The opinion
Filed 12/3/25; Certified for Publication 12/29/25 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
ALBERTO MENDOZA, 2d Civ. No. B327347
(Super. Ct. No. 56-2021-
Plaintiff and Appellant, 00550840-CU-WM-VTA)
(Ventura County)
v.
BOARD OF RETIREMENT OF
THE VENTURA COUNTY
EMPLOYEES’ RETIREMENT
ASSOCIATION,
Defendant and Respondent.
COUNTY OF VENTURA/RISK
MANAGEMENT,
Intervener and Respondent.
Alberto Mendoza appeals the trial court’s denial of his
petition for a writ of administrative mandate challenging the
decision of respondent Board of Retirement of the Ventura
County Employees Association (the Board) to deny his
application for a service-connected disability retirement based on
two work-related back injuries. (Code Civ. Proc., § 1094.5; Gov.
Code, §§ 31720-31752.) In denying the petition, the court agreed
with the Board’s finding that appellant’s disability was a result of
his unreasonable refusal to undergo recommended medical
treatment for his injuries, as contemplated in Reynolds v. City of
San Carlos (1981) 126 Cal.App.3d 208 (Reynolds) and Labor
Code1 section 4056. Appellant contends the court misapplied the
law and that the evidence does not support the finding he
unreasonably refused recommended medical treatment. We
affirm.
Facts And Procedural History
In 2012, appellant began employment as a Ventura County
Deputy Sheriff and was assigned to the Todd Road Jail Facility.
On December 30, 2014, appellant was working at the facility
when he slipped while going up stairs, “which caused discomfort
in [his] lower back.” On May 27, 2015, he suffered another injury
to his back when an inmate he was attempting to subdue, kicked
him in the right waist area.
On May 20, 2015, appellant underwent a magnetic
resonance imaging (MRI) of his lumbar spine. The MRI film
showed degenerative disc disease at the L5-S1 level and a disc
herniation abutting the right S1 nerve root. Some of the soft jelly
material (the nucleus pulposus) also extruded from the disc at the
L5-S1 level and was abutting the right S1 nerve root.
1 Undesignated statutory references are to the Labor Code
unless otherwise stated.
2
On June 19, 2015, appellant was examined by Dr. Robert
H. Fields, M.D., the State Panel Qualified Medical Evaluator
(QME) in appellant’s workers’ compensation case. (See § 4062.2.)
Dr. Fields recommended that appellant be referred to a spine
specialist and stated there was a “[h]igh likelihood [appellant]
will require surgical intervention at this level and if deemed
necessary, should be provided with care without delay.”
Appellant was subsequently evaluated by Dr. Brian
Grossman, an orthopedic surgeon. Dr. Grossman initially
recommended physical therapy and an epidural injection. In a
November 2015 report, Dr. Grossman stated: “I had a long
discussion with [appellant] regarding treatment options. . . . He
has failed to improve with rest, physical therapy, anti-
inflammatory and analgesic medications, physical therapy, and
an epidural injection. . . . His prognosis for resolution of
symptoms with continued nonsurgical care is guarded. At this
point, I believe that he is reaching Maximal Medical
Improvement. The patient was advised that surgery for his
condition would entail a microscopic discectomy. He does not
wish to pursue surgery as he knows at least two people in his
department who have had surgery on their back and never
returned to their usual job.”
On November 17, 2015, appellant’s treating physician, Dr.
Sam Bakshian, M.D., issued an evaluation report with a request
for authorization of treatment. Dr. Bakshian stated: “Clearly,
the patient has had marked aggravation of his back and leg
symptoms following [an] epidural injection. . . . At this point, I
am concerned that the disc extrusion may have displaced. There
is no question in my mind that the patient will require surgical
intervention and I am formally requesting authorization for a
3
hemilaminectomy microdiscectomy right side L5-S1. . . . The
patient does understand.”
The requested surgery was authorized by the County of
Ventura (the County), but appellant declined to undergo the
procedure. On May 25, 2016, appellant filed an application with
the Ventura County Employees’ Retirement Association (VCERA)
for a service-connected disability retirement. After the County
notified VCERA of its intent to challenge the application, VCERA
informed appellant it was assigning the application to its hearing
officer for an administrative hearing. A second MRI of
appellant’s spine was conducted on December 9, 2015.
In a July 2016 reevaluation report, Dr. Fields indicated
that “[t]he patient states he is worse” and “was indicated for
surgery, but deferred. I had a long discussion with him about
this, and he is just simply scared and this is based on what I
believe to be bad information. He asked his friends, and looked
on the internet for results. [¶] Looking at his exam and his gait,
this patient is in need of surgery.” Dr. Fields added: “This
patient should go ahead with surgery. I told him I am not his
doctor and I generally don’t like to make recommendations to my
QME patients, but I have seen him before and I advised that I
don’t see him getting better without surgery. [¶] He has failed
epidural blocks and oral steroids in the past, and he is a young
man. I think he should reconsider. [¶] In my opinion, he has
seen two qualified doctors, both of which are more than capable of
making him better, and with the information I have to date, I
would expect his results would be good to excellent in the 90%
range.”
In a supplemental report, Dr. Fields stated: “I am now
asked if the patient is in need of surgery, should the patient
4
reconsider his refusal? My answer is ‘yes,’ as I stated in my
report. I indicated that I would expect his results to be good and
excellent in the 90% range. [¶] For an isolated disc for a one-
sided discectomy and laminectomy, the average good and
excellent results are 90%. So, one would consider that he would
fit this profile as he is a healthy young man without significant
risk factors. [¶] I was asked whether I would agree that the risk
of this surgery is inconsiderable in view of the seriousness of the
injury. All lumbar surgeries have risks . . . . [¶] However, I
think the risk-benefit ratio is highly in the patient’s favor. [¶]
Also, I think the patient would have good to excellent results,
meaning he could go back to work probably without restriction or
with limited restrictions after surgery.”
Appellant continued to decline to undergo the authorized
surgery. On June 9, 2017, appellant underwent a third MRI. In
a June 28, 2017 report, Dr. Bakshian stated: “I have compared
his 2015 MRI with the current MRI which clearly demonstrates
progression of the discopathy at L5-S1. As I previously
suspected, his pain syndrome is not only related to the disc
herniation (and notable extrusion) at the L5-S1 level, but also
secondary to the disfunction [sic] of the disc itself. . . . [¶] At this
point, in order to address both back pain and leg pain in this
individual, he will require a spinal fusion at L5-S1 with a
decompression exploration of the nerve root and neurolysis as
necessary. Alternatively, if the patient is prepared to consider, a
laminectomy discectomy and neurolysis at L5-S1 can be
performed which will invariably help with his radiculopathic
pain, however, unlikely to help with his mechanical pain. In
either case, I don’t believe that it would be safe for the patient to
return back to perform his duties as a Deputy Sheriff[.]”
5
In a July 2017 progress report and request for
authorization, Dr. Bakshian opined that appellant’s continuing
pain was due to “a combination of annular tearing, disc
protrusion and scar formation around the right L5 and S1 nerve
root.” Based on the progression of appellant’s condition, Dr.
Bakshian sought authorization for a laminoforaminotomy
discectomy, rather than the hemilaminectomy microdiscectomy
that had previously been approved. Dr. Bakshian also noted that
“[t]he patient expresses [that] he wishe[s] to proceed with
surgery.”
Dr. Bakshian’s request for a laminoforaminotomy and
discectomy at the County’s expense was denied following
utilization review. (See §§ 4610, subd. (a), 5307.27.) The request
was denied due to “insufficient current objective medical evidence
in the record to support the necessity of surgical intervention.”
In a November 2017 report, Dr. Bakshian stated: “At this point,
the patient does have a deposition pending. Hopefully, this will
resolve the issues as he does need surgical intervention. I have
discussed with him options for surgical intervention; however,
the patient does understand that with surgery, there’s no
guarantee of full recovery which in all likelihood he will not be
able to return back to his current employment. The patient does
understand. He needs some time to think about his options. He
will contact me in the next four to six weeks to check in on
status.”
On March 15, 2018, appellant was examined by Dr.
Richard Rosenberg, M.D., an orthopedic surgeon. In his report,
Dr. Rosenberg stated that “[b]ased on my review of [appellant’s]
records, at one point he was a candidate for surgery, although,
with the passage of time, his condition has improved to the point
6
where I would no longer consider him a candidate for surgery.”
Dr. Rosenberg opined that “[b]ased on the Job Analysis for a
Deputy Sheriff, [appellant] would be precluded from rare or
infrequent lifting of 50 to 100 pounds. He would certainly be
precluded from lifting over 100 pounds. In my opinion,
[appellant] is currently able to carry out the remainder of the job
duties that are described in the Job Analysis.” The doctor also
noted that “a home exercise program would be advisable for him
and, with this program, additional improvement in his lower
back condition can be expected.”
In a November 2018 progress report, Dr. Bakshian stated
that appellant still reported “constant” pain but was “not
interested in surgery currently” and “would like to postpone that
to a future date.” Dr. Bakshian added that appellant “was
advised to continue with his home exercise program to increase
functionality and mobility. Once he changes his mind regarding
surgery for lumbar spine he will notify us.”
After reevaluating appellant in January 2019, Dr.
Rosenberg reported that appellant was “not doing a home
exercise program because the pain in his back increased around
August of 2018.” Dr. Rosenberg concluded that appellant “has
lost . . . less than 5% of his preinjury lifting capacity” and “would
benefit for a work hardening program [i.e., a physical therapy
and conditioning program designed to return an employee to
work] for his low back to increase his ability for lifting and
potentially returning back to work as a deputy sheriff.”
The administrative hearing on appellant’s application for a
service-connected disability retirement was held on December 12,
2019. Appellant testified on his own behalf and did not call any
other witnesses. Appellant testified among other things that he
7
had declined to undergo the authorized surgery because his
initial symptom of urinary incontinence had resolved and he
“believe[d] that [his] body was getting better.” Appellant also had
“[m]ultiple concerns” because “[y]ou don’t know the outcome of
the surgery.” He disagreed with Dr. Rosenberg’s conclusion that
he had only lost 5 percent of his lifting capacity. On cross-
examination, he reiterated that he elected not to undergo the
surgery recommended by Drs. Bakshian, Grossman, and Fields
“because the urinary incontinence [had] stopped.” He denied that
Dr. Fields told him he would likely be able to return to work if he
underwent the surgery. He declined to undergo the work
hardening program recommended by Dr. Rosenberg because he
“didn’t see any medical benefit to it” and “when [he tries] to do
the exercises that Dr. Bakshian recommends, it hurts, the pain
increases.”
The County called radiologist Stephen Rothman, M.D., and
Tracey Pirie, the Sheriff’s Bureau Manager. Dr. Rothman
essentially testified that there was no indication of spinal nerve
compression in appellant’s June 9, 2017 MRI results. Pirie
testified that the Sheriff’s Department could “probably”
accommodate the restrictions imposed by Dr. Rosenberg if
appellant returned to work.
At the conclusion of the hearing, the record was left open to
allow appellant to present an additional report from Dr.
Bakshian. In a May 2020 supplemental report, Dr. Bakshian
stated that he agreed with Dr. Rothman’s conclusion that the disc
extrusion at L5-S1 had been resolved. Dr Bakshian disagreed,
however, that this meant “there is essentially nothing wrong with
the patient’s back.” Dr. Bakshian “noted that the patient does
have fairly significant disc height loss at L5-S1 and a large area
8
of high intensity signal within the annulus at L5-S1,” which
“signifies that the internal structure of the disc is no longer
properly functioning and that represents discopathy at the L5-S1
level.” The doctor added that “[b]y virtue of there being a disc
extrusion at the L5-S1 level signifies that a portion of the disc
annulus tore and that the central disc material (nucleus
pulposus) extruded through the annulus[.]” Dr. Bakshian opined
that “[i]nitially, a decompression and discectomy would have been
a viable option. At this point, it is my opinion that not only a
decompressive procedure is required but also a neurolysis and
likely a spinal fusion at the L5-S1 level.”
On October 22, 2020, the hearing officer issued his
proposed findings of fact and recommended decision denying
appellant’s application for service-connected disability retirement
benefits. The hearing officer found that “Applicant refused to
undergo reasonable and appropriate medical treatment that had
a high probability of success (90 percent according to Dr. Fields),
and which could have permitted Applicant to go back to work. He
refused surgery despite the recommendations of three physicians
. . . . By refusing to undergo surgery when it was initially
authorized, Applicant might very well have made his condition
worse because according to Dr. Bakshian, ‘at this point Applicant
[sic] not only requires decompressive procedure, he also requires
a neurolysis and possibly a fusion.[”] [Citation.] In addition,
Applicant made a unilateral decision [to] stop the home exercise
program that was recommended and encouraged by Dr.
Bakshian. Finally, Applicant refused to participate in the Work
Hardening Program that was recommended by Dr. Rosenberg
and offered to Applicant by the County of Ventura.” The hearing
officer also found that “Applicant’s testimony that he declined to
9
go forward with the surgery because his incontinence had abated
is not credible because Applicant continued to complain of
constant pain . . . even after he no longer had incontinence.” The
hearing officer concluded that appellant was thus not entitled to
service-related disability retirement benefits, as contemplated in
Reynolds, supra, 126 Cal.App.3d 208. The Board subsequently
adopted the hearing officer’s proposed decision and accordingly
denied appellant’s application for service-connected disability
retirement benefits.
Appellant petitioned for a writ of administrative mandate.
In its ruling denying the petition, the court reasoned: “The
determinative factor in all of this from the Court’s perspective is
[appellant’s] refusal to consent to surgery in 2016, and the
consequences of that decision as discussed in Reynolds . . . . In
2015 and 2016, [appellant] was evaluated by Drs. Bakshian and
Fields[,] both of whom concluded that [appellant] needed surgery
for his back problem. Dr. Fields was particularly emphatic about
the need for surgery and its probable good-excellent result. To be
sure, no surgery is without risk, but both Dr. Bakshian (a
treating physician) and Dr. Fields (an evaluating physician) are
very firm in stating that this was the needed treatment. . . .
What probably could have been fixed in 2015 or 2016 by surgery
had worsened by 2017. The surgery recommended in 2017 was of
a different type, and one which likely would not have resolved
[appellant’s] injury such that he could return to work. His
decision in 2015 and 2016 to refuse the treatment which probably
would have allowed him to return to work is a sufficient basis to
deny this Petition.”
10
Discussion
Appellant contends the trial court’s decision to deny his
administrative writ petition based on the finding that he
unreasonably refused medical treatment misapplies the law and
is in any event not supported by substantial evidence. We
conclude otherwise.
Under the County Employees Retirement Law of 1937, an
employee is entitled to disability retirement benefits if he or she
is “permanently incapacitated” physically or mentally from the
performance of his or her duties. (Gov. Code, § 31720.) In order
to qualify for a service-connected disability retirement, the
applicant’s permanent incapacity must be “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. . . .” (Id., subd. (a).)
Because “employees have a fundamental vested right in
their retirement benefits” (County of Alameda v. Board of
Retirement (1988) 46 Cal.3d 902, 915), in adjudicating appellant’s
writ petition the trial court was required to exercise its
independent judgment to decide whether benefits were properly
denied. (Valero v. Board of Retirement of Tulare County
Employees’ Assn. (2012) 205 Cal.App.4th 960, 965 (Valero).) In
exercising its independent judgment in this regard, “a trial court
must afford a strong presumption of correctness concerning the
administrative findings, and the party challenging the
administrative decision bears the burden of convincing the court
that the administrative findings are contrary to the weight of the
evidence.” (Fukuda v. City of Angels (1999) 20 Cal.4th 809, 817
(Fukuda).)
11
“‘After the trial court has exercised its independent
judgment in weighing the evidence, our task is to review the
record to determine whether the trial court’s findings are
supported by substantial evidence. [Citation.] The trial court’s
decision should be sustained if it is supported by credible and
competent evidence. [Citation.]’” (Valero, supra, 205 Cal.App.4th
at p. 965.) Under these circumstances, “‘the question for a
reviewing court becomes whether the evidence compels a finding
in favor of the appellant as a matter of law. [Citations.]
Specifically, the question becomes whether the appellant’s
evidence was (1) “uncontradicted and unimpeached” and (2) “of
such a character and weight as to leave no room for a judicial
determination that it was insufficient to support a finding.”
[Citation.]’. [Citation.]” (Id., at p. 966)
The trial court denied appellant’s writ petition based on the
common law doctrine of avoidable consequences/mitigation of
damages, as set forth in Reynolds and section 4056. Pursuant to
that doctrine, an application for service-connected disability
retirement benefits is properly denied if the applicant’s disability
is caused, continued, or aggravated by their unreasonable refusal
to undergo medical treatment for their injuries. (Reynolds,
supra, 126 Cal.App.3d at p. 216, citing § 40562; see also State
2 Section 4056 states: “No compensation is payable in the
case of the death or disability of an employee when [the] death is
caused, or when and so far as his disability is caused, continued,
or aggravated, by an unreasonable refusal to submit to medical
treatment, or to any surgical treatment, if the risk of the
treatment is, in the opinion of the appeals board, based upon
expert medical or surgical advice, inconsiderable in view of the
seriousness of the injury.” Although section 4056 is a workers’
compensation provision, the statute “merely codifies the common
12
Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026,
1047, discussing § 4056 (State Dept. of Health Services).) The
purpose of applying the doctrine in this context “is to prevent
employees with treatable injuries from resorting to unfounded
beliefs, ungrounded fears or personal idiosyncrasies or
convictions to reject proffered treatment. [Citation.]” (Flores v.
Workmen’s Comp. Appeals Bd. (1973) 36 Cal.App.3d 388, 392-
393.)
Appellant contends the court erred in relying on the
doctrine of avoidable consequences/mitigation of damages as set
forth in Reynolds and section 4056 because in Reynolds it was
deemed likely that the employee could still return to work if he
underwent the surgery he had unreasonably refused. (Reynolds,
supra, 126 Cal.App.3d at p. 218.) He asserts that the doctrine
cannot be applied to him because it is essentially undisputed that
the initial surgery he refused to undergo would no longer be
effective and that the surgeries Dr. Bakshian subsequently
recommended would not enable him to perform all of the duties of
his job as a Deputy Sheriff.
We are not persuaded. The doctrine of avoidable
consequences/mitigation of damages logically applies not only
when it is likely that the employee could still return to work by
undergoing recommended medical treatment, but also when it is
likely the employee could have returned to work but for their
unreasonable refusal to timely submit to treatment that may no
longer be effective due to the passage of time. Under the latter
law rule requiring mitigation of damages [citation], which is
properly applied in determining eligibility for disability
retirement.” (Reynolds, supra, 126 Cal.App.3d at p. 216.)
13
scenario, a retirement board can reasonably find that the
employee’s inability to return to work is not a result of their
work-related injury, but rather a result of their unreasonable
refusal to submit to medical treatment for that injury. (Gov.
Code, § 31720, subd. (a); § 4056.)
Moreover, appellant cannot be heard to complain the
evidence does not support the court’s findings that he
unreasonably refused to undergo the hemilaminectomy
microdiscectomy that was approved in November 2015, and that
he probably would have been able to return to work had he
undergone that surgery. His opening brief does not set forth any
of the evidence favorable to those findings. Most notably, he fails
to mention that Drs. Bakshian, Fields, and Grossman all
recommended that he undergo the surgery, or that Dr. Fields had
also opined that appellant would probably be able to return to
work if he did so. We agree with the Board that appellant thus
forfeited his claim of insufficient evidence. (Huong Que, Inc. v.
Luu (2007) 150 Cal.App.4th 400, 409-410.)
In any event, the evidence on this issue does not compel a
finding in appellant’s favor as a matter of law. (Valero, supra,
205 Cal.App.4th at p. 966.) Although appellant refers us to Dr.
Bakshian’s deposition testimony that his refusal of the
recommended surgery was not unreasonable, that testimony
plainly conflicts with the doctor’s statement in his
November 2015 evaluation report that “[t]here is no question in
my mind that the patient will require surgical intervention[.]”
Dr. Bakshian’s deposition testimony on this issue is also
contradicted by the opinions of Dr. Fields that appellant was
likely to be able to return to work if he underwent the approved
14
surgery and that the risks of that surgery were outweighed by
the benefits.
Moreover, in issuing its ruling the trial court was required
to presume the correctness of the findings underlying the Board’s
decision. (Fukuda, supra, 20 Cal.4th at p. 817.) Although the
court focused on appellant’s refusal to undergo the approved
surgery, the Board also found appellant (1) had unreasonably
refused to participate in the work hardening program; (2) had
unreasonably stopped performing the home exercise program
recommended by Dr. Bakshian; and (3) “requires further medical
care and treatment.” Because substantial evidence supports
these findings, appellant fails to establish that his writ petition
was erroneously denied.
Disposition
The trial court’s order denying appellant’s petition for a
writ of administrative mandate is affirmed. Respondents shall
recover costs on appeal.
YEGAN, Acting P. J.
We concur:
BALTODANO, J.
CODY, J.
15
Henry J. Walsh, Judge
Superior Court County of Ventura
______________________________
Law Office of Steven R. Rosales and Steven R. Rosales, for
Plaintiff and Appellant.
Board of Retirement of Ventura County Employees’
Retirement Association and Lori A. Nemiroff; Law Office of
Vivian Shultz and Vivian W. Shults, for Defendant and
Respondent.
Law Office of Stephen D. Roberson and Stephen D.
Roberson, for Intervener and Respondent.
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
ALBERTO MENDOZA, 2d Civ. No. B327347
Plaintiff and Appellant, (Super. Ct. No. 56-2021-
00550840-CU-WM-VTA)
v. (Ventura County)
BOARD OF RETIREMENT OF ORDER CERTIFYING
THE VENTURA COUNTY OPINION FOR
EMPLOYEES’ RETIREMENT PUBLICATION
ASSOCIATION, [NO CHANGE IN
JUDGMENT]
Defendant and Respondent.
COUNTY OF VENTURA/RISK
MANAGEMENT,
Intervener and Respondent.
THE COURT:
The opinion in the above-entitled matter filed on December
3, 2025, was not certified for publication in the Official Reports.
For good cause, it now appears that the opinion should be
published in the Official Reports and it is so ordered.
___________________________________________________________
YEGAN, A.P.J. BALTODANO, J. CODY, J.