Hupp v. W. Va. Consol. Pub. Ret. Bd.

• Decision Date: 13 June 2014
• Docket Number: No. 13-0811,13-0811
• Court: West Virginia Supreme Court
• Parties: Clay R. Hupp, Petitioner, Petitioner v. West Virginia Consolidated Public Retirement Board, Respondent, Respondent

Clay R. Hupp, Petitioner, Petitioner v. West Virginia Consolidated Public Retirement Board, Respondent, Respondent

No. 13-0811

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

ISSUED: June 13, 2014

(Tyler County 11-AA-1)

MEMORANDUM DECISION

Petitioner Clay R. Hupp, by counsel Richard A. Monahan, appeals the order of the Circuit Court of Tyler County, entered July 3, 2013, affirming the administrative decision of Respondent West Virginia Consolidated Retirement Board to terminate petitioner's partial-duty retirement benefits. Respondent appears by counsel, J. Jeaneen Legato.

This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

Petitioner was awarded disability retirement benefits based on duty-related hearing loss from the State Police Death, Disability and Retirement System on October 30, 1999, when he was approximately forty-six years old, after twenty-two years of service with the West Virginia State Police. He subsequently served as the elected Sheriff of Tyler County from 2001 to 2008, and then worked part-time as a security officer.

As a condition of his disability retirement, petitioner was required to undergo periodic recertification examinations. For the most recent of these examinations, he was evaluated by Dr. Marsha Bailey on behalf of respondent on August 10, 2010. Dr. Bailey reviewed petitioner's medical records, but did not perform independent testing. She reviewed petitioner's audiograms from 1999 and 2009, and noted no significant change between the two. She stated that petitioner obtained hearing aids in 1999 or 2000 and upgraded to digital hearing aids in 2004. Dr. Bailey concluded:

It is reasonable to assume that his hearing loss is a result of his work as a West Virginia State Trooper. It is my understanding [petitioner] retired after 22 years of service with the West Virginia State Police. He went on to serve as Sheriff of Tyler County from January 2001 through December 31^st, 2008. [Petitioner]currently works as a part time Security Guard. Obviously [petitioner] is not disabled for law enforcement work. [Petitioner's] hearing loss is not uncommon in the West Virginia State Police and we have several active Members with his degree of hearing loss or worse that continue to work as a West Virginia State Trooper.

Dr. Bailey also completed a recertification form based on her examination. In response to question number six on the Medical Recertification Form ("In your opinion: Has the individual recovered from his or her previously determined probable permanent disability to the extent that he or she is able to perform adequately the essential duties of a law enforcement officer?"), Dr. Bailey circled "yes" and wrote that petitioner "was never disabled as a law enforcement officer." Based on Dr. Bailey's report, respondent voted to terminate petitioner's disability retirement benefits.

Petitioner requested an administrative hearing, and a hearing was conducted on February 1, 2011. The hearing examiner forwarded his recommended decision to respondent by letter dated April 27, 2011, finding that petitioner could perform the duties required of a state trooper, and noting: "Significant in this finding is that the only physician to opine on the subject was Dr. Bailey, who stated, as noted above, that [petitioner] had improved." Respondent adopted the recommended decision on May 26, 2011. Petitioner appealed the decision to the Circuit Court of Tyler County, and the circuit court entered its order on July 3, 2013, affirming the final order of the retirement board based on its finding that petitioner is capable of performing the duties of a state trooper. Petitioner appealed.

We have described the standard of review as follows:

In considering [petitioner's] appeal, this Court applies the same standard of review that the circuit court applied to the Board's administrative decision. We held in syllabus point one of Black v. State Consol. Public Retirement Bd., 202 W.Va. 511, 512, 505 S.E.2d 430, 431 (1998), that

"Upon judicial review of a contested case under the West Virginia Administrative Procedure Act, Chapter 29A, Article 5, Section 4(g), the circuit court may affirm the order or decision of the agency or remand the case for further proceedings. The circuit court shall reverse, vacate or modify the order or decision of the agency if the substantial rights of the petitioner or petitioners have been prejudiced because the administrative findings, inferences, conclusions, decisions or order are: '(1) In violation of constitutional or statutory provisions; or (2) In excess of the statutory authority or jurisdiction of the agency; or (3) Made upon unlawful procedures; or (4) Affected by other error of law; or (5) Clearly wrong in view of the reliable, probative and substantial evidence on the whole record; or (6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.' Syllabus Point 2, Shepherdstown V.F.D. v.W.Va. Human Rights, 172 W.Va. 627, 309 S.E.2d 342 (1983)."

Furthermore, in syllabus point two of Black, we declared that

"In reviewing challenges to the findings and conclusions of the circuit court, we apply a two-prong deferential standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review." Syllabus Point 2, Walker v. West Virginia Ethics Com'n, 201 W.Va. 108, 492 S.E.2d 167 (1997).

202 W.Va. at 513, 505 S.E.2d at 432.

McNeely v. W.Va. Consol. Pub. Ret. Bd., 226 W.Va. 553, 559, 703 S.E.2d 524, 530 (2010). Petitioner sets forth seven assignments of error related to the discontinuation of his disability retirement benefits pursuant to West Virginia Code § 15-2-31 (1994), which at the time petitioner received his award of benefits provided:

The consolidated public retirement board may require any member who has been or who shall be retired with compensation on account of disability to submit to a physical and/or mental examination by a physician or physicians selected or approved by the board and cause all costs incident to such examination including hospital, laboratory, X-ray, medical and physicians' fees to be paid out of funds appropriated to defray the current expense of the division, and a report of the findings of such physician or physicians shall be submitted in writing to the consolidated public retirement board for its consideration. If from such report or from such report and hearing thereon the retirement board shall be of the opinion and find that such disabled member shall have recovered from such disability to the extent that he or she is able to perform adequately the duties of a member of the division, the board shall order such member to reassume active duty as a member of the division and thereupon all payments from the death, disability and retirement fund shall be terminated. If from the report or the report and hearing thereon, the board shall be of the opinion and find that the disabled member shall have recovered from the disability to the extent that he or she is able to engage in any gainful employment but unable to adequately perform the duties required as a member of the division, the board shall order the payment, in monthly installments of an amount equal to two thirds of the salary, in the case of a member retired under the provisions of section twenty-nine [§ 15-2-29] of this article, or equal to one half of the salary, in the case of a member retired under the provisions of section thirty [§ 15-2-30] of this article, excluding any compensation paid for overtime service, for the twelve-month employment period preceding the disability: Provided, That if the member had not been employed with the division for twelve months prior to the disability, the amount of monthly salary shall be annualized for the purpose of determining the benefit.

[Emphasis supplied.]

Petitioner's first assignment of error is that the Board's physician, when she determined that petitioner was never disabled, thwarted the purpose of this statute, which is designed only to allow the Board to determine whether existing disability continues. Though Dr. Bailey offered a conclusion outside the bounds of the recertification examination inquiry when she stated that petitioner was never disabled, we do not believe that her statement obfuscates the issue.¹ Dr. Bailey clarified that "hearing loss is not uncommon in the West Virginia State Police and we have several active [m]embers with [petitioner's] degree of hearing loss or worse that continue to work. . . ." Regardless of Dr. Bailey's opinion about petitioner's degree of disability at the time that he was certified to have a duty-related disability, she adequately conveyed the information that was necessary for the recertification process: that petitioner currently is "able to perform adequately the duties of a member of the division."

Petitioner also argues that the evidence does not support the Board's determination that he is not disabled because (as explained in his second assignment of error) he suffers from irreversible and progressively-worsening high-frequency hearing loss and (as explained in his fourth assignment of error) his disability is improved only through the use of hearing aids, which are prohibited by State Police rules regarding medical standards.² We agree with respondent that the particular rule cited by petitioner is contained within a...