Staads v. Board of Trustees of Fireman's Retirement Pension Fund of Sioux City

• Decision Date: 11 June 1968
• Docket Number: No. 52994,52994
• Citation: 159 N.W.2d 485
• Parties: John A. STAADS, Appellee, v. BOARD OF TRUSTEES OF the FIREMAN'S RETIREMENT PENSION FUND OF SIOUX CITY, Edgar S. Higman, Chief of the Fire Department; Robert Wray, City Treasurer; Paul Mahr, Assistant City Attorney; John Donovan, Raymond Mahr, John Murphy and Leonard March, Trustees of the Fireman's Retirement Pension Fund of Sioux City, Appellants.
• Court: Iowa Supreme Court

Page 485

159 N.W.2d 485

John A. STAADS, Appellee, v. BOARD OF TRUSTEES OF the FIREMAN'S RETIREMENT PENSION FUND OF SIOUX CITY, Edgar S. Higman, Chief of the Fire Department; Robert Wray, City Treasurer; Paul Mahr, Assistant City Attorney; John Donovan, Raymond Mahr, John Murphy and Leonard March, Trustees of the Fireman's Retirement Pension Fund of Sioux City, Appellants.

No. 52994.

Supreme Court of Iowa.

June 11, 1968.

Rehearing Denied Sept. 4, 1968.

Paul A. Mahr, City Atty., Sioux City, for appellants.

Gill, Dunkle, Beekley & McCormick, Sioux City, for appellee.

GARFIELD, Chief Justice.

Plaintiff Staads brought certiorari in the district court challenging the legality of the denial by defendant Board of Trustees of the Fireman's Retirement Pension Fund of Sioux City (herein called 'board' or 'pension board') of accidental disability benefits under section 411.6, subds. 5 and 6, Code 1966 upon his retirement as a fireman in the city fire department. The board allowed him ordinary disability retirement benefits under section 411.6, subds. 3 and 4. Following trial upon the record made by the return to the writ and some oral testimony by plaintiff, the court held the evidence did not support the board's order and sustained the writ. The board has appealed.

The medical board referred to in section 411.6 (not the board of trustees of the pension fund) certified plaintiff was mentally or physically incapacitated for further duty as a fireman, such incapacity was likely to be permanent and he should be retired. The controversy is over whether plaintiff is entitled to ordinary disability retirement benefits under 411.6, subds. 3 and 4 or accidental disability benefits under 411.6, subds. 5 and 6.

In order to be entitled to the accidental benefits the member must have 'become totally and permanently incapacitated for duty as the natural and proximate result of an injury or disease incurred in or aggravated by the actual performance of duty at some definite time and place * * *' (411.6, 5)

I. The proceeding before the board was instituted by a written application of the chief of the fire department that plaintiff be granted ordinary disability retirement under Code section 411.6, 3 and 4 on the ground he was physically incapacitated for duty and such disability is likely to be permanent. The board accepted the chief's recommendation, referred the matter to the medical board and agreed that plaintiff be notified of the action taken.

The board met again on June 2 with plaintiff and his attorney present--the same attorney plaintiff has consulted for several years and who represented him upon this appeal. The report of the medical board previously referred to, consisting of three medical doctors, was presented to the pension board. Plaintiff's attorney presented an application that accidental disability benefits be granted under section 411.6, subds. 5 and 6.

Attached to this application was a letter to plaintiff, at his request, from a previous fire chief, dated September 10, 1963, listing injuries plaintiff sustained as shown by his personal record from the time he became a fireman on June 16, 1954. The two injuries relied upon are those which occurred April 28, 1955 and November 10, 1961. On the former date plaintiff injured his back when he slipped and fell on edge of door of 'rig.' He was attended by a doctor at hospital, sent home and off duty one day and three hours. On November 10, 1961 a bundle of heavy, wet paper bags was dropped from a truck on plaintiff's neck, causing a stiff neck. No doctor was called, no time lost.

Also attached to the above application was a letter to plaintiff's attorney at his request from Dr. Mumford dated August 27, 1963. The letter stated that on February 27, 1963 a total laminectomy of plaintiff's fifth lumbar vertebra and a partial hemi-laminectomy of the first sacral segment and the fourth lumbar vertebra were performed. Laminectomy is the surgical removal of the posterior arch of a vertebra. This letter contained this: 'Thickening of the ligamentus structures, which in my opinion was of a chronic nature was present, which meant there was difficulty older than the acute symptoms which caused him to be admitted to the hospital. There was also an acute rupture of the disc * * * I am sure was of only short duration. Pathologic study of the removed material revealed chronic inflammation of ligamentus structures, which would mean difficulty prior to this acute episode of pain. In addition of course, the acute ruptured disc was denoted. I trust this is the information you desire.'

The surgery this letter refers to was preceded by an injury to plaintiff's back on January 25, 1963, which had no connection with his duties as a fireman, while working for I-Go Moving and Storage Company. While off duty as a fireman plaintiff had worked for I-Go and also at concrete construction. Plaintiff was bent over about to pick up a barrel on January 25 when he told a coworker his back hurt and he couldn't straighten up. He was then told to go into the truck and pack things coworkers would bring him. He finished out the day, the last he worked for I-Go.

At the hearing before the board on June 2 the entire record of injuries reported by plaintiff was presented together with several other letters from Dr. Mumford. On November 12, 1965 plaintiff reported the back fell from a chair in which he was sitting, he 'twisted lower back and waist, just a small amount of discomfort, not attended by a physician.'

Plaintiff next reported that on April 6, 1966 he was sweeping down some steps when the broom handle broke, causing him to lose his balance and fall down the remaining four steps to the cement floor, sprained or strained back and hips, a shoulder and an arm. He was attended by a physician.

The final injury plaintiff reported--he was required to report all injuries--occurred on April 5, 1967. To avoid injury from a falling alarm board that was being removed plaintiff twisted his back and pulled back muscles, causing added pain to back and legs. He consulted his physician, Dr. Mumford, who concluded he had strained his back and prescribed a muscle relaxant. The doctor expressed the opinion no particular difficulty would result from this incident.

The record plaintiff submitted to the board as shown by the return to the writ of certiorari reveals that following the surgery on his spine on February 27, 1963, the surgeon released him to return to light work as a fireman as of July 5, and to an eight-hour day on September 7, 1963 with th equalification he must continue treatments. However on September 8 plaintiff again underwent surgery--this time for weakness of his legs and 'for re-exploration of the lumbar four and five intervertebral space by Dr. Brown' who permitted him to return to light work again on September 28, 1964.

There was ample evidence before the board, furnished by plaintiff, his attorney or his surgeon, to support the conclusion that plaintiff suffered a herniated disc or discs in his off-duty injury on January 25, 1963 which led to the spinal fusion operation a month later. A written demand by the attorney, dated November 8, 1963, that the city 'pay the hospital and medical expenses in whole or in part' following the off-duty injury referred to the injuries of April 28, 1955 and November 10, 1961 and then recited 'the actue injury to L4--5 segment of the lumbar spine was as a result of an injury sustained while not in the performance of his duties as a fireman but on other employment with I-Go Company.' The demand agreed that if the city would pay the entire medical and hospital expenses plaintiff would subrogate to the city the proper share thereof determined to be a part of his Workmen's Compensation claim against I-Go.

A written 'Notice of Service Connected Disability' evidently prepared by plaintiff's attorney, dated December 2, 1964, of which the city attorney accepted service January 14, 1965, reasserted plaintiff's theory of his claim to accidental disability benefits. This paper again mentioned the service connected injuries of April 1955 and November 1961 and alleged that therein 'he suffered a condition to his back which was aggravated by an off duty injury.'

It is evident the board did not accept this theory. The evidence before it was not such it was compelled to do so. A report to the fire chief from plaintiff's surgeon, furnished at plaintiff's request, states that following the 1955 injury 'he was seen by a physician, apparently X-rays were taken and he stated they were negative.' There is other evidence to like effect.

Plaintiff relies upon this statement in the same report: 'From his history, the patient could have suffered injury severe enough to weaken the annular ligament of the intervertebral disc which at a later time could cause rupture and the symptoms of which he complained.' No doctor expressed the opinion plaintiff's fall in April, 1955 caused or aggravated the herniated disc or discs found nearly eight years later after plaintiff performed the normal duties of a fireman and did such heavy off-duty work as concrete construction and moving furniture. The report by plaintiff of his injury in November 1961 did not mention injury to his back although there is some other testimony he then complained of pain or discomfort there. In any event, as stated, no doctor was called and no time was lost from his duties.

Plaintiff's surgeon also reported to his attorney on November 10, 1964 and at other times that he was 30 percent permanently disabled, 20 percent of which was the result of his recent injury (we take this to mean the off-duty injury) and 10 percent was a result of 'pre-existing condition.' The report expressed no opinion as to the cause of the pre-existing condition.

The oral testimony of plaintiff at the hearing on the writ of certiorari (he did not testify at the hearing before the board) was offered 'as explanatory of the matters...