Cantrell v. State

• Decision Date: 21 June 1973
• Docket Number: No. 2,No. 48132,48132,2
• Citation: 200 S.E.2d 163,129 Ga.App. 465
• Parties: C. T. CANTRELL, Jr. v. STATE of Georgia
• Court: Georgia Court of Appeals

Page 163

200 S.E.2d 163

129 Ga.App. 465

C. T. CANTRELL, Jr. v. STATE of Georgia.

No. 48132.

Court of Appeals of Georgia, Division No. 2.

June 21, 1973.

Rehearing Denied July 25, 1973.

Harrison & Garner, G. Hughel Harrison, Lawrenceville, for appellant.

Arthur K. Bolton, Atty. Gen., Don A. Langham, Carl C. Jones, III, Asst. Attys. Gen., Atlanta, for appellee.

Syllabus Opinion by the Court

CLARK, Judge.

For decision is an appeal by Cantrell, a state employee, whose employment with the State Forestry Commission referred to herein as employer was sought to be terminated by the employer through involuntary retirement on grounds of disability. For determination are: (1) Is there a conflict of jurisdiction of this matter between the Board of Trustees of the State Employees' Retirement System (for convenience referred to hereafter as Retirement Board) and the State Personnel Board? and (2) What medical procedure is to be followed for involuntary separation of a State employee who contests alleged disability?

In conformity with Code Ann. § 40-2505(3)(b) as amended employer applied to the Retirement Board for Cantrell to be retired involuntarily by reason of his no longer being physicially able to perform his duties. Request was made for a disability determination. Accompanying this request employer provided the Retirement Board with a job description, a statement from the employee's supervisor, and a written report from his personal physician. (As this physician's report is not a part of the record we do not know its contents.) This material was submitted to the Retirement Board's three-member Medical Board for their evaluation of his eligibility for disability retirement. Each of its three physicians recommended disability retirement but no personal physical examination was made of the employee by any of them nor was employee directed to report to another doctor for a personal examination. This procedure was the interpretation given by the Retirement Board to the language in the statute. As this appeal revolves around these words we quote them. '(P)rovided the medical board, after a medical examination of such member (employee), shall certify that he is mentally or physically incapacitated for further performance of duty of the position he occupied at the time the disability originated, and that such incapacity is likely to be permanent and that he should be retired.' Code Ann. § 40-2503(3)(b). (Emphasis supplied.)

Upon receiving notification of this decision the employee through his attorney requested a formal hearing before the Retirement Board under the Administrative Procedure Act. In his letter (R. 67-70), the attorney took the position his client was not disabled and offered to submit him to a physical examination. It should be noted that throughout the proceedings the employee has contended he was not disabled and has offered to submit himself for a physical examination. This offer was repeated by his counsel during the oral argument in our court with the statement his client would abide by the results of such personal medical study.

In reply to this request his counsel was advised that this formal hearing as requested would not be held 'since the Employees' Retirement System is not within the purview of the Administrative Procedure Act.' (R. 61). This reply further stated that 'It is not the intent of the Employees' Retirement System to act in any manner contrary to the statute governing the System nor contrary to the purposes of the retirement program' and went on to invite the attorney to the Retirement Board's next meeting 'If you believe you have information concerning this matter which would be of value of the Retirement System or to the Trustees, or would like to discuss this matter with the Employees' Retirement System Board of Trustees on an informal basis.' (R. 62).

Instead of accepting this invitation for an informal presentation and reconsideration plaintiff filed an appeal to the State Personnel Board to determine his status on the ground that he was being discriminated against in that he was being involuntarily separated without the benefit of a personal medical examination as required by the statute.

Prior to the hearing of this appeal by the State Personnel Board, employer filed a timely motion to dismiss appeal, together with a memorandum brief, based on the contention of employer that the Board lacks jurisdiction to review a medical decision of the Medical Board of the Employees' Retirement System. (R. 25-31). Employer argued in its motion that employee was in the wrong forum and must directly attack a decision of the Board of Trustees of the Retirement System, rather than collaterally attacking it through the State Personnel Board.

In addition to denying employer's motion, the Personnel Board reinstated employee. It did so based on a stipulation that the three-member Medical Board of the Employees' Retirement System never had a physical examination made of the employee to pass on his contention that he was not disabled.

Employer then petitioned for a writ of certiorari to the Superior Court of Fulton County which was granted. The Fulton County Superior Court thereafter entered its judgment reversing the ruling of the Personnel Board. The court stated that the Personnel Board's interpretation of the medical examination provision of the Retirement System law was erroneous. The trial judge further construed this ruling by the Personnel Board to have been an attempt to review the actions of the Board of Trustees of the State Employees' Retirement System when it had no authority or jurisdiction to do so. Employee has brought this appeal from that judgment.

1. There as no offer to prove any internal rule of the State Retirement Board providing for an appellate division to hear disputes concerning its decisions and no appeals division is specifically provided for in Code Ann. ch. 40-25. Accordingly, we must assume the Retirement Board's decision contained in its notice to Cantrell was its final adjudication. This is true even though in its desire to give fair treatment to the employee there was extended an invitation for attendance at the next meeting with an offer to reconsider on the basis of such evidence as might be then presented. This it is clear that plaintiff has exhausted his administrative remedy before the State Retirement Board.

2. Plaintiff could have appealed from the State Retirement Board's adverse ruling by certiorari to the superior court for determination of his contention that the statute required a personal medical examination rather than accept the unilateral three-man Medical Board's decision made from written data. Scott v. Undercofler, 108 Ga.App. 460, 133 S.E.2d 444; Schaefer v. Clark, 112 Ga.App. 806, 146 S.E.2d 318; Gunther v. Gillis, 114 Ga.App. 54, 150 S.E.2d 309. Or in the alternative he could as was done here appeal to the Personnel Board on grounds of discrimination. Since State employees habitually work through the Personnel Board concerning any change of status, this was a logical step. The Personnel Board determined that plaintiff had not been effectively separated from his job and reinstated him on the basis that the complaint was within its jurisdiction. To handle complaints of unjust discrimination is one of its functions and in doing so it did not invade the jurisdiction of the Retirement Board.

3. If, contended by the employer, the appeal had been for a review and reversal of the medical determination of the Retirement Board, then the State Personnel Board would have lacked jurisdiction. But that was not the ground of appeal. Employee did not question the right of the Retirement Board to act. He did allege discrimination in that he was not given the personal physical...