Kinsey v. Board of Trustees of Police and Firemen's Disability and Pension Fund of Ohio

• Decision Date: 14 March 1990
• Docket Number: No. 88-1599,88-1599
• Citation: 551 N.E.2d 989,49 Ohio St.3d 224
• Parties: KINSEY, Appellant, v. BOARD OF TRUSTEES OF the POLICE AND FIREMEN'S DISABILITY AND PENSION FUND OF OHIO, Appellee.
• Court: Ohio Supreme Court

Page 224

49 Ohio St.3d 224

551 N.E.2d 989

KINSEY, Appellant, v. BOARD OF TRUSTEES OF the POLICE AND FIREMEN'S DISABILITY AND PENSION FUND OF OHIO, Appellee.

No. 88-1599.

Supreme Court of Ohio.

Submitted Oct. 24, 1989.

Decided March 14, 1990.

Syllabus by the Court

In determining whether a person is totally disabled for purposes of the Police and Firemen's Disability and Pension Fund of Ohio, the board of trustees of the fund cannot rely on general statements made by doctors either in a written report or in preprinted forms supplied by the board, which state that a member can engage in "some" type of gainful employment. The board must state that it considered the member's training, experience, and accomplishments in determining whether he can engage in other gainful employment.

Jerry E. Kinsey, relator-appellant, was a fire fighter with the city of Toledo for over seventeen years and a member of the Police and Firemen's Disability and Pension Fund of Ohio (the "Fund"), as defined in R.C. 742.01.

On March 31, 1985, appellant suffered an acute myocardial infarction with single-vessel coronary disease; anteroapical wall myocardial infarction; angina pectoris, Class II. Appellant filed for disability retirement under the Fund. The Board of Trustees of the Fund, respondent-appellee ("board"), awarded appellant maximum partial disability retirement on September 25, 1985. Appellant appealed this award, requesting that the disability retirement be increased to permanent and total. Ohio Adm.Code 742-3-05(B) provides for notice and opportunity to be present with counsel, if so desired, on an initial appeal hearing. It appears from the record in this case that appellant was afforded this procedure prior to the hearing. The board advised Kinsey on December 18, 1985, that it had "decided not to change its original grant [of maximum partial disability]."

Appellant thereafter requested a reconsideration of the maximum partial disability retirement grant and asked that his benefit be increased to permanent and total disability retirement. Pursuant to Ohio Adm.Code 742-3-05(C), no opportunity exists for a claimant to personally appear before the board on a request for reconsideration of a claimant's disability benefit. On September 24, 1986, the board informed appellant that upon reconsideration, it determined not to make any change in the disability benefit.

Appellant brought a complaint for a writ of mandamus in the Court of Appeals for Franklin County, wherein he sought an order to vacate respondent's previous decision awarding partial disability and ordering respondent to award appellant permanent and total disability retirement. Appellant alleged that there was no evidence to support the board's finding that he was partially disabled; rather, he alleged, the evidence supported a finding of total disability. Additionally, appellant argued that he was denied due process of law by not having had the opportunity to personally appear at the reconsideration determination. The court of appeals denied the writ.

This cause is now before this court on an appeal as of right.

Stewart R. Jaffy & Associates Co., L.P.A., and Stewart R. Jaffy, Columbus, for appellant.

Anthony J. Celebrezze, Jr., Atty. Gen., and Cherry Lynne Poteet, Columbus, for appellee.

ALICE ROBIE RESNICK, Justice.

At the outset we will address the constitutional issue raised by appellant. It is well-established that where a case can be resolved upon other grounds the constitutional question will not be determined. This case can be resolved on the "some evidence" rule and, therefore, we find it is unnecessary to reach the constitutional issue of whether appellant was denied due process of law by not receiving notice and an opportunity to be heard at the reconsideration determination. State, ex rel. Hofstetter v. Kronk (1969), 20 Ohio St.2d 117, 119, 49 O.O.2d 440, 441, 254 N.E.2d 15, 17. See, also, Hardy v. VerMeulen (1987), 32 Ohio St.3d 45, 51, 512 N.E.2d 626, 632 (Wright, J., dissenting); State v. Weissman (1982), 69 Ohio St.2d 564, 566, 23 O.O.3d 477, 479, 433 N.E.2d 216, 217; Greenhills Home Owners Corp. v. Greenhills (1966), 5 Ohio St.2d 207, 34 O.O.2d 420, 215 N.E.2d 403, paragraph one of the syllabus; Rucker v. State (1928), 119 Ohio St. 189, 162 N.E. 802, paragraph one of the syllabus.

We will now proceed to a consideration of whether mandamus is appropriate. For a court to grant a writ of mandamus, the relator must establish "(1) a clear legal right to the relief prayed for, (2) a clear legal duty upon respondent to perform the act requested, and (3) that relator has no plain and adequate remedy in the ordinary course of the law." State, ex rel. Consolidated Rail Corp. v. Gorman (1982), 70 Ohio St.2d 274, 275, 24 O.O.3d 362, 436 N.E.2d 1357, 1358. A clear legal right exists where the board abuses its discretion by entering an order which is not supported by "some evidence." We must, therefore, determine whether there is "some evidence" to support the award of maximum partial disability retirement and denial of permanent and total disability retirement.

The parties agree that Kinsey is permanently disabled as to his former position of fire fighter. The record contains evidence that if appellant returned to work as a fire fighter, there is a significant chance that he would suffer a second heart attack.

The dispute, however, arises as to whether Kinsey is totally disabled. "Total disability" is defined as the " * * * inability to perform the duties of any gainful occupation for which the member of the fund is reasonably fitted by training, experience, and accomplishments; provided, that absolute helplessness is not a prerequisite of total disability." R.C. 742.01(F). "Partial disability," although not statutorily defined, is referred to in forms supplied to physicians by the board. These forms ask the physician to designate whether the applicant is "totally" or "partially" disabled. The statement corresponding to "partial disability" reads:

"The applicant is permanently incapacitated for performance of duty as a (fire fighter) * * *. His/her disability is 'partial' and performance of any other gainful occupation would depend upon the occupation in question."

The statement for total disability incorporates R.C. 742.01(F), asking the physician to determine that:

"The applicant is permanently incapacitated for performance of duty as a (fire fighter) * * *. His/her disability is 'total' meaning an inability to perform the duties of any gainful occupation for which the applicant is reasonably fitted by training, experience, and accomplishments; provided that absolute helplessness is not a prerequisite to total disability."

Thus, partial disability, as used for purposes of the Fund, implies that a person may be able to perform other gainful employment, notwithstanding an inability to return to a former position as fire fighter.

Accordingly, in determining whether a person is partially or totally disabled, the board must determine whether the person can now be gainfully employed in an occupation for which he or she is reasonably fitted by training, experience, and accomplishments, provided that the person need not be absolutely helpless to qualify for total disability.

Appellee contends that there is "some evidence" to support the board's determination that Kinsey is not totally disabled. Dr. David K. Scheer, in his September 1985 report, stated that "Mr. Kinsey is permanently incapacitated for performance of duty as a firefighter. His disability is 'partial' and performance of any other gainful occupation would depend on the occupation in question."

Dr. Scheer,...