State ex rel. John E. Richard v. the Board of Trustees of the Police and Firemen's Disability and Pension Fund,
| Decision Date | 24 August 1993 |
| Docket Number | 93-LW-3553,92AP-1722 |
| Parties | State of Ohio ex rel. John E. Richard, Relator v. The Board of Trustees of the Police and Firemen's Disability and Pension Fund, Respondent |
| Court | Ohio Court of Appeals |
IN MANDAMUS
David M. Hollingsworth, for relator.
Lee Fisher, Attorney General, and Jerry K. Kasai, for respondent.
This is an original action in mandamus, submitted upon stipulated evidence and briefs of counsel. There was no oral argument on the merits.
Relator, John E. Richard, seeks a writ of mandamus commanding respondent, The Board of Trustees of the Police and Firemen's Disability and Pension fund ("PFDPF"), to accept and consider relator's post-retirement application for permanent total disability.
The stipulated evidence indicates that relator was employed by the Springfield, Ohio Police Department for twenty-two years. He suffered injuries in the course of his employment and ceased working in October 1983. In November 1983, he applied for permanent total disability retirement benefits but was granted maximum partial disability benefits in February 1984 under R.C. 742.37(C) (3), which benefits he has been receiving since February 1, 1984. In May 1992, relator applied for a change in benefits from maximum partial disability to permanent total disability. On June 25, 1992 PFDPF notified relator that no action would be taken on his application for change in benefits. At the request of relator, PfDPF undertook a review of its decision and, on July 29, 1992) notified relator that its original decision to take no action on his post-retirement application had been confirmed by the board.
At issue in this matter is construction of R.C. 742.37(C) as amended in 1986. The rules promulgated subsequent to that amendment preclude the class of fund members to which relator belongs -- members retired under a maximum partial disability grant -- from applying for increased benefits. Prior to the rules as amended in 1986, the courts had ruled that this class of grantees had a right, under R.C. 742.37(C) and the administrative rules, to be reconsidered for a grant of permanent total disability. The board now asserts that the General Assembly intended to remove this right by the 1986 amendment. We find no intent by the General Assembly in1986 to divest maximum partial disability grantees of their right to post-retirement consideration' for permanent total disability. To the contrary, although the 1986 amendment proscribes age-service benefit grantees from applying for increased benefits, it specifically excepts R.C. 742.37(C) (3) grantees from that proscription. This result is consistent with Ohio law which has historically distinguished disability pensions from age-service pensions.
Relator's original retirement application in 1983 requested a permanent total disability grant of seventy-two percent of his last year's annual salary pursuant to R.C. 742.37(C) (2); but the board granted him only partial disability benefits albeit at the maximum percentage rate allowed for a member with less than twenty-five years of service under R.C. 742.37(C) (3) -- sixty percent of his average annual salary. He accepted the grant, but asserts that he did so only because the February 1984 grant letter advised him that he retained the right to apply for reconsideration in the future.[1] Two years later, after the Genera) Assembly amended R.C. 742.37(C), the board amended Ohio Adm.Code 742-3-05(C)(1) and added Rule 742-3-05(D) effectively foreclosing maximum partial disability grant recipients under R.C. 742.37(C) (3) from applying for an upgrade to permanent total disability status under R.C. 742.37(C) (2). Relator's affidavit states that he was not personally notified of the impending change in the rules nor of the actual change once it became effective in October 1986. Counsel for relator asserts that the change in rules affected a substantive right of relator which had vested at the time of his initial disability grant in 1984.
The board's July 1992 decision not to consider relator's post- retirement application to upgrade his grant from maximum partial disability to permanent total disability, is based on its interpretation of an amendment to R.C. 742.37(C), effective July 24, 1986. That amendment, in pertinent part, added the following language to R.C. 742.37(C):
"With the exception of those persons receiving partial disability benefits under division (C)(3) of this section who may make application for increased benefits as provided in such division, no person receiving a pension or other benefit under division (C) of this section on or after the effective date of this amendment shall be entitled to apply for any new, changed, or different benefit." (Emphasis added.) 1986 Laws of Ohio 5583, R.C. 742.37(C)(9).[2]
The administrative rules in effect when this amendment was enacted allowed for post-retirement reconsideration as follows:
The board's brief admits that the statute did not specifically prohibit a retiree who was receiving partial disability from applying for permanent total disability, but that it had nonetheless not allowed such applications until the Supreme Court of Ohio expressed that right to be in the statute in the case of State ex rel. Manders-O'Neill v. Bd. of Trustees (1981), 68 Ohio St.2d 79. After the General Assembly enacted the amendment to R.C. 742.37(C), the board modified the above rule to read as follows:
Thus, by its Ohio Adm.Code 742-3-05(C)(1), the board effectively overruled Manders-O'Neill on the mistaken belief that the July 24, 1986 General Assembly amendment to R.C. 742.37(C) required such a result.
The relators in Manders-O'Neill were both receiving partial disability benefits from the fund and, like relator herein, were seeking an upgrade to permanent total disability status. In affirming this court's decision, the Supreme Court of Ohio found that the board had a clear legal duty to consider the post-retirement applications of Manders and O'Neill because, though retired and receiving benefits already, they continued to be "members" of the fund for purposes of R.C. 742.37(C). The board was evidently alarmed by the reasoning upon which Manders-O'Neill was founded because, if broadly interpreted, it exposed the fund to a potential onslaught of applications from grantees once retired under age-service provisions and now seeking reclassification under the more generous disability provisions.
To support its claim that the General Assembly intended the 1986 amendment (H.B. 721) to overturn Manders-O'Neill, the board's brief cites as follows from a legislative staff memorandum regarding that bill:
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