The opinion
PANELLI, J., Concurring and Dissenting.
I concur in the majority opinion insofar as it concludes that the 1980 amendment to section 31720 of the Government Code 1 clarified but did not change the eligibility test for service-connected disability. However, that conclusion does not answer the question of what the Legislature intended by its clarification. It is on this point that the majority and I part company.
I agree that the Legislature intended to abolish the “infinitesimal contribution” causation test by its 1980 amendment to section 31720. I am troubled, however, by the majority holding that the Legislature’s “contributes substantially” test requires nothing more than “substantial evidence of a ‘real and measurable’ connection between the disability and employment . . . .” (Ante, p. 578, italics added.)
In my view, the Court of Appeal in Lundak v. Board of Retirement (1983) 142 Cal.App.3d 1040, 1045-1046 [ 191 Cal.Rptr. 446 ], properly interpreted the amending language by adopting the Restatement Second of Torts’ “substantial factor” causation test. The court noted that “[o]ne of the requirements for ‘legal cause’ set forth in section 431 of the Restatement ... is that negligent conduct be a ‘substantial factor’ in bringing about harm.” (Id., at p. 1045.) The word “substantial” has long been a term of art in the context of causal relations in tort law. The Legislature, speaking in terms of causation, could very well have used the term “substantially” to *580 indicate its intent that the tort concept of legal causation apply. The “substantial factor” causation test defines a cause as one which is a material element and substantial factor in bringing about a particular result in such a manner . . as to lead reasonable men to regard it as a cause, using that word in the popular sense, in which there always lurks the idea of responsibility, rather than in the so-called “philosophic sense,” which includes every one of the great number of events without which any happening would not have occurred. . . (Lundak, supra, at pp. 1045-1046 .) (Italics added.)
While the “real and measurable connection” causation standard could be read to allow recovery for a cause in the “philosophic sense,” the “substantial factor” test makes it clear that the employment-related injury or illness must be a material element and have contributed to the disability in such a manner that reasonable minds would find the employment-related condition was in some way responsible for the disability. The Lundak test thus leaves far less room for confusion and presents far less risk that courts will once again slide down the proverbial slippery slope and return to an “infinitesimal connection” causation test. 2 This result, it strikes me, is exactly what the Legislature intended.
The majority rejects the Lundak court’s interpretation on two grounds. First, it states that the use of tort concepts could be confusing in the context of employment disability pensions. But tort causation principles have already found their way into both the workers’ compensation and employee disability areas. A prime example is the now familiar idea that the tortfeasor takes the plaintiff as he finds him. In both workers’ compensation and employment disability retirement law, that concept is translated into the maxim that the employer takes the employee as he finds him. (Lamb v. Workmen’s Comp. Appeals Bd. (1974) 11 Cal.3d 274, 282 [ 113 Cal.Rptr. 162 , 520 P.2d 978 ]; Kuntz v. Kern County Employees’ Retirement Assn. (1976) 64 Cal.App.3d 414, 421 [ 134 Cal.Rptr. 501 ].) No great confusion has resulted from the presence of that tort concept in either area. Instead, the idea has permitted employees to recover for injuries or disabilities caused by work-related aggravations of pre-existing conditions. (See, e.g., Maher v. Workers’ Comp. Appeals Bd. (1983) 33 Cal.3d 729 [ 190 Cal.Rptr. 904 , 661 P.2d 1058 ]; Kuntz v. Kern County Employees’ Retirement Assn., supra, 64 Cal.App.3d 414 .)
*581 Second, the majority contends that the rejection in the workers’ compensation context of the tort definition of proximate cause should extend to the employment disability context since the two are related. It is true, as the majority indicates, that we have looked to workers’ compensation cases for guidance when considering issues arising in the area of employee disability retirement compensation. Nevertheless, where the statutory language is different and the intent of the Legislature would be thwarted by responding to an employee retirement pension question with a workers’ compensation rule, I believe that the analogy between the two areas is no longer useful.
The majority points out that we recently reaffirmed the long standing rule that the “proximate cause” requirement of section 3600 of the Labor Code is less stringent than the tort concept of proximate causation. (Maher v. Workers’ Comp. Appeals Bd., supra, 33 Cal.3d at p. 734, fn. 3 .) Had the Legislature in amending section 31720 adopted the “proximately caused” language of Labor Code section 3600, I might be more easily persuaded that it intended the less stringent workers’ compensation standard of causation to apply. However, the use of the specific language “substantially contributes” indicates to me that the Legislature did in fact intend a more stringent standard to apply. And in any event, even the majority does not advocate the wholesale adoption of the workers’ compensation causation standard.
I believe the Lundak court correctly concluded that the “substantial factor” test would serve the Legislature’s intent to restrict the liberality of courts applying the “infinitesimal contribution” causation test without vitiating the “well-settled principle, cited [by the majority], that pension legislation must be applied fairly and broadly.” (Lundak, supra, 142 Cal.App.3d at p. 1046 .) Accordingly, I would adopt the Lundak definition of “contributes substantially.”
Hereafter, all statutory references are to the Government Code unless otherwise indicated.
The “real and measurable connection” test seems to have originated in the preamendment statutory interpretation of DePuy v. Board of Retirement (1978) 87 Cal.App.3d 392, 399 [ 150 Cal.Rptr. 791 , 12 A.L.R.4th 1150 ]. The test may be read consistently with the Lundak test. (See Gatewood v. Board of Retirement (1985) 175 Cal.App.3d 311, 320 [ 220 Cal.Rptr. 724 ].) However, as noted above, the “substantial factor” test is both more faithful to the statutory language and less likely to be misinterpreted.