Evans v. Schrunk

• Decision Date: 23 February 1971
• Citation: 4 Or.App. 437,479 P.2d 1008
• Parties: Herbert J. EVANS, Respondent, v. Terry D. SCHRUNK, Ray Smith, Donald I. McNamara, James H. Riopelle, John Scarino, Ronald O. Usher, Harold L. Petrie, William Grace, Fred Brock, Herb Miller, Members of the Board of Trustees of the Fire and Police Disability and Retirement Fund of the City of Portland, Oregon, Appellants.
• Court: Oregon Court of Appeals

Page 1008

479 P.2d 1008

4 Or.App. 437

Herbert J. EVANS, Respondent, v. Terry D. SCHRUNK, Ray Smith, Donald I. McNamara, James H Riopelle, John Scarino, Ronald O. Usher, Harold L. Petrie William Grace, Fred Brock, Herb Miller, Members of the Board of Trustees of the Fire and Police Disability and Retirement Fund of the City of Portland, Oregon, Appellants.

Court of Appeals of Oregon, Department 2.

Argued and Submitted Dec. 16, 1970.

Decided Jan. 28, 1971.

Rehearing Denied Feb. 23, 1971.

Ellis E. Gerdes, Portland, argued the cause for appellants. With him on the briefs were Marian C. Rushing and Robert L. Hurtig, Portland.

Raymond J. Conboy, Portland, argued the cause for respondent. With him on the brief were Pozzi, Wilson & Atchison, and Garry L. Kahn, Portland.

Before SCHWAB, C.J., and LANGTRY, BRANCHFIELD ^*, and HOLMAN, JJ.

LANGTRY, Judge.

The question in this case is whether plaintiff, an inactive policeman, is entitled to service-connected or nonservice-connected disability under the City of Portland's Fire and Police Disability and Retirement Fund, created and administered pursuant to the provisions of Chapter 5 of the city's charter. Service-connected disability pensions are substantially the larger.

The defendants, the Board of Trustees of the Fund, created by Chapter 5, ruled against plaintiff's claim for service-connected disability as of October 16, 1969, after having allowed it from January 10, 1968. Plaintiff took a Writ of Review (ORS 34.010 through ORS 34.100) to circuit court, which reversed the Board, holding the Board had 'exercised its functions erroneously and/or arbitrarily to the injury of a substantial right of the plaintiff.' Defendants appeal the circuit court ruling. The circuit court correctly tried the Writ on the record made by and brought from the Board. See Wing v. City of Eugene, 249 Or. 367, 371, 437 P.2d 836 (1968).

The record discloses that between February 13, 1968, and November 10, 1969, the Board discussed and took action on plaintiff's claims at 15 different meetings. These actions included, Inter alia, allowing the claim involved here, suspending it pending further medical reports, reinstating it, appointing three-man medical panels to consider it at plaintiff's request on two occasions, disallowing another unrelated claim, and finally reaffirming its final decision to terminate service-connected disability benefits.

Plaintiff had been a policeman for 18 years. His injury occurred when he slipped and fell upon a knee while performing his official duties. The jar of the fall caused a slight injury to the knee and a cervical sprain. From the latter, supported by medical evidence, the plaintiff claims an emotional disorder evolved which permanently prevents him from continuing as an effective police officer.

The subject pension plan has been often litigated by way of writs of review. ¹ Oregon Laws 1965, ch. 292, p. 632, added a third ground, arbitrariness, as cause for use of the writ. ORS 34.040 now provides that the writ may lie if a tribunal appears to have exercised its functions (1) erroneously, or (2) arbitrarily, or (3) to have exceeded its jurisdiction. This controversy is properly before us on the writ.

The trial court held that the Board's action was 'erroneous and/or arbitrary.' The procedural error asserted against the exercise of the Board's functions was that it designated different personnel the second time than it did the first time a medical panel was requested.

Section 5--106 of Chapter 5 of the Charter provides:

'Section 5--106. BOARD OF TRUSTEES. The * * * Fund shall be under the supervision and control of the Board of Trustees * * *. (The Board consists of the Mayor, City Treasurer, City Auditor, fire and police chiefs and six members popularly selected, three each from the fire and police departments. The Fund consists of public money contributed by the city and contributions from the pay of policemen and firemen.)'

Sections 5--107 and 5--115 of the Charter provide:

'Sections 5--107. POWERS OF BOARD. Said Board of Trustees shall have the power to prescribe its own rules and regulations * * *. Said Board is hereby authorized and empowered to designate one or more regularly licensed physicians or psychiatrists * * *. Said Board is further authorized and empowered to require applicants for pension and/or benefits from the Fund and persons receiving pensions or benefits from the Fund to submit to and undergo mental and physical examinations by one or more regularly licensed physicians or psychiatrists, designated by said Board for that purpose. * * * It shall hear and determine all applications for pensions or benefits as hereinafter provided for; provided, however, that the Board shall review any of its determinations based upon the findings of its physicians or psychiatrists upon the written request of any applicant; in such cases, it shall refer any matter concerning a question of physical or mental condition to three physicians or psychiatrists, one of whom shall be selected by members of the Board, one of whom shall be selected by the applicant, and the third shall be selected by the other two selectees; the Board may re-refer the matter to the physicians or psychiatrists for clarification and may obtain the reports of medical specialists for the information of the panel of three physicians or psychiatrists. The Board of Trustees shall base its findings upon review on the findings of the majority of said panel of physicians or psychiatrists As to the mental or physical condition of the member. * * * The Board may order any member drawing benefits or pension for disability to appear, submit to and undergo physical and mental examination; after the Board acts upon the basis of such examination, such member may request in writing the appointment of a panel of physicians or psychiatrists and in such cases, the procedure set forth above relating to such panels and their findings shall be followed. If the Board determines from its review of the findings of a majority of said panel of physicians or psychiatrists that such member is no longer entitled to draw benefits or pension for disability As a result of change in his physical or mental condition, the Board shall forthwith cease the payments of such pension or benefits * * *.

'Any person adversely affected by a determination of the Board based upon the findings of its physicians or psychiatrists, desiring a review of such determination, may apply for review by a three-man medical panel by filing with the Secretary of the Board a written request for such review within thirty (30) days after such determination by the Board.' (Emphasis supplied.)

'Section 5--115. BENEFITS FOR SERVICE-CONNECTED DISABILITY OR OCCUPATIONAL DISABILITY. Upon * * * application of a member And a finding by the Board that through injury suffered in line of duty, * * * the member is or has been unable to perform his required duties, said member shall be paid service-connected disability benefits * * * Until such member recovers * * *.

'* * *

'No member shall be given service-connected disability benefits * * * if the Board finds that said disability can probably be successfully corrected by competent medical or psychiatric treatment * * *.

'* * *.' (Emphasis supplied.)

On July 19, 1968, the first medical panel was authorized, composed of psychiatrists Dr. Paltrow, designated by the plaintiff, Dr. Saslow, designated by the Board, and Dr. Petroske, chosen by the first two. The claim was allowed on the basis of this panel's unanimous findings. Dr. Paltrow continued treatment, as the panelists had recommended, and on the basis of what he said in his reports, the Board terminated benefits as of October 16, 1969. Plaintiff immediately requested another medical review, which the Board granted. This time plaintiff again designated Dr. Paltrow, but the Board designated Dr. Montague, the Board doctor. These two selected Dr. Thompson. In this panel's report, doctors Montague and Thompson concluded that plaintiff would have suffered the same illness in other employment with supervision, and that the illness was not a direct result of plaintiff's employment as a police officer. Dr. Paltrow disagreed.

The Charter makes no specific requirements that the personnel of a second panel must be the same as the first. The Board is given broad authority to administer the Fund. We do not think we may read into Chapter 5 a restriction on the Board's authority to...