Snider v. Board of Trustees for Oklahoma Police Pension and Retirement Bd.

• Decision Date: 17 October 1989
• Docket Number: No. 69168,69168
• Citation: 1989 OK 136,782 P.2d 911
• Parties: Lonnie D. SNIDER, Appellant, v. BOARD OF TRUSTEES FOR the OKLAHOMA POLICE PENSION AND RETIREMENT BOARD, Appellee.
• Court: Oklahoma Supreme Court

Page 911

782 P.2d 911

1989 OK 136

Lonnie D. SNIDER, Appellant, v. BOARD OF TRUSTEES FOR the OKLAHOMA POLICE PENSION AND RETIREMENT BOARD, Appellee.

No. 69168.

Supreme Court of Oklahoma.

Oct. 17, 1989.

As Corrected on Denial of Rehearing Nov. 14, 1989.

Certiorari to the Court of Appeals, Division 2.

Appeal from ruling of Court of Appeals which affirmed district court decision upholding Oklahoma Police Pension and Retirement Board's denial of permanent disability benefits to appellant.

CERTIORARI GRANTED.

COURT OF APPEALS' OPINION SUSTAINED IN PART AND VACATED IN PART; CASE REMANDED TO OKLAHOMA POLICE PENSION AND RETIREMENT BOARD.

Joe B. Reeves, Lawton, for appellant.

Robert H. Henry, Atty. Gen. by William D. LaFortune, Asst. Atty. Gen., Oklahoma City, for appellee.

HODGES, Justice.

Appellant was employed as a police officer with the Lawton Police Department for nearly five years before he was terminated due to a hearing loss which made him physically incapable of performing the regular field duties of a police officer. The appellant had requested that he be assigned to a service position that did not require the capability of performing regular field duties. However, he was told that no such position existed in the Lawton Police Department. On appeal to the City of Lawton Personnel Board (hereinafter City Board) the termination was affirmed.

At the same time that he was appealing to the City Board, the appellant filed a workers' compensation claim and was adjudged to have a binaural hearing loss of 31.75% that arose out of and in the course of employment. ¹ As a result of his termination being upheld by the City Board the appellant then made application to the Oklahoma Police Pension and Retirement Board (hereinafter State Board) for a disability pension which was denied due to "insufficient evidence ... that would show that said hearing loss was incurred while in, and as a consequence of [the appellant's] duty as a police officer for the City of Lawton." An appeal of this ruling to the District Court of Oklahoma County resulted in the State Board's denial being affirmed on the basis of "substantial evidence to support the ... Administrative Decision ..." The Court of Appeals reviewed the State Board's denial and the district court's supporting decision and affirmed "in all respects." We granted certiorari.

I.

The first issue appellant raises is that of venue requirements for his appeal to district court. He argues that he properly filed simultaneous appeals to the State Board decision in both Comanche County and Oklahoma County pursuant to 75 O.S. § 318(2) and 11 O.S. § 50-129. He then contends that due to his significant contacts in Comanche County and based on the doctrine of forum non conveniens, the appeal should have been properly set and heard in Comanche County rather than Oklahoma County.

We agree with that portion of the Court of Appeals' opinion finding 11 O.S.1981 § 50-129 to be a statute of venue setting all appeals to decisions of the State Board in Oklahoma County District Court. When the venue of an action is statutorily authorized in only one county, general venue statutes are inapplicable. Thus, the proper forum is Oklahoma County. Schwartz v. Diehl, 568 P.2d 280 (Okla.1977).

II.

Appellant's second argument is that the ruling of the State Board was not supported by substantial evidence. Generally, the standard of review to be applied to administrative board decisions is to determine whether or not the order is supported by substantial evidence or affected by error of law committed at the hearing. Oklahoma Park, Inc. v. Oklahoma Horse Racing Comm.'n, 716 P.2d 666-67 (Okla.1986); Humana Hosp. Corp. v. Oklahoma Health Planning Comm'n, 705 P.2d 175, 178 (Okla.1985). Accordingly, we have reviewed the record and find that the order of the State Board was against the substantial evidence presented and should be vacated.

In its "Findings of Fact" the State Board concludes that while the appellant had sustained a hearing loss the evidence did not sufficiently link the hearing loss with the appellant's job as a police officer. The following facts were established at the hearing:

(1) The appellant had been exposed to gunshots fired on the shooting range and police car sirens set off in close proximity to the appellant as a practical joke;

(2) the appellant's off-duty hobby was playing an electrically amplified guitar from which he had (2 years prior to noticing a hearing loss) suffered an electrical shock which required medical treatment for burns to his hand;

(3) the appellant was not able to properly wear protective earmuffs on the firing range because he could not hear the firing instructor; this had become increasingly more common since he had first noticed his hearing loss approximately one year prior to the State Board hearing;

(4) the appellant testified to a blow to the head (incurred approximately 1 1/2 years prior to the State Board hearing) received while making a DUI arrest although no medical treatment was received nor did any medical report attribute hearing loss to this incident.

In addition to the establishment of the aforementioned facts there were two doctors' medical reports admitted into evidence at the hearing. One of these reports concluded:

"Based on the patient's history and established knowledge regarding noise output of hand and shoulder weapons, it is clinically accepted that he has been exposed to hazardous noise during his semi-annual firearms qualifications courses.... The circumstances of additional noise exposure by reason of use of his emergency siren in the incident of practical joking are also recognized as contributors to this patient's hearing loss." (emphasis added)

The second medical report did not specifically state a cause of loss of hearing but did find the appellant incapable of performing "duties as a police officer where he is exposed to guns, sirens or any other types of loud noises as he is a very sensitive individual to this." Neither of these reports were controverted at the hearing by any other expert medical testimony.

Further, the State Board agreed to take note of the Workers' Compensation Court Order that specifically found the appellant to have suffered a combined hearing loss of 31.75% that arose out of and in the course of his employment. This order was never appealed and is now final.

In order to make a complete review of all of the evidence presented (including the Workers' Compensation Court Order) it is necessary to compare the evidentiary standards used by the Workers' Compensation Court and those used by the State Board. Under the Workers' Compensation Act a compensable injury must be one that arises out of and in the course of employment, 85 O.S.1981 § 11; Schell v. Blue Bell, Inc., 637 P.2d 914 (Okla.App.1981). The phrase "arises out of" has been construed as requiring a causal relationship between the act engaged in at the time of the injury and the requirements of the job. The phrase "in the course of" has been defined as relating to the time, place and circumstances under which the injury was sustained. Fudge v. University of Oklahoma, 673 P.2d 149 (Okla.1983).

The Police Pension and Retirement System authorizes the State Board to pay disability benefits to members incurring a disability while in, and in consequence of, the performance of duty as an officer. 11 O.S.1981 and Supp.1988 § 50-115(B)(1). Once such a finding has been made an award for permanent partial disability benefits is calculated on the basis of percentage of impairment to the whole person as defined by the standards outlined in the "American Medical Association's Guides to the Evaluation of Permanent Impairment." 11 O.S.Supp.1988 § 50-115(B)(2). Interestingly enough these guidelines for compensation are the same as those used by the Workers' Compensatio...