City of Cheyenne Policemen Pension Bd. v. Perreault, 86-75

CourtUnited States State Supreme Court of Wyoming
Citation727 P.2d 702
Docket NumberNo. 86-75,86-75
PartiesCITY OF CHEYENNE POLICEMEN PENSION BOARD, Appellant (Respondent), v. David D. PERREAULT, Appellee (Petitioner).
Decision Date05 November 1986

R. Walter Connell, Deputy City Atty., and Nancy S. Tabor, Legal Intern, Cheyenne, for appellant (respondent).

Rhonda Sigrist Woodard of Woodard, Epps and Hecox, Cheyenne, for appellee (petitioner).

Before THOMAS, C.J., and BROWN, CARDINE, URBIGKIT and MACY, JJ.

URBIGKIT, Justice.

David Perreault, a Cheyenne police patrolman, was injured in an on-duty automobile accident. His subsequent application to the City of Cheyenne Policemen Pension Board (Board) for a disability retirement pension was denied. The district court reversed the Board's decision as not supported by case law or the medical testimony on record. We affirm.

On July 1, 1980, Perreault was injured in an automobile accident while on duty and was hospitalized for four days with neck, shoulder, hip, knee, and ankle pain. His condition improved so considerably that he returned to work and volunteered for strenuous SWAT team training, completed a physical training course, and engaged in other physically demanding activities. However, during this time, he began experiencing lower back pain and pain and numbness in his legs. The pain intensified, and he was again hospitalized in December of 1980. A myelogram revealed possible indications of nerve-root pressure from abnormal disc degeneration. After treatment, his physician concluded that he could Perreault was visited on January 19, 1981 by a lieutenant with the police department who advised him that he had run out of paid work leave. The lieutenant discussed his available options, including worker's compensation and disability retirement pension, but did not discuss the possibility of a light-duty assignment. A few days later, Perreault filed a request with the Board for a disability retirement pension 1 accompanied by a letter from his attending physician stating that Perreault was "100% impaired as far as police work is concerned, however there is some other type of work he can do."

return to light work at the police department, but that he was totally unable to perform the normally assigned duties of a patrolman.

During a hearing, held February 3, 1982, the Board received testimony from Perreault's physician and another physician retained by the City to examine him. The City's examining physician testified that Perreault probably had a herniated disc or a chronically sprained back, and generally substantiated the testimony of the attending physician. The City's examining physician did, however, testify that to categorize his disability as permanent was inappropriate "at this time." Other testimony revealed the extent of Perreault's vigorous, physical activities between the time of the automobile accident in July and his hospitalization in December.

The Board reviewed the testimony and issued its findings of fact and conclusions of law, denying Perreault's application for a disability pension. The Board found (1) that the testimony regarding his demanding, physical activities disaffirmed his claim that he was physically disabled; (2) that there was little objective, physical evidence to support his claim; (3) that other police officers who had suffered with back problems had remained on active duty; and (4) that Perreault was still capable of performing most of his duties.

Perreault filed a petition for review with the district court. Upon review, the district court determined that the Board's decision was neither supported by case law nor by the introduced medical testimony. Consequently, the district court reversed the Board's findings and remanded the case to the Board with instructions to award a disability pension.

The City now appeals the district court's decision, claiming that:

(I) The district court erred in holding that the Board's decision was not supported by substantial evidence and was arbitrary and capricious; and

(II) The district court committed reversible error when it substituted its judgment for that of the trier of fact.

An issue originally raised by Perreault regarding the restriction of voir dire at the Board hearing was not considered by the district court in the last decision letter, and since no cross-appeal was taken will not now be considered in this appeal.

ISSUE I

The parties have accurately stated the standard which guides court review of administrative decisions. "In determining whether the action of an agency is arbitrary, capricious, or an abuse of discretion, the court ascertains whether the decision is supported by the evidence contained in the record." Holding's Little America v. Board of County Commissioners of Laramie County, Wyo., 670 P.2d 699, 703 (1983).

The court must accept the agency's finding of fact when it is supported by substantial evidence. First National Bank of Worland v. Financial Institutions Board, Wyo., 616 P.2d 787, 793-794 (1980); § 16-3-114(c)(ii)(E), W.S.1977, 1982 Replacement. Substantial evidence is

" * * * such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Mountain Fuel Supply Company v. Public Service Commission of Wyoming, Wyo., 662 P.2d 878 (1983); Board of Trustees, Laramie County School District No. 1 v. Spiegel, Wyo., 549 P.2d 1161 (1976). Such evidence may be less than the weight of the evidence but cannot be contrary to the overwhelming weight of the evidence. Mountain Fuel Supply Company v. Public Service Commission of Wyoming, supra." Big Piney Oil & Gas Company v. Wyoming Oil and Gas Conservation Commission, Wyo., 715 P.2d 557, 561-562 (1986).

We apply the above standard of review of the Board's decision together with this court's established procedure for review of agency decisions. This court recently restated that procedure in Walker v. Karpan, Wyo., 726 P.2d 82, 89 (1986):

"When the case comes to us from a district court acting as an intermediate appellate court we review the case as if it had been appealed directly to this court without affording special deference to the rulings of the district court."

In applying these standards, we agree with the district court: the Board's decision is not supported by substantial evidence. The uncontroverted testimony of both Perreault's physician and the City's physician who examined him substantiated his claim that he was disabled from performing the normal duties of a patrolman.

Perreault's physician concluded that he could return to light duty, but the record reveals that light duty was not an option which was made available to him. The City contends that light duty could have been made available upon request. The record reveals that Perreault did ask his sergeant for light duty, but "at the time of the request he was told that he would have to use up his sick leave since there was no light duty work available for him to do at that time." Following directions, Perreault exhausted his sick leave, after which he was visited by the police department lieutenant, who discussed only his worker's compensation and disability pension options. Thus, the police chief's testimony at the hearing that "I think I could probably say without question we would have reassigned him," had the employee requested light duty, is unsubstantiated by the account in the record of what actually happened. 2

An excellent analysis in a similar circumstance is found in Cloud v. Fort Dodge Police Pension Board, Iowa App., 372 N.W.2d 313 (1985). In that case a police officer was injured in an automobile accident. His treatment involved the removal of a herniated disc from his neck and the fusion of the vertebrae, resulting in the loss of 15 percent of his neck motions and the loss of strength and the ability of his neck to absorb shocks. The Police Pension Board of Trustees denied the officer's claim for accidental disability benefits, determining that the plaintiff was "not totally incapacitated for further duty." Id., 372 N.W.2d at 314. The officer petitioned the district court, which annulled the Board's decision as illegal, arbitrary and not supported by substantial evidence. The Iowa "This is not a case where the board could resolve a conflict of the evidence. It is a case where the board misapplied the law to uncontroverted facts." 372 N.W.2d at 316.

Court of Appeals affirmed the district court, stating:

In this case, both physicians who examined Perreault testified that he was disabled from performing the normal duties of a patrolman. Like Cloud, this case is not one where the Board could resolve a factual conflict. Rather, it is a case where the Board misapplied the law to uncontroverted facts.

The examining physician for the City testified that he would not categorize Perreault's disability as permanent, but permanent disability is not the statutory standard which qualifies a policeman for a disability retirement pension.

Section 15-5-308(a), W.S.1977, 1980 Replacement, provides:

"If any person, while serving as [a] policeman is physically disabled as a result of any bodily injury received in the immediate or direct performance or discharge of his duties, the board, upon his written request filed with the secretary of the board, or without the written request if it deems it to be for the benefit of the public, shall retire that person from the department and order that he be paid from the fund during his lifetime a monthly pension equal to sixty-two and one-half percent (62- 1/2%) of the amount of his regular monthly salary, effective at the time of his retirement. If the officer's disability is off-duty related, the officer shall receive a monthly pension equal to fifty percent (50%) of his monthly salary effective at the time of his retirement. If the disability ceases, the pension shall cease, and the person shall be restored to active service at the existing salary of his position or rank at the time he is reinstated."

The word "permanent" does not...

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4 cases
  • McGuire v. State, Dept. of Revenue and Taxation, 90-197
    • United States
    • United States State Supreme Court of Wyoming
    • April 17, 1991
    ...period. The court must accept an agency's finding of fact when supported by substantial evidence. City of Cheyenne Policemen Pension Bd. v. Perreault, 727 P.2d 702, 704 (Wyo.1986). Appellant also contends that the suspension of a driver's license is penal in nature and the Department's acti......
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