Barron v. Board of Trustees of Policemen's Pension & Relief Fund, No. 16516

• Court: Supreme Court of West Virginia
• Writing for the Court: MILLER
• Citation: 176 W.Va. 480,345 S.E.2d 779
• Parties: Samuel BARRON v. BOARD OF TRUSTEES OF the POLICEMEN'S PENSION & RELIEF FUND, etc., and Walter Pifer, Individually and as Mayor, etc.
• Docket Number: No. 16516
• Decision Date: 21 November 1985

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345 S.E.2d 779 176 W.Va. 480 Samuel BARRON
v.
BOARD OF TRUSTEES OF the POLICEMEN'S PENSION & RELIEF FUND,
etc., and Walter Pifer, Individually and as Mayor, etc. No. 16516. Supreme Court of Appeals of
West Virginia. Nov. 21, 1985. Syllabus by the Court

1. "The Due Process Clause, Article III, Section 10 of the West Virginia Constitution, requires procedural safeguards against State action which affects a liberty or property interest." Syllabus Point 1, Waite v. Civil Service Comm'n, 161 W.Va. 154, 241 S.E.2d 164 (1977).

2. "A 'property interest' includes not only the traditional notions of real and personal property, but also extends to those benefits to which an individual may be deemed to have a legitimate claim of entitlement under existing rules or understandings." Syllabus Point 3, Waite v. Civil Service Comm'n, 161 W.Va. 154, 241 S.E.2d 164 (1977).

3. "The extent of due process protection affordable for a property interest requires consideration of three distinct factors: first, the private interests that will be affected by the official action; second, the risk of an erroneous deprivation of a property interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards;

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and finally, the government's interest, including the function involved and the fiscal and administrative burdens that [176 W.Va. 481] the additional or substitute procedural requirement would entail." Syllabus Point 5, Waite v. Civil Service Comm'n, 161 W.Va. 154, 241 S.E.2d 164 (1977).

4. The procedural due process rights that should be accorded a member of the Policemen's Pension and Relief Fund, created under W.Va. Code, 8-22-16, are that such member is entitled to retained counsel, to take the deposition of physicians appointed by the Board of Trustees, to appear before the Board of Trustees to present his reasons why he qualifies, and to have the Board of Trustees give a written statement outlining its reasons for denying benefits.

George Zivkovich, Parkersburg, for appellant.

Marian Lisa Yoke, Parkersburg, for Bd. of Trustees.

MILLER, Chief Justice:

In this appeal we are asked to decide whether a claimant for disability benefits under the Policemen's Pension and Relief Fund, as provided in W.Va.Code, 8-22-16 through -28, was unconstitutionally deprived of the benefits without due process of law, and if so, to determine what process is due.

The appellant, Samuel Barron, had been a member of the Police Department of Vienna, West Virginia, since October 1, 1971. During his employment, he had made the requisite contributions to the Policemen's Pension and Relief Fund. On August 30, 1983, Mr. Barron applied to the Pension Fund Board of Trustees ¹ for disability benefits. He submitted to the Board a letter dated September 9, 1983, from his treating physician, Robert Bruce, Jr., M.D., that said Mr. Barron had "totally lost function of his macula in the left eye due to the presumed ocular histoplasmosis syndrome." The doctor indicated that this condition "eliminates his binocular vision which gives him depth perception" and concluded "this probably will make him unfit for police service."

Under the procedures prescribed by W.Va.Code, 8-22-23a(a), ² the Board directed Mr. Barron to be examined by two physicians at the West Virginia University Department of Opthalmology in Morgantown, West Virginia. There, William Schenk, M.D., and George W. Weinstein, M.D., examined Mr. Barron pursuant to instructions provided by the Board. They reported to the Board by letter on October 5, 1983. Their report was dictated by Dr. Schenk and signed only by Dr. Weinstein. Thus, instead of preparing two independent reports, the two examining physicians made one report in which they both, apparently, concurred. This report, while finding Mr. Barron had ocular histoplasmosis in the left eye, concluded the condition was not disabling. Based on this report, the Board, on October 13, 1983, denied Mr. Barron's request for disability benefits.

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Two weeks later, Mr. Barron reapplied and asked the Board to authorize medical opinions from physicians in Charleston and Huntington. He submitted an additional letter from Dr. Bruce which took exception to the Schenk-Weinstein report in its finding of a corrected visual acuity in the left [176 W.Va. 482] eye of 20/70. It was Dr. Bruce's opinion that "the central area of vision of the retina in the left eye ... has been totally involved with a lesion from the presumed ocular histoplasmosis syndrome."

Although the Board agreed to permit Mr. Barron to be examined by other physicians, it was unable to follow through because it found there were no eye clinics at Marshall University or at West Virginia University, Charleston, which are the statutorily designated examining locations. W.Va.Code, 8-22-23a(a).

The Board then asked Drs. Schenk and Weinstein for a clarification of their diagnosis. It received a report, again dictated by Dr. Schenk and signed only by Dr. Weinstein, that said "Barron can not be considered visually disabled as long as the right eye remains normal. This is true whether the vision in the left eye is 20/400 or 20/70." It concluded "that Federal requirements for disability stipulate that best corrected visual acuity must be equal to or worse than 20/200 in the better eye." Based on this report, the Board again denied Mr. Barron's disability request.

Mr. Barron's counsel filed an objection and requested a hearing before the Board. The Board denied a hearing stating it was "not within the Board's power or authority to overturn the Doctors's (sic) directive." Mr. Barron renewed his request for a hearing and asked that he be given an opportunity to cross-examine the West Virginia University doctors and to present evidence on his own behalf. The Board did not grant the right to a hearing.

Subsequently, Mr. Barron filed this action in the Circuit Court of Wood County to compel the Board to grant him the right to a hearing and to cross-examine the doctors. The circuit court denied relief stating Mr. Barron had "not shown a clear legal right to mandamus nor a corresponding duty on the part of the Board."

I.

THE PROTECTED INTEREST

The Fifth and Fourteenth Amendments to the Constitution of the United States and Article III, Section 10 of the Constitution of West Virginia, require procedural safeguards against state action that affects a liberty or property interest. We spoke of this concept at some length in Waite v. Civil Service Comm'n, 161 W.Va. 154, 241 S.E.2d 164 (1977), and we concluded in Syllabus Points 1 and 3:

"1. The Due Process Clause, Article III, Section 10 of the West Virginia Constitution, requires procedural safeguards against State action which affects a liberty or property interest."

"3. A 'property interest' includes not only the traditional notions of real and personal property, but also extends to those benefits to which an individual may be deemed to have a legitimate claim of entitlement under existing rules or understandings."

See also Major v. DeFrench, 169 W.Va. 241, 286 S.E.2d 688 (1982); Kisner v. Public Serv. Comm'n, 163 W.Va. 565, 569-70, 258 S.E.2d 586, 588-89 (1979); State ex rel. McLendon v. Morton, 162 W.Va. 431, 249 S.E.2d 919 (1978); North v. West Virginia Bd. of Regents, 160 W.Va. 248, 233 S.E.2d 411 (1977).

In both Major and McLendon, we dealt with individuals who were in a probationary status but had satisfied objective eligibility requirements that were established by their state employer. Consequently, we concluded that they had a legitimate claim of entitlement, which could not be severed without some procedural due process, as we explained in McLendon, 162 W.Va. at 438, 249 S.E.2d at 923:

"As noted above, [Board of Regents v.] Roth[, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) ] and Waite [v. Civil Service Comm'n, 161 W.Va. 154, 241 S.E.2d 164 (1977) ] recognized that existing

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rules or understandings between the institution and the individual could give rise to a legitimate...