Ross v. Fire and Police Pension Ass'n

Decision Date10 February 1986
Docket NumberNo. 84SC65,84SC65
Citation713 P.2d 1304
PartiesMary Patricia ROSS, Petitioner, v. FIRE AND POLICE PENSION ASSOCIATION, Respondent.
CourtColorado Supreme Court

Bruno & Bruno, P.C., Louis B. Bruno, Lakewood, for petitioner.

Tallmadge, Tallmadge, Wallace & Hahn, P.C., C. Thomas Bastien, John W. Smith, Denver, for respondent.

QUINN, Chief Justice.

We granted certiorari to review the decision of the court of appeals in Ross v. Fire & Police Pension Association, 682 P.2d 496 (Colo.App.1984), which reversed a district court judgment that allowed Denver police officer Mary Patricia Ross to receive occupational disability benefits. The district court had overturned the Fire and Police Pension Association Board's denial of Ross' application for benefits, and the court of appeals reversed, holding that there was sufficient evidence in the record to support the Board's denial of the application. We affirm the judgment of the court of appeals.

I.

On February 16, 1982, Ross filed her application for occupational disability retirement benefits with the Fire and Police Pension Association Board (Board), 1 claiming that she was occupationally disabled as a result of injuries sustained in an on-duty automobile accident on March 29, 1981. Her condition was later diagnosed as thoracic outlet syndrome, a painful disorder of the back and upper body. 2 In order to obtain relief from the pain, Ross underwent the surgical removal of her left rib. 3 Ross had been previously assigned to patrol duties and claimed that she had lost upper arm and hand strength and that riding in a police vehicle for a sustained period of time aggravated the muscle tension in her neck, back, and shoulders.

When Ross filed her application, an "occupational disability" was defined as "a disability from any cause resulting in permanent incapacity to perform assigned duties." Ch. 316, sec. 1, § 31-30-1002(6), 1979 Colo.Sess. Laws 1189, 1190. 4 After Ross filed her application with the Board, the Chief of the Denver Police Department, pursuant to section 31-30-1007(4), 12 C.R.S. (1985 Supp.), certified to the Board that there was no other department position for which Ross could carry out assigned duties. The Board then appointed a panel of three orthopedic surgeons, each of whom conducted a separate examination and filed a report with the Board. The reports filed by each physician detailed Ross' various complaints, including discomfort in her neck and upper back, weakness in her left arm and hand, and an occasional feeling of lack of support in her left knee. The physical examination by each physician failed to uncover any objective signs that might account for Ross' complaints. The report of one of the orthopedic surgeon members of the panel, which is representative of all three reports, stated:

[Ross] has an essentially normal range of motion of her neck. I could see no evidence of muscle spasm. She did complain of a slight tenderness to palpation over the left sternocleidal mastoid muscle. The trapezius muscles appeared normal. There was no evidence of any swelling, inflammation or tenderness. She had excellent range of motion in both shoulders without any difficulty. She had good pulses in both upper extremities and the pulses remained good with maximum abduction and external rotation. Sensory, motor and reflex examination of the upper extremities was normal. Tape measurement revealed the arms to be equal in circumference. The forearm measur[e]ment showed that the right forearm was slightly larger in circumference than the left, a finding which is normal for an individual who is right handed. (This patient is right handed.) I examined the patient's left knee. She has a full range of motion with good stability, no swelling, no tenderness and no crepitation.

X-ray examinations by each physician were also essentially negative, as indicated by the following excerpt from one of the reports:

There were no findings compatible with recent or old osseous and/or articular trauma. The interspaces were well-maintained, as were the exit foramina and facet articulations. Bilateral absence of the first ribs was noted. There were no findings compatible with metastatic and/or metabolic disease. The osseous texture was not unusual, nor were the soft tissue shadows.

Each of the orthopedic surgeons determined that Ross was not occupationally disabled and that nothing prevented her from returning to work.

Because section 31-30-1007(4), 12 C.R.S. (1985 Supp.), expressly provides that "[t]he Board shall not make a determination of disability unless two of the three physicians examining the applicant agree that a disability exists," the Board denied Ross' application on April 21, 1982. Rule 505.08.05 of the Fire and Police Pension Association Rules and Regulations provides that, in the event a majority of the physicians appointed by the Board does not find a legally compensable disability, the applicant may file a written request for an evidentiary hearing on the limited issue of whether a re-examination should be ordered. Ross filed such a request on May 5, 1982, and the Board conducted a hearing on the request. Ross' personal physician testified at the hearing that Ross' overall condition was "thoracic outlet syndrome," but further stated that there was no objective way to diagnose the condition. The Board granted Ross' request for re-examination and appointed a panel of three thoracic surgeons to conduct the examinations.

The thoracic surgeons found that Ross expressed the same complaints as noted by the physicians on the first panel. One of the thoracic surgeons concluded that Ross was occupationally disabled, but was not able to determine whether this condition was based on "emotional, psychological or physical findings relative to thoracic outlet syndrome." The second thoracic surgeon was of the opinion that Ross, although unable to perform her assigned duties, could perform other types of police work. 5 The third thoracic surgeon declined to render an opinion until further objective testing could be performed. At a final hearing conducted on August 20, 1982, at which both the Board's medical advisor and Ross' attorney made oral arguments to the Board, the Board once again denied Ross' application.

Relying on both section 24-4-106, 10 C.R.S. (1982) of the State Administrative Procedure Act and C.R.C.P. 106, Ross filed a petition for judicial review in the Denver District Court. She claimed that the Board had exceeded its jurisdiction or abused its discretion in denying her application at the final hearing on August 20, 1982, by considering the reports of the first panel of orthopedic surgeons. She also contended that the evidence overwhelmingly supported a determination that she was occupationally disabled. The district court held that the Board's decision was reviewable under the standards of the State Administrative Procedure Act, in particular section 24-4-106(7), 10 C.R.S. (1982), which requires that any agency action be supported by substantial evidence when the record is considered as a whole. The district court then took note of Fire and Police Pension Association (FPPA) rule 505.08.05, which states that "[i]f the Board orders a re-examination, then the case shall proceed in all particulars as a new case." This rule, in the district court's view, prohibited the Board from considering the reports by the first panel of orthopedic physicians at the final Board hearing on August 20, 1982. The district court held that the Board abused its discretion by taking such evidence into account and that, in the absence of such evidence, nothing in the record supported the Board's denial of Ross' application. The district court, therefore, vacated the Board's decision and ordered the Board to grant Ross occupational disability retirement benefits retroactive to March 30, 1982.

The Board appealed to the court of appeals. Noting that it would reach the same result under either the review standard of the State Administrative Procedure Act or the standard applicable to C.R.C.P. 106, the court of appeals reversed the judgment because, in its view, there was nothing in the record to indicate that the Board had considered the opinions of the initial panel of orthopedic surgeons in reaching its ultimate determination and that, in addition, there was sufficient evidence in the record to support the Board's denial of Ross' application. We granted certiorari to consider whether the court of appeals erred in reversing the district court's judgment granting occupational disability retirement benefits to Ross.

II.

Before considering the validity of the Board's denial of occupational disability retirement benefits to Ross, it is appropriate that we address two preliminary matters: (1) the appropriate standard applicable to a judicial review of the Board's decision; and (2) the particular fund of evidence which the Board could properly consider in reaching its final decision.

A.

The district court applied the standard of review applicable to state agency actions as set out in section 24-4-106(7), 10 C.R.S. (1982), of the Administrative Procedure Act. Under this standard, a reviewing court can reverse a state agency's decision if "the agency action is ... unsupported by substantial evidence when the record is considered as a whole." See DeScala v. Motor Vehicle Division, 667 P.2d 1360 (Colo.1983); Lassner v. Civil Service Commission, 177 Colo. 257, 493 P.2d 1087 (1972). This standard requires that there be more than merely "some evidence in some particulars" to support the agency decision. Lassner, 177 Colo. at 259, 493 P.2d at 1089 (emphasis in original). In contrast to this "substantial evidence" standard, judicial review pursuant to C.R.C.P. 106(a)(4) 6 permits a district court to reverse a decision of an inferior tribunal only if there is "no competent evidence" to support the decision. E.g. Corper v. City and County of Denver, 191 Colo. 252, 552 P.2d 13 (19...

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