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Hogan v. City and County of San Francisco10/19/2005
with his WCAB claim, found that Hogan did not have a psychiatric disorder or any other disability.
Hogan relies on his own declaration as evidence that he suffered from a serious health condition that prevented him from working. Although Hogan may be qualified to describe his subjective symptoms and ailments, he is not a medical doctor or expert and his conclusory allegations about his own condition do not raise a triable issue of material fact as to whether that condition (1) was "serious" within the meaning of the CFRA; or (2) prevented Hogan from performing his job functions.
In his reply brief, Hogan argues that he exercised his right to take CFRA-leave by submitting the note from Dr. Leung which put him off work and that the Department acknowledged Hogan had a serious health condition by placing him on paid sick leave.
As our factual summary reflects, there is no actual evidence in this record that Dr. Leung or anybody else prohibited Hogan from reporting to work because of a health condition, serious or not. Statements in Hogan's declaration that Leung gave him a note "putting him off work" are conclusory. Even if we assume a note was written, Hogan's subjective interpretation of it simply does not raise a triable issue of fact.
Furthermore, we reject Hogan's argument that paying an employee sick pay constitutes an admission that the employee has a CFRA-qualifying health condition. "Absence from work does not establish `incapacity.'" (Gibbs, supra, 74 Cal.App.4th at p. 8.) Indeed, there are "a variety of health matters [which] may involve absence from work and continuing medical treatment" but do not qualify as a serious health condition within the meaning of the CFRA. (Ibid.)
Finally, we note an alternative ground for affirming the order granting summary adjudication as to this claim. The Fire Commission finding that "Hogan did not have a medical necessity requiring his transfer to another position" establishes that Hogan did not have a serious health condition which precluded him from performing his job functions. This finding, which was accepted by the trial court pursuant to the collateral estoppel doctrine, precludes Hogan from establishing that his leave from the Department was for a CFRA-qualified purpose.
To summarize, the record demonstrates that Hogan's leave from his assignment at the CECC was not for a qualifying CFRA purpose. There is no evidence that Hogan failed to report to work because he had a serious health condition that precluded him from performing the functions of his job. Therefore, the trial court did not err by dismissing Hogan's retaliation claim.
B. Emotional Distress
Hogan contends the trial court erred by granting the City's in limine motion to exclude evidence. The court granted that motion because it found that Hogan's emotional distress claim was barred by the exclusivity provisions of the Workers Compensation Act (the Act). (See Lab. Code, ยงยง 3600 & 3602, hereafter the exclusivity rule.)
The parties agree that the trial court's in limine ruling was the functional equivalent of an order sustaining a demurrer or a non suit. On appeal, we view the evidence most favorably to the plaintiff and uphold the judgment for the defendant only if it was required as a matter of law. (See Mechanical Contractors Assn. v. Greater Bay Area Assn. (1998) 66 Cal.App.4th 672, 676-677.)
"Labor Code section 3600, subdivision (a), provides that, subject to certain particular exceptions and conditions, workers' compensation liability, `in lieu of any other liability whatsoever' will exist `against an employer for any injury sustained by his or her employees arising
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