 287-288.)

June 17, 2020, Brenner reported to Dr. Pomerantz that he was still off work due to bilateral cataract surgery that had gone well, and that he expected to return to work at the end of June. He reported that his left-sided low back pain persisted. He was able to walk as long and far as he likes and has been able to do some bicycling. He was taking no medication for the pain and was not limited in his activities of daily living. Dr. Pomerantz assessed left lumbar radiculopathy, low back pain, and lumbar disc herniation with radiculopathy. Dr. Pomerantz included: “I reviewed his MRI with him which shows a significant disc bulge osteophyte and broad left central protrusion that results in severe left subarticular stenosis. I explained to him the meaning of the report. We discussed treatment options including conservative watchful waiting, epidural steroid injections, and even microlumbar discectomy. He would like to see a spine surgeon to discuss his options. I have given him a referral. Full duty without restrictions although he is still off work pending release from his cataract surgeon. (AR, pp. 289-291.)

August 24, 2020, Brenner was evaluated by board-certified neurosurgeon Phillip Kissel, MD. By way of a letter from Dr. Kissel to Dr. Pomerantz, Dr. Kissel described the evaluation. (AR, pp. 293-296.)Dr. Kissel diagnosed an L4-5 herniated disc with underlying stenosis and left lower extremity resolving radiculopathy. In his discussion section, Dr. Kissel stated the following:

“I have reviewed the situation in detail with Mr. and Mrs. Brenner and, at this time, I have advised him to consider surgical decompression for both the discectomy and the stenosis. This would entail an L4-5 left hemilaminectomy and microdiscectomy. I have explained the nature of this type of surgery as well as the potential risks, complications, and alternatives. He and his wife will contemplate whether to move ahead with the surgery.” (AR, p. 295.)

October 19, 2020, Brenner was evaluated by orthopedic surgeon Allan Moelleken, MD, for a second opinion spine surgery consultation. Dr. Moelleken noted that Brenner’s pain is restricting his quality of life and that, overall, he has reached a plateau. Treatment options were discussed, including “live with it, physical therapy, chiropractic therapy, acupuncture therapy, multiple pain management techniques, and surgery. . . . Surgery is reasonable with L4-5 MLD but given patient is improving then nonsurgical care is preferred.” (AR, pp. 298-301.)

Dr. Moelleken examined Brenner again on December 2, 2022, and provided a progress report. The exam was performed via telemedicine due to Covid-19 pandemic guidelines. Brenner reported that his symptoms have remained unchanged, that he has completed around 16 physical therapy sessions that provided insufficient relief, and that he has not had any chiropractic therapy, acupuncture, injections, or surgery since the injury. At this point, Dr. Moelleken advised: “Surgery is reasonable with L4-5 MLD but patient makes it clear that he would prefer nonsurgical care is preferred.” For diagnostic and therapeutic reasons, a TF Epidural steroid injection to the left L5-S1 level was requested. (AR, pp. 336-340.)

January 5, 2021, progress notes of Dr. Moelleken reflect that another telemedicine appointment took place. Brenner reported that his symptoms remain unchanged from the prior examination. Dr. Moelleken diagnosed lumbar HNP. Dr. Moelleken again advised that: “Surgery is reasonable with L4-5 MLD but patient makes it clear he would prefer nonsurgical care is preferred.” (AR, pp. 348-353.) Dr. Moelleken examined Brenner again on February 16, 2021, and Brenner reported that his symptoms remain unchanged. Dr. Moelleken again stated that surgery is reasonable. (AR, pp. 366-369.) Dr. Moellekan examined Brenner again on March 16, 2021. The report indicates the same condition and the same recommendations, including that surgery is reasonable. (AR, pp. 376-381.)

On March 15, 2021, Brenner treated with chiropractor John Quinn on referral by Dr. Moelleken. During follow-up chiropractic visits, Brenner reported some mild improvement. (AR, pp. 370-373; 382-386.)

April 19, 2021, progress notes of Dr. Moelleken reflect that Brenner’s symptoms remained unchanged. Chiropractic therapy had completed three weeks prior with good relieve and improvement to the bilateral lower extremity symptoms. Three sessions of massage therapy had provided moderate, temporary, relief. Dr. Moelleken noted: “Patient makes it clear [Brenner] would like to hold off on any surgical intervention at this time.” Dr. Moelleken again discussed the same treatment options, including noting that surgery is reasonable. Dr. Moelleken additionally stated: “I continue to recommend and request a non-surgical pain management consultation with Dr. Hartman for patient’s lumbar spine, to make interventional recommendation and treatment. Patient is not interested in surgery at this time. Patient is a good candidate for nonsurgical treatment.” (AR, pp. 387-390.)

May 7, 2021, progress notes of Dr. Moelleken reflect that Brenner’s symptoms remained unchanged. Brenner reported ongoing sessions of massage therapy with moderate, temporary, relief. Brenner “makes it clear he would like to hold off on any surgical intervention at this time.” Dr. Moelleken noted: “I continue to recommend and request a non-surgical pain management consultation with Dr. Hartman for patient’s lumbar spine, to make interventional recommendation and treatment. Patient is not interested in surgery at this time. Patient is a good candidate for nonsurgical treatment.” (AR, pp. 396-399.)

May 11, 2021, Brenner reported to Dr. Moelleken that his symptoms remained unchanged since the prior visit. Brenner again made it clear that he would like to hold off on any surgical intervention. Brenner “felt a plateau of his pain overall.” He also reported that the lower extremity complaints are more bothersome than his low back pain. Dr. Moelleken again discussed treatment options and noted that surgery is reasonable. (AR, pp. 400-404.)

June 1, 2021, Brenner was evaluated by pain management specialist, R. Jason Hartman, DO. Dr. Hartman diagnosed (1) HNP, lumbar; (2) Radiculopathy, lumbar; (3) Stenosis, lumbar; and (4) Spondylosis w/o lumbar. Dr. Hartman noted: “Per Dr. Moelleken, surgery is reasonable with L4-5 MLD, but patient makes it perfectly clear he will not consider surgery at this time.” Dr. Hartman recommended that Brenner proceed with TFESI left L5-S1, but that Brenner prefers to hold off on injection at this time. (AR, pp. 408-412.)

July 23, 2021, progress notes of Dr. Moelleken indicate that Brenner had still not proceeded with the recommended epidural steroid injection to the left L5-S1. Brenner indicated that he wanted to see how he would do with acupuncture which he had finished four sessions of with temporary relief. The injection was again recommended, which Brenner accepted and underwent with Dr. Hartman on August 6, 2021. Brenner reported no relief and indicated that he did not want any other interventional treatment, stating that the pain is tolerable. (AR. pp. 429-444.)

September 8, 2021, Brenner underwent a Qualified Medical Evaluation (“QME”) with orthopedic surgeon Jeffrey M. Lundeen, MD. Brenner described constant low back pain at 2-3/10 in severity with occasional exacerbations to 4-5/10 pain, and intermittent radiation of pain into his left buttocks. He also described some constant numbness and tingling in his left great toe and along the lateral calf. Brenner reported that he has had some improvement in his conditions since he stopped working. Dr. Lundeen diagnosed (1) Neck pain, non-radicular; (2) Low back pain, radicular, and (3) Right knee iliotibial band syndrome. Dr. Lundeen concluded: “Based on the history as provided by the patient, the review of available medical records, and the performance of a thorough physical examination, it is my opinion that within reasonable medical probability that this patient’s low back pain condition is the result of the 11/06/19 injury involved in this claim. It is my opinion that within reasonable medical probability that the cumulative trauma injury involved in this claim to 11/28/20 caused permanent aggravation to this patient’s low back pain condition.” Brenner was deemed permanent and stationary. Treatment options were discussed. With regards to surgery, Dr. Lundeen stated: “It is my opinion that future medical care for this patient’s neck pain condition does not include steroid injections and does not include surgery. With regards to this patient’s low back pain condition, should this patient develop progressive low back pain and radicular symptoms to include unrelenting leg pain or profound or progressive neurologic deficit, future medical care should allow fore the judicious use of lumbar epidural steroid injections in an effort to avoid lumber spine surgery. With progressive low back pain and radicular symptoms to include unrelenting leg pain or profound or progressive neurologic deficit that fails to respond to non-surgical treatment, future medical care should allow for re-evaluation by a board certified orthopedic spine surgeon or neurosurgeon, and should allow for lumbar spine surgery.” (AR, pp. 445-465.)

October 20, 2021, a permanent and stationary report by Dr. Moelleken gave to opinion that Brenner’s condition was well-stabilized and unlikely to change substantially in the next year, with or without medical treatment.  However, it was yet again mentioned that surgery is reasonable, but that Brenner will not consider it. (AR, pp. 471-745.)

November 2, 2021, Dr. Moelleken indicated that Brenner is permanently disabled due to lumbar spine disc herniation and that no accommodations would allow Brenner to perform his work duties. (AR, p. 198.)

June 1, 2022, orthopedic surgeon Mark Ganjianpour, MD, performed an independent medical evaluation (“IME”) of Brenner, for “industrial injuries in the form of cumulative trauma from September 30, 2014, to November 28, 2020, and on November 6, 2019.” Dr. Ganjianpour set forth a medical history and list of records reviewed. Dr. Ganjianpour opined that Brenner “has L4-L5 severe left subarticular stenosis with broad based left paracentral disc protrusion with bilateral facet arthritis causing impingement and radiculopathy at the L4-L5 nerve root distribution as seen on the MRI of the lumbar spine performed on 6/2/20.” Brenner’s “orthopedic conditions are remaining the same. He has undergone conservative care and epidural injections, but they have provided limited temporary relief. Lumbar spine surgery was recommended, but [Brenner] was not interested in pursuing operative treatment. However, even if he did undergo lumbar spine surgery, [Brenner’s] condition would still be incapacitating. He would likely see improvements in his symptoms, but he would still be incapacitated from the duties required of him as an Air Support Pilot.” “[Brenner’s] incapacities are permanent. He has undergone conservative care and epidural injections without significant relief. Surgery has been recommended, but he is not interested in pursuing this. Regardless, if he had surgery, it would not significantly improve his lumbar spine condition to a degree that he could perform the duties of an Air Support Pilot.” (AR pp. 489-533.)

August 18, 2022, orthopedic surgeon Gregory Tchejeyan, MD performed an IME of Brenner. Dr. Tchejeyan provided a medical history and list of records reviewed. Dr. Tchejeyan opined that Brenner has (1) Degeneration of the lumbar spine, with central spinal canal stenosis and foraminal stenosis at L4-5; and 92) Left lumbar radiculopathy at L4. Dr. Tchejeyan opined: “It is within reasonable medical probability that [Brenner] may benefit from an additional lumbar epidural and facet injections/treatments. There are objective Orthopedic MRI findings indicating left lateral recess stenosis at the left L4-5 level. A selective nerve root block could be both diagnostic and/or therapeutic. The epidural he received in August 2021 did not provide much relief, however a second attempt is warranted. Regarding his low back pain, caused by degenerative lumbar facet joints, facet block injections and rhizotomies, can be helpful to reduce facet-related low back pain. Depending on the effectiveness of the future epidurals and/or facet blocks, [Brenner] may benefit from future surgery. There are 2 surgical options, based on if the symptoms are predominate back versus leg. These surgeries are either (1) left L4-5 foraminotomy and decompression (for predominate leg pain) or (2) anterior lumbar fusion surgery (for back greater than leg symptoms). Initially, when the symptoms started in November of 2019, he reported 9 out [of] 10 leg pain. The leg pain has since subsided to a manageable level, however the numbness persists. He now complains to 80:20, back to leg pain/symptoms. If [Brenner] elected for surgery, which he has made clear HE DOES NOT want, anterior lumbar spinal fusion at L4-5 with an anterior cage and indirect decompression would, more likely than not, relieve both his back and leg symptoms and would be the surgical solution of choice.” “Based on the available information, it is within reasonable medical probability that [Brenner] is NOT incapacitated for alternative assignments where the physical demands are equivalent to that of any clerical/administrative position. The modified work alternative should preclude prolonged sitting and standing and limit repetitive bending/twisting/stooping. With reasonable medical certainty, [Brenner] cannot fly a helicopter due to his foot numbness.” “Based on the available information, it is within reasonable medical probability that [Brenner’s] complaints of back pain and leg numbness would likely materially improve with additional medical treatment, namely a lumbar spinal fusion. Therefore, his current condition, with respect to his back and leg numbness, is temporary. With reasonable medical probability, [Brenner] will NOT be able to return to his usual duties even with reasonable accommodations.” “With regard to [Brenner’s] back pain and leg numbness, a lumbar facet block, epidural steroid injection, and/or facet rhizotomy may alleviate the back and leg symptoms. Based on the outcome and longevity of symptom resolution, an L4-5 anterior spinal fusion with indirect decompression may resolve both, the back and leg symptoms, permanently.” Dr. Tchejeyan also opined that Brenner’s condition is the result of p preexisting degenerative lumbar spine condition and would have progressed with our without the County employment. (AR, pp. 554-569.)

September 2, 2022, and December 6, 2022, progress notes of Dr. Moelleken do not differ in any significant way from prior reports.  (AR, pp. 570-577.)

March 1, 2023, supplemental report of Dr. Tchejeyan indicates Dr. Tchejeyen opines: “Should [Brenner] undergo lumbar spinal decompression and lumbar fusion his current condition, with respect to his back pain and leg numbness, will more likely than not materially improve where [Brenner] could return to his usual activities without any accommodations.” Dr. Tchejeyan again stated that he believes Brenner’s conditions is the result of the natural progression of his underlying orthopedic condition. (AR, pp. 585-586.)

Further reports from Dr. Moelleken did not substantively differ from previous reports until June 8, 2023. On that date, Dr. Moelleken provided a supplemental report requested by Brenner’s attorney. Dr. Moelleken reviewed the IME reports by Drs. Ganjianpour and Tchejeyan, as well as the supplemental report of Dr. Tchejeyan, and opined: “It is reasonable to not have surgery. I certainly cannot guarantee [Brenner’s] condition improves with surgery. If he has surgery he would probably not be able to return to work.” (AR, pp. 161-162.)

As to why he declined to undergo surgery, Brenner testified:

When asked what his current back symptoms are, Brenner responded: “So I have lower back pain predominantly on my left. It’s  - - I would term it as manageable. You know. I consistently - - it’s been about a 2 of 10.” (AR, pp. 698-699.)

“I shouldn’t have surgery. I’ve known people that have had surgery. It didn’t go well, my wife’s. I’ve had the epidurals. They were diagnostic and it didn’t fix any of my problems, the numbness, the back pain. And I felt that back surgery would not fix my numbness or my back pain.” (AR, pp. 701-702.)

When asked, “Has any doctor told you surgery would be a cure for your problems in your back and legs and foot?”, Brenner replied, “No, they have not.” (AR, p. 701.)

“My opinion is that unless I have foot drop, unless I have incontinence, unless I had pain that is excruciating and doesn’t go away, I shouldn’t have the surgery.” (AR, p. 736.)

When asked, “Is there any number of doctors who would have to be, a certain doctor telling you, yes, you have to have surgery or a certain number of doctors, yes, you should have surgery before you would do so?”, Brenner replied, “No.”

Despite arguments, and findings in the recommendation, to the contrary, no physician other than SBCERS’ IME doctor, Dr. Tchejeyen, recommended surgery as a remedy for Brenner’s condition. The other physicians simply discussed surgery as a possible treatment option. Additionally, Dr. Moelleken’s repeated statement that “surgery is reasonable,” does not mean that refusal to have surgery is unreasonable, or even that it is a preferable treatment option. It is simply one option among others. Further, Dr. Moelleken did not say, in any of his reports, that surgery would allow Brenner to return to his regular duties of flying a helicopter. In fact, in the last report, discussed above, Dr. Moelleken specifically states that even if he had surgery, Brenner would likely be unable to return to work. This is not, as SBCERS implies, a contradiction from any of his other statements. It is common knowledge that back surgery is not something that should be taken lightly. A refusal to undergo such a procedure, without an extremely high probability of complete success, is reasonable.

Ayala’s recommendation is heavily based on the incorrect belief that surgery was recommended by several of Brenner’s physicians. (AR, p. 867, 869, 875, 876, 878, etc.) As stated directly above, the evidence does not show that surgery was recommended. Even if, in some cases, it was listed under the “recommendations” section of the reports, it was only included as an option, along with other options such as “live with it.” The recommendation also makes an unreasonable assumption that surgery would alleviate Brenner’s symptoms to the level that he would be able to return to work. The sole evidence presented, that surgery would be more likely than not allow Brenner to return to flying helicopters, comes by way of a single sentence in a report from SBCERS’ IME physician. While it is true that the trier of fact may accept the testimony of only one expert, the court does not find the IME physician hired by SBCERS to be more credible than the other physicians combined. The other physicians all had opinions that were fairly consistent with each other. And, again, none of them told Brenner that surgery would be likely to allow him to return to flying helicopters.

Brenner was repeatedly told that he is a good candidate for non-surgical treatment. And while that treatment typically only provided limited relief, it provided enough that Brenner did not feel that surgery would be worth the risk. Brenner’s position in this regard is objectively reasonable and heavily supported by the weight of the evidence.

Having exercised its independent judgment, giving substantial weight to the Board’s factual findings, and considering all the evidence presented, the court finds that the weight of the evidence does not support the finding of the board. Brenner met his burden of proof that his refusal to undergo surgery was reasonable and that he suffers from a permanent disability. The writ will be granted.

(5)       Service Connection

Both parties present argument regarding Brenner’s conditions being either connected to his service or not.

Because the Board incorrectly determined that Brenner’s disability is not permanent, because he unreasonably refused surgery, it did not reach the issue of whether the disability is connected to his service with SBSD. The matter will be remanded for the Board to rule on this issue in the first instance.