State ex rel. Dumas v. Bd. of Trustees of Police and Firemen's Disability and Pension Fund

• Decision Date: 09 July 1986
• Docket Number: No. 85-1648,85-1648
• Citation: 25 OBR 8,25 Ohio St.3d 10,494 N.E.2d 1129
• Court: Ohio Supreme Court
• Parties: , 25 O.B.R. 8 DUMAS, Appellee, v. BD. OF TRUSTEES OF the POLICE AND FIREMEN'S DISABILITY AND PENSION FUND et al., Appellants.

Page 10

25 Ohio St.3d 10

494 N.E.2d 1129, 25 O.B.R. 8

[The STATE, ex rel.] DUMAS, Appellee, v. BD. OF TRUSTEES OF the POLICE AND FIREMEN'S DISABILITY AND PENSION FUND et al., Appellants.

No. 85-1648.

Supreme Court of Ohio.

July 9, 1986.

Patrick A. D'Angelo, Cleveland, for appellee.

Anthony J. Celebrezze, Jr., Atty. Gen., and Richard A. Green, Columbus, for appellants.

PER CURIAM.

Appellants argue first that because appellee is already receiving disability benefits he is no longer a "member of the fund" entitled to seek an increased disability award. This argument was addressed and rejected in State ex rel. Manders v. Bd. of Trustees (1981), 68 Ohio St.2d 79, 428 N.E.2d 151 . In that case, retired members of the fund sought a reconsideration of their partial disability awards claiming their conditions had worsened and they should be considered permanently and totally disabled. We held at 80, 428 N.E.2d 151:

"R.C. 742.01(E) defines '[m]ember of the fund' as ' * * * any person who is contributing a percentage of his annual salary to the police and firemen's disability and pension fund created under section 742.02 of the Revised Code or who is receiving a disability benefit or pension from such fund as a result of service in a police or fire department of a municipal corporation or township * * *.' (Emphasis added.)

"Thus, appellees are members of the fund within the purview of R.C. Chapter 742. The provisions of R.C. 742.37(C)(2) are mandatory and require that the board pay permanent and total disability benefits when '[a] member of the fund * * * is permanently and totally disabled as the result of the performance of his official duties.' Under these provisions, appellant has a clear legal duty to consider appellees' applications."

Appellants now claim that R.C. 742.37(C)(9) overrides the definition contained in R.C. 742.01(E) and construed in Manders. R.C. 742.37(C)(9), at the time herein relevant, provided:

"Notwithstanding divisions (A), (B) and (C)(1) to (8) of this section, no person shall be eligible to receive a disability benefit or normal service pension benefit, or other benefit while contributing to the police and firemen's disability and pension fund; provided, however, that any person who applies for a normal service pension benefit or other benefit or is granted a disability benefit from the fund may elect to waive such benefit for the period in which he desires to remain in the active service of a municipal police or fire department or township fire department, and shall not be excluded from continued membership in the police and firemen's disability and pension fund. Any person who elects to receive any benefit as enumerated above shall be barred from future membership in the police and firemen's disability and pension fund. However, nothing in this section shall prevent a person from continuing or resuming employment as an employee as that term is defined in division (C) of section 742.01 of the Revised Code. " (Emphasis added.)

While this provision does present a potential contradiction, we agree with the court of appeals that it can only be construed to bar a claimant from becoming a contributing member of the fund in the future. It specifically excludes from its terms "employees" who are not contributing members of the fund and thus refers to a status of employment, rather than to retirement. Moreover, the interpretation advanced by appellants contradicts the board of trustees' own regulations which provide for the reconsideration of awards already granted. Ohio Adm. Code 742-3-05(C).

In their second proposition of law, appellants argue that a claimant may not seek an increase in a disability award based on a condition that was not the basis of his original award.

Ohio Adm. Code 742-3-05(C) provides, in relevant part:

"(C) Post-retirement reconsideration

"(1) A member who is receiving a partial disability benefit originally granted subsequent to January 1, 1967, under section 742.37 of the Revised Code, who believes that deterioration of the disabling physical or mental condition has increased the amount of disability, may apply for a reconsideration. Such application shall be on a form prepared by the fund. * * * " (Emphasis added.)

On its face, this regulation could be interpreted to only allow reconsideration of previous claims. However, R.C. 742.37(C), authorizing payment of benefits, provided in part:

"(2) A member of the fund who is permanently and totally disabled as the result of the performance of his official duties as a member of a police or fire department of a municipal corporation or a fire department of a township, shall be paid annual disability benefits until death * * *.

"(3) A member of the fund who is partially disabled as the result of the performance of his official duties as a member of a police or fire department of a municipal corporation...