Callecod v. Washington State Patrol

• Decision Date: 21 January 1997
• Docket Number: No. 37890-2-I,37890-2-I
• Citation: 929 P.2d 510,84 Wn.App. 663
• Court: Washington Court of Appeals
• Parties: Donald Wayne CALLECOD, Appellant, v. WASHINGTON STATE PATROL, and Its Chief, Respondents.

Page 663

84 Wn.App. 663

929 P.2d 510

Donald Wayne CALLECOD, Appellant, v. WASHINGTON STATE PATROL, and Its Chief, Respondents.

No. 37890-2-I.

Court of Appeals of Washington Division 1.

Jan. 21, 1997.

Joseph E. Fischnaller, Reaugh Fischnaller & Oettinger, Seattle, for Appellant

Eric A. Mentzer, Olympia, for Respondents.

KENNEDY, Acting Chief Judge.

Several months after he slipped and fell while working as a trooper for the Washington State Patrol (WSP), Donald Callecod applied for disability retirement benefits. His request was denied and the denial was affirmed, first by the Disability Benefits Review Board and then by WSP Chief Annette Sandberg, who adopted the Board's decision. Callecod appealed to the Snohomish County Superior Court, which affirmed the denial of benefits. Callecod now appeals to this court, contending that the decision to deny benefits was based on a misapplication and misinterpretation of the law, that the decision is not supported by substantial evidence when viewed in the light of the record as a whole, and that the decision is arbitrary and capricious. Because Callecod has failed to demonstrate the invalidity of the agency action, we affirm.

FACTS

On a snowy morning in November 1993, while flagging traffic through an accident scene, WSP Trooper Donald Callecod slipped, fell, and slid partially under his patrol car. He immediately resumed his work. The following morning Callecod visited his family physician, Dr. Hanson, who determined that Callecod had fractured his right elbow and wrist, bruised his hip area, and aggravated a previous shoulder injury.

In the days following the accident, Callecod began having headaches and ringing in his ears. He took seven days off from work, but his symptoms persisted. Over the next several months, Callecod began to experience difficulty sleeping, nightmares, inability to make routine decisions and perform routine tasks without extreme effort, trouble concentrating, strong impulses to hurt other people, panic attacks, suicidal impulses, weight loss, and feelings of rage, worthlessness, and despair. Callecod continued to work without reporting his symptoms to the WSP. None of his co-workers who later testified at the Board hearing noticed that Callecod was having any emotional problems, and his supervisor deemed his work to be satisfactory.

Nearly five months after the accident, feeling that he had "hit the wall," Callecod again went to see Dr. Hanson. After performing a physical and psychological evaluation, Dr. Hanson diagnosed Callecod with major depression with anxiety and suicidal ideation, and recommended that Callecod take some time off from work. Dr. Hanson prescribed anti-depressants for Callecod, and referred him to a psychologist, Dr. Tracy. Callecod did not return to work and requested temporary disability leave from the WSP under RCW 43.43.040(1)(a) ¹. The WSP denied his request for temporary disability benefits and ordered Callecod placed on leave-without-pay status.

Callecod then applied for permanent job-related disability leave under RCW 43.43.040(1); (2) ². After reviewing Callecod's medical records from his treating physicians and the report of Dr. Berryman Edwards, a physician Callecod requested review of the denial of benefits by the WSP Disability Retirement Board (Board). The Board heard the testimony of Callecod's two treating physicians, Dr. Hanson ³ and Dr. Tracy, and of three other physicians who examined Callecod, all of whom diagnosed Callecod with depression. Four of these five doctors concluded that Callecod was not able to perform the regular duties of his position as a patrol officer, including clerical duties (the fifth physician was not asked to draw a conclusion regarding fitness for duty). Dr. Hanson opined that Callecod's prognosis was for a full recovery in as little as 30 to 60 days. The consensus of these doctors was that Callecod's depression was connected with the injuries received in the slip and fall accident.

employed by the WSP to examine Callecod, the WSP again denied Callecod's request for benefits.

The WSP called only Dr. Edwards as an expert witness. Dr. Edwards, who admitted having a bias against workers applying for benefits, and who admitted having spent considerably less time with Callecod than any of the treating or other examining physicians, testified that Callecod's symptoms were inconsistent with a diagnosis of depression and could have resulted in part from the combination of anti-depressant medications which had been prescribed by Dr. Hanson. Dr. Edwards testified that a psychiatrist had recommended a change of medications but that this had never been accomplished. Dr. Edwards diagnosed Callecod with a personality disorder, instead of depression, but was unable to diagnose any specific personality disorder, due, he said, to the short period of time he had spent with Trooper Callecod. Dr. Edwards testified that he believed that Callecod had the personality disorder before he went to work for the WSP, and that Callecod's symptoms were not caused by his workplace environment or by his accident, but by a combination of the personality disorder and Callecod's dislike for his work as a trooper. Dr Based on Dr. Edwards' testimony and that of Callecod's supervisor and fellow troopers who testified that Callecod had seemed fine to them during the weeks before he went on leave, the Board found Callecod able to perform active service, but recommended that he not be returned to line duty while on medications and until pronounced fit for line duty by the department psychologist. The Board recommended denial of disability status to WSP Chief Annette Sandberg, who adopted the Board's findings and denied disability status for Callecod.

Edwards declined to express an opinion with respect to Callecod's fitness for duty, but testified, in response to a question incorporating a summary of Callecod's emotional symptoms, that he would recommend that the WSP return a trooper to duty who was having fantasies of committing physical violence against traffic violators, so long as the fantasies were not the product of a mental illness and so long as Dr. Edwards believed there was little likelihood that the fantasies would be carried out. Dr. Edwards stated that fantasies are common.

Callecod sought review of the decision by the Snohomish County Superior Court. The court held that the denial of benefits was proper because Callecod did not demonstrate any errors of law and because the Board's findings were supported by substantial evidence in the record. The court granted Callecod's motion for a stay, ordering that he be allowed to remain on leave-without-pay status pending a final appellate decision.

This appeal followed.

DISCUSSION

When a trooper of the Washington State Patrol is injured while on the job, Ch. 43.43 RCW provides that the trooper may receive temporary disability benefits of up to six months of full pay, benefits and insurance if the trooper was injured or incapacitated while performing "line duty." RCW 43.43.040(1)(a). Thereafter, or if the trooper does not qualify for temporary benefits, he or she may receive disability retirement benefits of one-half of regular pay if disabled while "in the performance of their official duties, or while on standby or available for duty." RCW 43.43.040(1); (2). Whether a disabled trooper receives (full-pay) temporary benefits for six months from the time of the injury and then (half-pay) regular retirement disability benefits thereafter, or merely receives (half-pay) retirement disability from the outset, depends on whether the trooper suffered the injury while on "line duty" or during "active service." "Active service" is simply the performance of duties of whatever type, performed pursuant to a superior's orders. WAC 446-40-020(1). Active service consists of "line duty" and "other duty." "Line duty" is:

[A]ctive service which encompasses the traffic law enforcement duties and/or other law enforcement duties and/or other law enforcement responsibilities of the Washington state patrol. These duties encompass all law enforcement activities, accident and criminal investigations, or actions requiring physical exertion or exposure to hazardous elements.

WAC 446-40-020(2). "Other duty" is:

[A]ctive service which encompasses activities consistent with the responsibilities of the Washington state patrol, but which do not foreseeably require more physical exertion than that normally required for the performance of clerical tasks.

WAC 446-40-020(3). Thus, whereas active service can include clerical tasks, line duty cannot.

The Board and the Chief were required in this case first to determine whether Trooper Callecod was injured or incapacitated to such an extent that he was incapable of active service; if so, the Board and the Chief would be required to determine next whether the trooper became injured or incapacitated while performing official duties and thus was entitled to disability benefits under RCW 43.43.040. Because the Board and the Chief answered the first question, that of inability to perform active service in the negative, they never reached the question of whether Trooper Callecod was injured or incapacitated while performing official duties. They simply concluded that he was not, in fact, unable to perform active service although he was temporarily unable to perform line duty.

Judicial review of administrative and agency orders is governed by RCW 34.05.570(3). Hensel v. Department of Fisheries, 82 Wash.App. 521, 525, 919 P.2d 102 (1996). Under RCW 34.05.570(3), this court may reverse an administrative decision only if: (1) the administrative decision was based on an error of law; (2) the decision was not based on substantial evidence when viewed in the light of the record as a whole; or (3) the decision was arbitrary or capricious. William Dickson Co. v. Puget Sound Air Pollution Control Agency, 81 Wash.App. 403, 407, 914 P.2d...