Russell v. Odum

• Decision Date: 25 January 1980
• Docket Number: No. 58105,58105
• Citation: 269 S.E.2d 27,154 Ga.App. 547
• Parties: RUSSELL et al. v. ODUM.
• Court: Georgia Court of Appeals

Page 27

269 S.E.2d 27

154 Ga.App. 547

RUSSELL et al. v. ODUM.

No. 58105.

Court of Appeals of Georgia.

Argued July 2, 1979.

Decided Dec. 10, 1979.

Certiorari Denied Jan. 25, 1980.

James H. Weeks, Decatur, for appellants.

William S. Olsen, E. Christopher Harvey, Decatur, for appellee.

SHULMAN, Judge.

This is the second appearance of this case involving a police officer's claim for disability retirement benefits. In the earlier appeal, this court directed the superior court to remand the case to the Pension Board of DeKalb County so that the board could conduct a hearing as to the extent and nature of the officer's disability. See Russell v. Odum, 147 Ga.App. 419, 249 S.E.2d 137. After conducting a hearing, the board again denied the application for benefits. In the ensuing review via certiorari, the superior court again sustained the certiorari and again entered a final order directing the board to grant disability benefits to appellee. On appeal from this judgment, we reverse.

1. The pension board found as a matter of fact that "Mr. Odum cannot perform the duties which he did perform as deputy sheriff in his original job." Appellee submits that this finding was repugnant to and necessarily precluded the board's conclusion that appellee-Odum was not totally and permanently disabled.

Implicit in the pension board's denial of disability benefits was the board's legal conclusion that a pension applicant is not "totally and permanently" disabled if the applicant is capable of performing duties other than those required of the applicant at the time of the disability. Thus, at the crux of the disagreement between the pension board and appellee lies the meaning of "totally and permanently disabled," which term is undefined in the DeKalb County Pension Act. See generally Ga.L. 1962, p. 3088, Sec. 8, Subsec. 4A; Sec. 12.

A. Although "(s)tatutes creating pension funds resulting from employment are generally to be given a liberal construction in favor of the employee (cit.) . . . the pre-eminent rule governing the construction of statutes is to carry into effect the legislative intent and purpose." City Council of Augusta v. Kennen, 150 Ga.App. 844, 845, 258 S.E.2d 651. See also Drost v. Robinson, 194 Ga. 703(2), 22 S.E.2d 475.

B. Under Section 13 of the DeKalb County Pension Act, the board is empowered to require annual examinations of pensioners to review continuing eligibility for disability benefits. Under that section if a pensioner is found not to be disabled (i. e., totally and permanently disabled), then benefits may be terminated after a hearing provided that the pensioner is "tendered a position . . . having the same or equal pay with that position which such participant held at the time the disability pension was granted."

Thus, this provision plainly indicates a legislative determination that the disabled employee's ability or inability to resume the duties performed by the employee prior to the disability cannot be dispositive of whether an employee is totally and permanently disabled. Rather, the Pension Act contemplates that an employee capable of performing in another capacity is not entitled to disability pension benefits (provided an alternative position of at least equal pay is tendered).

In furtherance of this legislative scheme, we expressly hold that the initial determination of disability pension eligibility should be governed by this same standard. Accord, Russell v. Odum, supra, which impliedly adopted this holding. See generally Hoy v. Fireman's Pension Fund, Wyo., 540 P.2d 531, holding that an injured active fire fighter was not entitled to disability pension benefits where the employee was capable of performing "floor-watch duty." Compare Knight v. Board of Trustees etc. Pension Fund of the Columbia Fire Dept., 269 S.C. 671, 239 S.E.2d 720, representing a contrary holding but involving a statutory scheme treating disability as the disabled employee's inability to resume the duties of the employee's former position. Therefore, the pension board properly considered the applicant's ability to perform substitute employment (of at least equal pay)...