Spencer v. Yerace

• Decision Date: 11 May 1971
• Docket Number: No. 13047,13047
• Citation: 155 W.Va. 54,180 S.E.2d 868
• Court: West Virginia Supreme Court
• Parties: Gene R. SPENCER v. Joseph YERACE, et al., as members of the Board of Trustees of the Fairmont Policemen's Pension or Relief Fund, et al., etc.

Page 868

180 S.E.2d 868

155 W.Va. 54

Gene R. SPENCER v. Joseph YERACE, et al., as members of the Board of Trustees

of the Fairmont Policemen's Pension or Relief

Fund, et al., etc.

No. 13047.

Supreme Court of Appeals of West Virginia.

Submitted April 20, 1971.

Decided May 11, 1971.

Syllabus by the Court

Under the statute, Section 18, Article 6, Chapter 8, Code, 1931, as amended, in effect when his disability occurred, a member of the police department of a municipality who is permanently disabled to the extent that he can not perform all the oridinary services of an active policeman, and who has satisfied the other requirements of the statute, is entitled to the pension provided by the statute and it is the duty of the Board of Trustees of the Policemen's Pension or Relief Fund of the municipality to award him such pension from the date of the occurrence of such disability; and such duty may be enforced in a mandamus proceeding.

J. Patrick Bower, Clarksburg, Ross Maruka, Fairmont, for appellant.

Gary K. Rymer, Fairmont, John S. Sibray, Charleston, for appellees.

HAYMOND, Judge.

This is an appeal, granted January 18, 1971, upon the application of the petitioner, Gene R. Spencer, from the final judgment of the Circuit Court of Marion County, West Virginia, rendered October 20, 1970, which denied the petitioner a policemen's permanent disability pension and certain other relief for which he prayed in his petition.

The relief which the petitioner seeks in this mandamus proceeding instituted in the Circuit Court of Marion County, West Virginia January 30, 1970 is a writ to compel the defendants, Joseph Yerace, James Fox, Edward De Vito, Junior Slaughter and Mayor Albert F. Robinson, as members of the Board of Trustees of the Policemen's Pension or Relief Fund of the City of Fairmont, herein sometimes referred to as Trustees, and Mayor Albert F. Robinson, William G. Meyer, Forrest L. Springer and William MacOlvin, as members of the Board of Directors of the City of Fairmont, West Virginia, a municipal corporation, to cause a board of medical examiners composed of at least three physicians to be convened to determine if the petitioner is so physically or mentally permanently disabled as to render necessary his retirement from all services in the police department of the city of Fairmont, and to file a report of such examination; to promulgate adequate rules and regulations as to how temporary disability shall be paid; to pay the petitioner immediately twenty-six weekly payments of temporary disability; to evaluate his claim for disability in an impartial manner; and in effect to award the petitioner a pension by reason of his permanent physical and mental disability as provided by Section 18, Article 6, Chapter 8, Code, 1931, as amended, before that statute was amended by Chapter 86, Acts of the Legislature, 1969, regular session, effective July 1, 1969 which now appears as Section 24, Article 22, Chapter 8, Code, 1931, as so amended.

Leave to move to reverse having been granted this proceeding was submitted for decision on April 20, 1971 upon the motion of the petitioner to reverse, the record, and the briefs and the oral arguments of the attorneys for the respective parties.

The material facts are not disputed and the question for determination is whether, upon the undisputed facts, the petitioner is entitled to a permanent disability pension under the applicable provisions of the statute in effect when he became disabled in 1969, which are:

'If any member of such fire department or police department of any such municipality shall become and be found upon examination by a majority of a board of medical examiners, which board shall consist of not less than three physicians appointed by the board of trustees, to have become so physically or mentally permanently disabled by reason of services rendered in the performance of his duties in such department, as to render necessary his retirement from all service in such department, or if any member who has been such a member of either of such departments for a period of not less than five consecutive years preceding his disability become and be found upon such an examination to have become so physicially or mentally permanently disabled, regardless of the cause therefor, as to render necessary his retirement from all services in such department, such board of trustees shall retire such permanently diabled persons from all services in such department; and said board of trustees of such pension or relief fund shall authorize the payment to such permanently disabled persons monthly from the pension fund the amounts as fixed by the rules hereinafter provided for. If any member of such department shall at any time be injured or become sick, so as to render such member temporarily disabled, he shall be paid from said pension or relief fund the amount to be determined by the rules established, as aforesaid, during such disability for not exceeding twenty-six weeks. No person shall be eligible for any pension unless such member shall have presented himself for an examination at the time of his appointment to the department and his condition was then approved by a majority of a board of medical examiners appointed as aforesaid by such pension board: Provided, however, that this provision shall not apply to any person who is a member of either of said departments at the time of the enactment of this law.

'Any person who has been heretofore, or who shall hereafter be, allowed a pension under the provisions of this article may be required by such board to be re-examined at any time and if he is then not disabled as aforesaid he shall be ordered by the mayor or other chief executive officer of the municipality to return to duty in his former position in the fire or police department, as the case may be, and his pension discontinued: Provided, however, that this provision shall not apply to any person until such person can and shall be restored to his former position in such department.'

The petitioner became a member of the Fairmont police department October 1, 1959 and served continuously on active duty as a member of the department until January 26, 1969, During his service he attained the rank of sergeant. In January 1969 he was advised by his physician that he was incapable of performing the duties of a police officer. Under date of February 4, 1969 he applied in writing to the Board of Trustees of the Policemen's Pension or Relief Fund of the City of Fairmont for a permanent disability pension by reason of physical injury on January 19, 1967 while on duty as a patrolman. By letter dated February 15, 1969 the petitioner was informed by the Trustees that his request for permanent disability pension had been denied and the letter contained a request that the petitioner 'furnish the pension board with medical reports showing us why you should be put on disability pension.'

After some correspondence between an attorney of the petitioner and a member of the board of trustees the petitioner was separately examined on April 29 by three physicians who filed separate reports of his condition, dated April 29, May 2, and May 21, 1969 but they were not convened as a board of examiners to examine the petitioner and they made no finding as to disability. After his examination by those doctors the petitioner instituted this mandamus proceeding and the court issued a rule returnable February 14, 1970 and a hearing was held on that day.

By order entered March 6, 1970, the court found that the applicable statute had not been complied with and ordered the Trustees to appoint a board of examiners consisting of three physicians to examine the petitioner and determine whether he was physically or mentally permanently disabled from performing his duties as a police officer of the city of Fairmont from and after January, 1969. Pursuant to that order the Trustees appointed a board of medical examiners consisting of Doctors Robert S. Wilson, R. T. Humphries and L. Dale Simmons who, after examining the petitioner on March 31, 1970, reported in writing that the petitioner 'Is so physically or mentally permanently disabled as to render necessary his retirement from all services in the Police Department in the City of Fairmont.' To that report, however Doctor Humphries appended a supplemental written statement that the petitioner 'would not be able to do heavy police work that required handling drunks or arrests for fear of injuring neck. He could be able to do light jobs and desk work.' By separate notations on June 4th and 5th, 1970, Doctors Wilson and Simmons concurred in the supplemental statement of Doctor Humphries. On the basis of the supplemental statement to the effect that the petitioner could perform light jobs or desk work, the Trustees rejected the...