Knapp v. Missouri Local Government Employees Retirement System

• Decision Date: 20 October 1987
• Docket Number: No. WD,WD
• Parties: Marshall KNAPP, Plaintiff-Appellant, v. MISSOURI LOCAL GOVERNMENT EMPLOYEES RETIREMENT SYSTEM, Defendant-Respondent, and The City of Independence, Intervenor Defendant-Respondent. 38359.
• Court: Missouri Court of Appeals

Page 903

738 S.W.2d 903

Marshall KNAPP, Plaintiff-Appellant, v. MISSOURI LOCAL GOVERNMENT EMPLOYEES RETIREMENT SYSTEM,

Defendant-Respondent,

and

The City of Independence, Intervenor Defendant-Respondent.

No. WD 38359.

Missouri Court of Appeals,

Western District.

Oct. 20, 1987.

William R. Merryman, Kansas City, for plaintiff-appellant.

Joe F. Willerth, Independence, for City of Independence.

Robert L. Hawkins III, Jefferson City, for Missouri Local Government Employees Retirement System.

Before CLARK, C.J., and KENNEDY and NUGENT, JJ.

NUGENT, Judge.

Plaintiff Marshall Knapp, a former employee of the intervenor defendant City of Independence, appeals the ruling of the trial court affirming the decision of the board of trustees of the defendant Missouri Local Government Employees Retirement System denying him duty disability benefits under § 70.680. ¹

Plaintiff claims that the board's decision is not supported by competent and substantial evidence upon the record as a whole, was not authorized by law, and was arbitrary, capricious, unreasonable and constituted an abuse of discretion. § 536.140. Specifically, he challenges the board's finding that his inability to perform his work is the result of his obesity rather than work-related injuries. That finding, he says, is not based on competent medical authority but on opinions of lay job supervisors and a hearsay memorandum prepared expressly for the hearing. Plaintiff also claims that the fact that he held the position of "apprentice journeyman lineman" on the date of his discharge does not by itself prove that he was not disabled. He says that the record substantially supports his claim that because of his work-related injuries he was not able to perform his duties, and thus he is entitled to disability benefits.

The following admissible and uncontroverted evidence was presented at the administrative hearing held by the defendant board of trustees.

Plaintiff Knapp went to work for the power and light department of the intervenor city as an apprentice journeyman lineman on October 15, 1979. A month later he was demoted and reassigned to "secure necessary experience." On April 9, 1980, however, having satisfactorily completed a six month probationary period and received a recommendation for permanent status, he regained his earlier classification. At that time, Mr. Knapp, who stands five feet eleven inches in height, weighed 270 pounds.

On May 15, 1980, plaintiff fell twenty feet while descending from a utility pole. He landed on his feet and suffered fractures in both feet and fractures of the left ankle. He was able to return to work on September 17, but seven days later he suffered a second work-related injury to his left ankle. He returned to work on October 9. Shortly after that, the city's utility director recommended that plaintiff's promotion to journeyman lineman be delayed until he could be rated for a full six months.

Even though Mr. Knapp resumed his regular duties as an apprentice lineman, he testified that, because of the pain in his ankle, he could not stay up on the poles for more than a few minutes at a time. The record indicates that he worked with the underground crew until February, 1982, when he was reassigned to substation work. Again, he could not perform because of his inability to climb poles. He estimated that fifteen percent of a lineman's work is on the poles.

Because of his inability to work on the poles, plaintiff was reassigned in May to the meter shop where he stayed until his discharge. Although his classification remained "apprentice lineman," he did not perform as a lineman. Ordinarily, the meter shop assignment is but a short segment of an apprentice lineman's training. According to the department's director, Farley Banks, the department placed Mr. Knapp in the meter shop to give him work that he could do after his inability to perform the climbing and strenuous duties of a regular lineman became apparent. In response to an interrogatory ² in another case, Mr. Banks stated that even after he had completed the meter training, Mr. Knapp was kept in the meter shop for compassionate reasons--because he had been hurt on the job and had proved unable after a lengthy convalescent leave to perform a lineman's tasks.

Plaintiff's merit ratings after his accidents and before his discharge generally reflected his inability to perform the duties of his position. His first merit rating dated April 9, 1980, (Intervenor's Exhibit No. 6) after almost six months on the job, gave plaintiff a satisfactory rating but recommended that he "get as much climbing experience as possible" and that he lose weight. The October 15, 1980, report (Intervenor's Exhibit No. 7) similarly indicated that plaintiff had a weight problem in climbing poles. The merit rating of February 2, 1981, (Intervenor's Exhibit No. 8) reported a marked improvement in plaintiff's job performance since returning from his accident and advised plaintiff to continue to lose weight and to keep up the good work. But before his discharge, plaintiff's last merit rating conducted on April 20, 1983, was unsatisfactory. The comments accompanying that rating stated that the kind of work he was suited for was work that did not require physical strain. They also noted that plaintiff's work was unsatisfactory because he was physically unable to perform as a journeyman lineman and that factors reducing the effectiveness of his work included his physical size and his need to stop and rest when working poles.

Giving a reduction in force as its reason, the city eliminated Mr. Knapp's position on July 31, 1983. On August 26 Mr. Knapp filed a timely application for duty disability retirement benefits under the Missouri Local Government Employees Retirement System. As required by § 70.680.3, ³ the system's board of trustees had Mr. Knapp evaluated by a medical committee of three physicians. Each of the physicians concluded that Mr. Knapp was permanently and totally disabled to perform the duties of a journeyman lineman and, therefore, should be considered eligible for disability retirement benefits.

In his evaluation Dr. L.F. Glaser stated: "It is my opinion that Mr. Knapp is totally and permanently physically incapacitated for duties of a journeyman lineman because it involves his climbing telephone poles which he cannot do safely nor comfortably because of degenerative changes of both ankles." According to Dr. Glaser's report, x-ray evidence of early mild degenerative changes of both left and right ankles included "some sclerosis of the tibial plafonds as well as some narrowing of the lateral portions of the ankle mortises bilaterally."

In his opinion Dr. J.S. Sanders, the system's medical advisor, wrote, "[I]n view of the injuries sustained in the fall and subsequent arthritic changes in the ankles, he would be unable to pursue his occupation as a journeyman lineman." He added that the plaintiff should not be disabled with respect to many other activities but that "climbing poles would seem to be prohibited in view of this type of injury to both lower extremities."

Dr. R.E. Bregant agreed with Dr. Sanders that Mr. Knapp could engage in many other activities that do not require long periods of standing or weight bearing. Nevertheless, he concluded that the plaintiff was "permanently and totally disabled and unable to pursue his job of journeyman lineman."

At its April 6, 1984, meeting, the board of trustees denied Mr. Knapp's duty disability application without hearing evidence. The board's letter of April 9 to the city's personnel director stated that the members did not think sufficient evidence was available to permit them to approve Mr. Knapp's application. The letter went on to advise Mr. Knapp that, according to § 70.605.16, he could appeal the decision under the provisions of Chapter 536, Revised Statutes of Missouri, within thirty days, and that the board would supply him with information about the formal procedure he should follow in making his appeal.

Accordingly, on May 8 Mr. Knapp filed in the circuit court a petition for declaratory judgment and for review along with various discovery motions. ⁴ The board moved to dismiss the petition as prematurely filed on the ground that the plaintiff had yet to exhaust a remaining administrative remedy as required by law. That step consisted of a hearing that the board would be willing to provide.

Given the misleading wording of the board's notice to Mr. Knapp regarding his right of appeal, the parties signed the following stipulation to dispose of the board's motion to dismiss:

1. By reason of the wording and language used by the defendant (board) in its decision which gave rise to the pending suit and plaintiff's counsel's interpretation thereof, the present action was brought, notwithstanding the fact that there was one additional administrative step to be pursued by plaintiff.

2. The defendant has made arrangements, notwithstanding the pendency of this litigation, for the administrative process to be completed.

3. The defendant stipulates and agrees to withdraw its Motion to Dismiss, now pending in the present litigation.

4. The parties stipulate and agree that this cause may be held in abeyance pending completion of the administrative process, such that plaintiff will not be caused to incur or expend any additional monies for court costs and in connection with such agreement, would request the Court to so hold this cause in abeyance.

The hearing before the board of trustees took place on January 17, 1985, in Jefferson City. The plaintiff's position was that he sustained an injury in the course of his employment which ultimately prevented him from performing his regular duties and, in light of the medical committee's reports, entitled him to duty disability benefits. The intervenor city contended that the plaintiff's inability to perform his duties was due to his weight problem and not to the injury. The city also...