Russell v. Odum, 56160

• Decision Date: 05 October 1978
• Docket Number: No. 56160,56160
• Citation: 147 Ga.App. 419,249 S.E.2d 137
• Parties: RUSSELL et al. v. ODUM.
• Court: Georgia Court of Appeals

Page 137

249 S.E.2d 137

147 Ga.App. 419

RUSSELL et al. v. ODUM.

No. 56160.

Court of Appeals of Georgia.

Argued June 26, 1978.

Decided Oct. 5, 1978.

James H. Weeks, Decatur, for appellants.

Harvey, Willard, Elliott & Olsen, E. Christopher Harvey, William S. Olsen, Alan C. Harvey, Decatur, for appellee.

BELL, Chief Judge.

Appellee, a deputy sheriff of DeKalb County, applied to the Pension Board of DeKalb County for disability retirement. The board, without granting appellee a hearing, denied the application. He then sought review via a writ of certiorari to the superior court. The court sustained the certiorari and entered an order directing the board to grant disability retirement benefits to the appellee. The board has appealed. Held :

Section 12 of the Act establishing the Pension Board of DeKalb County, Ga.L.1962, pp. 3088, 3101, provides that the applicant for a disability pension shall submit the signed certificate from a licensed practicing physician of Georgia certifying to the disability of the applicant. This statute then requires the Pension Board to obtain another examination by the county physician or a physician named by the board "who likewise shall certify the physical ability or disability of the applicant . . ."; that in the event the physicians "Generally agree upon disability" the fact of disability shall be conclusive and the board shall enter an order granting a pension in the proper amount. This same law goes on to provide that in the event the two physicians disagree, the board "shall conduct a hearing for the purpose of determining the true condition of the applicant . . ."; and at the hearing witnesses may be examined under oath for and against the application and both the board and the applicant may be represented by counsel. The appellee in compliance with the above submitted a letter from his physician who in summary certified that appellee had a 100% Disability to his left foot and that he was not "capable of returning to work in the sheriff's department . . ." The board then had appellee examined by its physician. The latter in his report stated: ". . . I would specifically feel that he is capable of being a sheriff's deputy or any other county job available provided that it did not entail strenuous physical activity. I see no reason that he could not perform in any type supervisory job or sedentary occupation such as could be arranged as a dispatcher of equipment, etc. . . . In summary, this man is probably...