Rice v. Consolidated Public Retirement Bd. of State of W.Va., 23464

• Court: Supreme Court of West Virginia
• Citation: 483 S.E.2d 560,199 W.Va. 214
• Decision Date: 21 February 1997
• Docket Number: No. 23464,23464
• Parties: James W. RICE, Plaintiff Below, Appellant, v. The CONSOLIDATED PUBLIC RETIREMENT BOARD of the STATE OF WEST VIRGINIA, Defendant Below, Appellee.

Page 560

483 S.E.2d 560

199 W.Va. 214

James W. RICE, Plaintiff Below, Appellant, v. The CONSOLIDATED PUBLIC RETIREMENT BOARD of the STATE OF

WEST VIRGINIA, Defendant Below, Appellee.

No. 23464.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 21, 1997.

Decided Feb. 21, 1997.

Syllabus by the Court

1. " ' "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 orders 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 Volunteer Fire Department v. West Virginia Human Rights Commission, 172 W.Va. 627, 309 S.E.2d 342 (1983).' Syllabus, Berlow v. West Virginia Board of Medicine, 193 W.Va. 666, 458 S.E.2d 469 (1995)." Syl. pt. 1, Modi v. West Virginia Bd. of Medicine, 195 W.Va. 230, 465 S.E.2d 230 (1995).

2. "This Court reviews the circuit court's final order and ultimate disposition under an abuse of discretion standard. We review challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo." Syl. pt. 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996).

Barry M. Taylor, Raymond A. Nolan, Jenkins, Fenstermaker, Krieger, Kayes & Agee, Huntington, for Appellant.

Kenneth E. Webb, Jr., Bowles Rice McDavid Graff & Love, Charleston, for Appellee.

PER CURIAM:

This case is before this Court on appeal of the November 16, 1995 order of the Circuit Court of Wayne County, which affirmed a Consolidated Public Retirement Board order denying appellant James W. Rice's application for disability retirement benefits. This Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel. For reasons discussed below, the circuit court's order is affirmed.

I.

It is undisputed that appellant James W. Rice is a member of the public employees retirement system with ten years and six months of service. See generally West Virginia Public Employees Retirement Act, W. Va.Code, 5-10-1, et seq. On or about April 11, 1991, appellant, during the course of his employment as an equipment operator at the Department of Highways, injured his back while attempting to lift the five hundred pound tailgate of a truck. Appellant, who is approximately forty-six years old, has not worked since the date of this injury.

On or about June 10, 1994, appellant applied to the Consolidated Public Retirement Board (hereinafter "Board") for disability retirement benefits, pursuant to W. Va.Code, 5-10-25(a) [1994]. W. Va.Code, 5-10-25(a) [1994] provides, in relevant part:

Upon the application of a member or former member of the retirement system, or his or her present or past employing authority, any member or former member who is in the employ of a participating public employer or was in the employ of a participating public employer on a date which is twelve months or less from the date upon which the former member became incapacitated, who has ten or more years of credited service of which three years is contributing service, and who becomes totally and permanently incapacitated for employment, by reason of a personal injury or disease, may be retired by the board if after a medical examination of the said member or former member made by or under the direction of a medical committee consisting of two physicians, one of whom shall be named by the board, and one by the said member or former member, the said medical committee reports, in writing, to the board that the said member or former member is physically or mentally totally incapacitated for employment, that such incapacity will probably be permanent, and that the said member or former member or former member should be retired. In the event the two above-mentioned examining physicians do not agree in their findings, then the board may, at its discretion, appoint a third physician to examine said member or former member and, based upon the third physician's report in writing, the board may retire said member or former member.

Id, in relevant part. (emphasis added).

In addition to his application for benefits, appellant submitted to the Board medical evidence and reports from his treating physicians, indicating that appellant suffered from the following ailments: a weak left upper extremity as a result of a 1988 work-related injury in which he ruptured his left biceps tendon; limited range of motion of the left shoulder; chronic low back pain; disabling osteoarthritis; and hypertension. Appellant's treating physicians all concluded that he was totally and permanently disabled and could not be gainfully employed in any capacity.

Appellant was also examined by a physician selected by the Board. See W. Va.Code, 5-10-25(a) [1994], supra. Though the Board-selected physician concluded that appellant was totally and permanently disabled and would never be able to return to his previous employment as an equipment operator, the Board-selected physician determined that appellant could be gainfully employed in some other capacity.

By letter dated November 18, 1994, appellant was informed that the Board had denied his application for benefits because "[t]here was not sufficient medical information for the Board to grant [him] a disability retirement." The November 18, 1994 letter further indicated that

[t]he major factor in the approval of any disability retirement is the legal requirement that the applicant's doctor and a doctor selected by the Board both agree that the employee is totally and permanently disabled based on substantial medical reasons. In this connection, we expect any physician's examination to find substantial medical reasons why the employee should be granted disability retirement benefits.

Finally, the Board's November 18, 1994 letter offered appellant the option of either requesting another medical examination, at appellant's expense, by another physician selected by the Board, or of appealing the Board's decision to the Board's hearing officer. Appellant elected to appeal his case to the hearing officer.

Following a hearing on December 28, 1994, Hearing Officer Jack W. DeBolt recommended that appellant's application for disability retirement benefits be denied. In a recommended decision dated January 4, 1995, Hearing Officer DeBolt made the following conclusions of law: ¹

1. That provisions of § 5-10-25 of the West Virginia Code require that the Board-selected examining physician concur with an applicant's physician that the applicant cannot be employed in any capacity in order to qualify for disability retirement benefits. That the Board-selected physician agrees that an applicant cannot return to the employment previously held is not sufficient to permit an award.

2. That the applicant is not mentally or physically totally and permanently incapacitated from employment within the meaning of and to the degree of proof required by § 5-10-25 of the West Virginia Code. Appellant, who had been proceeding pro se, retained counsel and on January 16, 1995, filed a motion for additional medical examination. On February 1, 1995, appellant filed a motion to amend recommended decision. According to appellant, neither of these motions was considered by the hearing officer.

In a letter dated February 24, 1995, the Board's Executive Secretary, James L. Sims, informed appellant that his appeal for disability retirement benefits, reviewed by the Board at its meeting on February 21, 1995, had been denied. Mr. Sims' letter indicated that "[t]here was not sufficient medical information for the Board to grant [appellant] a disability retirement[,]" and further, that

[t]he major factor in the approval of any disability retirement is the legal requirement that the applicant's doctor and a doctor selected by the Board both agree that the employee is totally and permanently disabled based on substantial medical reasons. In this connection, we expect any physician's examination to find substantial medical reasons why the employee should be granted disability retirement benefits.

On appeal of the Board's decision to the Circuit Court of Wayne County, pursuant to the Administrative Procedures Act, W. Va.Code, 29A-5-1, et seq., appellant argued, inter alia, that the Board's order denying him disability retirement benefits was clearly wrong in light of the reliable, probative and substantial evidence on the whole record. See W. Va.Code, 29A-5-4(g)(5) [1964]. ²

Based upon its review of the record before the Board, ³ the circuit court affirmed the Board's decision and ordered the following: ⁴

1. That the provisions of § 5-10-25 of the West Virginia Code require that the applicant be physically or mentally totally incapacitated for employment and that such incapacity will probably be permanent.

2. That petitioner is not mentally or physically totally and permanently incapacitated from employment within the meaning of and to the degree of proof required by § 5-10-25 of the West Virginia Code since the examining physician selected by the [Board] and the applicant's treating physicians did not concur regarding the total and permanent disability of the applicant, if any.

3. That this Court is without authority to reverse, vacate, remand or otherwise modify the final...