Carstensen v. Board of Trustees of Police Retirement System of City of Storm Lake

• Decision Date: 25 May 1977
• Docket Number: No. 2-58163,2-58163
• Citation: 253 N.W.2d 560
• Parties: Andre CARSTENSEN, Appellant, v. BOARD OF TRUSTEES OF the POLICE RETIREMENT SYSTEM OF the CITY OF STORM LAKE, Iowa, and Wilbur Tucker, Chairman of Said Board, Appellees.
• Court: Iowa Supreme Court

Page 560

253 N.W.2d 560

Andre CARSTENSEN, Appellant, v. BOARD OF TRUSTEES OF the POLICE RETIREMENT SYSTEM OF the CITY OF STORM LAKE, Iowa, and Wilbur Tucker, Chairman of Said Board, Appellees.

No. 2-58163.

Supreme Court of Iowa.

May 25, 1977.

Meardon, Sueppel, Downer & Hayes by James P. Hayes, Iowa City, for appellant.

Mack, Hansen & Gadd by Douglas W. Hansen and Stephen R. Gadd, Storm Lake, for appellees.

Heard by MOORE, C. J., and RAWLINGS, LeGRAND, REES and REYNOLDSON, JJ.

RAWLINGS, Justice.

On certiorari to Buena Vista District Court defendant Board's denial of plaintiff's application for a disability retirement police pension was upheld. Plaintiff appeals. We affirm.

In early July 1965, the City of Storm Lake engaged plaintiff, Andre Carstensen, as chief of police. He was employed without a physical examination and from July 1965 through 1973 contributed to a Chapter 410, The Code 1973, municipal pension fund. January 1, 1974, the police department was placed under civil service. Thereupon a Code ch. 411 pension service was effectuated. Plaintiff was thus accredited and promptly started contributing to the newly created fund, absent a physical examination.

December 22, 1973, plaintiff was involved in an altercation while performing official duties and hospitalized because of a suspected heart condition. January 14, 1974, he returned to work.

February 14, Carstensen filed application with defendant Board of Trustees for allowance of disability retirement benefits pursuant to Code § 411.6(3), (5). April 5, he was examined by the Code § 411.5(9) medical board. All three doctors concluded plaintiff had a heart disease and affirmatively stated Carstensen is incapacitated for performance of duty and such is likely to be permanent. One examiner stated, however, plaintiff's incapacity, though permanent, is not total. The record also reveals that in May 1974, Carstensen applied for a private detective license. He also remained on duty for approximately two months after having applied for a disability pension.

June 24, 1974, hearing was had on the February 14 application. Letters from the three medical board members and those submitted by Carstensen's doctors were received in evidence.

July 22, 1974, defendant Board denied plaintiff's ordinary disability pension application under § 411.6(3). Also rejected was Carstensen's § 411.6(5) accidental disability application.

Trial court held defendant Board's holdings were supported by competent and substantial evidence of record.

These are the issues here raised by plaintiff:

(1) Did trial court err in concluding petitioner must have five years membership service under ch. 411 in order to be entitled to ordinary disability benefits under § 411.6(3), The Code 1973?

(2) Did trial court err in concluding there was substantial evidence to support the Board's finding petitioner is not totally disabled for duty?

(3) Did trial court err in concluding the Board had rebutted the presumption that petitioner's heart disease was contracted or aggravated while on active duty?

(4) Did trial court err in concluding petitioner's heart condition must have been contracted or aggravated after he became a member of the retirement system under ch. 411 on January 1, 1974?

I. Certiorari is an ordinary proceeding triable as a law action. On review questions of fact resolved by the deciding officer or tribunal are not usually reviewable. The question posed is whether the decision is supported by any competent and substantial evidence, and the burden of showing illegality rests upon an asserting party. The fact that a different or opposite result may have been fully justified by the record is of no importance. A trial de novo is not ordinarily permitted on certiorari. See Reisner v. Board of Trustees of Fire Retirement Sys., 203 N.W.2d 812, 814 (Iowa 1973); Cedar Rapids Steel Transp. v. Iowa State Com. Com'n., 160 N.W.2d 825, 831 (Iowa 1968), cert. den., 394 U.S. 918, 89 S.Ct. 1189, 22 L.Ed.2d 451 (1969). See also Collier v. Denato, 247 N.W.2d 236, 237-239 (Iowa 1976); State v. Cullison, 227 N.W.2d 121, 126-127 (Iowa 1975).

Also when, as in this case, the law clothes an inferior official or body with authority to effect a decision on facts submitted, the determination is not illegal if the subject matter and parties are within its jurisdiction and there is substantial competent supportive evidence. Judicial review of facts is only for the purpose of determining whether the decision is adequately upheld by the record. See Staads v. Board of Trus. of Fireman's Ret. Pension Fund, 159 N.W.2d 485, 490 (Iowa 1968). See generally 2 Am.Jur.2d, Administrative Law, § 657; 73 C.J.S. Public Administrative Bodies and Procedure § 223.

II. As aforesaid, Carstensen first takes the position trial court erred in concluding plaintiff must have had five years retirement system membership in order to qualify for ordinary disability benefits under § 411.6(3), quoted infra. More specifically, plaintiff maintains a more logical view is that persons included within ch. 410 pension plans are to be transferred to ch. 411 retirement systems without losing either benefits or tenure under the original plan. We are not so persuaded.

Section 411.6(3) states in relevant part:

"(A)ny member who has had five or more years of membership service shall be retired by the respective board of trustees * * * on an ordinary disability retirement allowance, provided * * * that said member is mentally or physically incapacitated for further performance of duty, that such incapacity is likely to be permanent and that such member should be retired." (emphasis supplied).

Section 411.1(8) says: " 'Membership service' shall mean service as policemen or firemen rendered since last becoming a member, or, where membership is regained as provided in this chapter, all of such service."

In § 411.1(4), we find: " 'Member' shall mean a member of either the police or fire retirement systems as defined by section 411.3."

And, by § 411.3, "membership" is thus defined: "1. All persons who become policemen or firemen after the date such retirement systems are established by this chapter, shall become members thereof as a condition of their employment." (emphasis supplied).

These statutes are unambiguous. Consequently, there need be no resort to rules of construction. See Bowen v. Kaplan, 237 N.W.2d 799, 801 (Iowa 1976); Heins v. City of Cedar Rapids, 231 N.W.2d 16, 18 (Iowa 1975).

In order to qualify for ordinary disability retirement benefits it was essential Carstensen have at least five years service as a member of the ch. 411 retirement system. But he had only four months. Therefore, plaintiff was not entitled to any § 411.6(3) ordinary disability benefit.

Parenthetically, plaintiff's reliance on Mathewson v. Board, 226 Iowa 61, 283 N.W. 256 (1939), is misplaced. In construing what is now Code § 410.6, the Mathewson court said, 226 Iowa at 67-68, 283 N.W. at 260:

"When the legislature enacted section 6315 it did not therein specify that the time of service was to commence with the time that the fire department became a pension-paying department. Rather, it said 'any member of said departments who shall have served twenty-two years.' " * * * A fair interpretation of the statute seems to us to mean that when one has served in the fire department for twenty-two years or more, * * * he comes within the provisions of the pension act."

As stated above, however, § 411.6(3) explicitly requires at least five years of membership service. And the cited Act, heretofore quoted, clearly restricts plaintiff's start of "membership" for ordinary disability benefits, unlike those attendant upon accident disability, to time after the Storm Lake ch. 411 retirement system was established, i. e., January 1, 1974.

Carstensen's application for § 411.6(3) ordinary disability retirement benefit was properly denied.

III. Plaintiff's last three issues involve applicability of § 411.6(5), accident disability benefit. Being interrelated they will be accordingly entertained.

Carstensen asserts trial court's finding that, in order to recover under § 411.6(5) for accident-related heart disability, petitioner must show such condition was incurred or aggravated after January 1, 1974, is contrary to law. We agree.

Section 411.6(5) says:

"Upon application of a member in service or of the chief of the police or fire departments, respectively, any member who has become totally and permanently incapacitated for duty as the natural and proximate result of an injury or disease incurred in or aggravated by the actual performance of duty at some definite time and place, or while acting pursuant to order, outside of the city or town by which he is regularly employed, shall be retired by the respective board of trustees, provided, that the medical board shall certify that such member is mentally or physically incapacitated for further performance of duty, that such incapacity is likely to be permanent and that such member should be retired.

"Should a member in service or the chief of the police or fire departments become incapacitated for duty as a natural or proximate result of an injury or disease incurred in or aggravated by the actual performance of duty at some definite time or place or while acting, pursuant to order, outside the city or town by which he is regularly employed, he shall, upon being found to be temporarily incapacitated following an examination by the board of trustees, be entitled to receive his full pay and allowances until re-examined by said board and found to be fully recovered or permanently disabled.

"Disease under this section shall mean heart disease or any disease of the lungs or respiratory tract and shall be presumed to have been contracted while on active duty as a result of strain or the inhalation of noxious fumes, poison or gases."

This court addressed the issue as to retroactivity of § 411.6(5) in City of Iowa City v....