Hardy v. State
| Decision Date | 02 July 1982 |
| Docket Number | No. 81-383,81-383 |
| Citation | 122 N.H. 587,448 A.2d 382 |
| Parties | Rollin E. HARDY v. The STATE of New Hampshire et al. |
| Court | New Hampshire Supreme Court |
Ouellette, Hallisey & Dibble, P. A., Dover (William L. Tanguay, Dover, on brief and orally), for plaintiff.
Gregory H. Smith, Atty. Gen. (James E. Townsend, Asst. Atty. Gen., on brief and orally), for the State.
Scott E. Woodman, Dover, by brief, for the City of Dover.
In this case, the New Hampshire Retirement System Board of Trustees denied the plaintiff's request for disability benefits, and the Superior Court (Goode, J.) subsequently declined to issue a writ of certiorari. The issue before us is whether the court erred in denying the writ. We affirm.
On November 22, 1977, the plaintiff, a permanent employee of the Dover fire department, extinguished a car fire. Claiming that his lungs were permanently damaged by the heavy smoke, he sought retirement with a disability retirement allowance under RSA 100-A:6 I(c) & (d). In July 1978, the New Hampshire Retirement System Board of Trustees (the board) voted to grant disability retirement benefits to the plaintiff, but in September 1978 it reconsidered its decision and rescinded the benefits. The plaintiff was notified of the board's decision to rescind in October 1978 and petitioned for rehearing in January 1979. The board again denied him benefits.
The plaintiff persisted and was granted a new hearing in May 1980. Nevertheless, on July 23, 1980, the board again denied the plaintiff's claim because he had failed to prove that the November 1977 fire had damaged his lungs or rendered him physically incapacitated. After his August 5, 1980 motion for rehearing was denied, the plaintiff petitioned the superior court for a writ of certiorari. The court denied his petition, as well as his subsequent motion for reconsideration and rehearing. The plaintiff appealed to this court.
The sole issue which we must consider is whether the superior court erred in refusing to issue a writ of certiorari. Because RSA ch. 100-A does not provide for judicial review, a writ of certiorari is the sole remedy available to a party aggrieved by a decision of the board of trustees. See Bothwick v. State, 119 N.H. 583, 590, 406 A.2d 462, 467 (1979). The trial court was not compelled to grant a writ of certiorari unless it found that the board of trustees "acted illegally in respect to jurisdiction, authority or observance of the law ... or has abused its discretion or acted arbitrarily or capriciously." Melton v. Personnel Comm'n, 119 N.H. 272, 280, 401 A.2d 1060, 1065 (1979) (quoting Slayton v. Personnel Comm'n, 117 N.H. 206, 208, 371 A.2d 1159, 1161 (1977)). We conclude that the trial court's refusal to grant a writ of certiorari was reasonable.
The board of trustees may retire an employee on an accidental disability retirement allowance if it finds the employee to be "mentally or physically incapacitated for the further performance of duty and that such incapacity is likely to be permanent." RSA 100-A:6 I(c). The employee's injury must be the natural and proximate result of an accident which occurs during the performance of his duty without willful negligence on his part. Id. The board of trustees received conflicting evidence regarding both the cause and extent of the plaintiff's injury. One physician, Dr. Richard Petrie, believed that smoke from the November 1977 fire permanently injured the plaintiff's lungs and that the resulting injury physically incapacitated him from further performance of his duty. Dr. Peter Barlow, on the other hand, concluded that "the event should not have, in itself, caused serious damage to [the plaintiff's] respiratory system nor to his general health, though it may have caused some symptoms." Based on these and other opinions, the board of trustees concluded that the plaintiff had failed to prove either that he was physically incapacitated or that his condition was the natural and proximate result of the November 1977 fire.
The plaintiff contends that the board committed reversible error because it "ignored" and "failed to consider" the opinion of Dr. Petrie. It is not this court's function to make findings de...
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