Stull v. Firemen's Pension & Relief Fund

Decision Date02 July 1998
Docket NumberNo. 24757.,24757.
Citation504 S.E.2d 903,202 W.Va. 440
CourtWest Virginia Supreme Court
PartiesBrian E. STULL, Plaintiff Below, Appellee, v. The FIREMEN'S PENSION AND RELIEF FUND OF the CITY OF CHARLESTON, Defendant Below, Appellant.

John F. Dascoli, Andrew J. Katz, The Segal Law Firm, Charleston, for the Appellant.

J. David Cecil, Armada & Cecil, Hurricane, for the Appellee. WORKMAN, Justice:

In this declaratory judgment action, the appellant, the Firemen's Pension and Relief Fund of the City of Charleston, appeals from final orders entered in the Circuit Court of Kanawha County, West Virginia, on November 20, 1996, and April 2, 1997. Pursuant to the order of November 20, 1996, the circuit court directed the Board of Trustees of the Fund to pay the appellee, Brian E. Stull, "total and temporary" and "total and permanent" disability benefits with regard to an injury he received in the performance of his duties as a firefighter. W.Va.Code, 8-22-23a [1982]. Pursuant to the order of April 2, 1997, the circuit court awarded Stull $3,500 in attorney fees. The Board of Trustees contends, inter alia, that Stull failed to exhaust his administrative remedies and that, therefore, the ruling of the circuit court that Stull was entitled to disability benefits, either temporary or total, constituted error. Moreover, the Board of Trustees contends that the award of attorney fees was unwarranted.

This Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel. For the reasons stated below, this Court affirms Stull's entitlement to total and temporary disability benefits. We remand this action, however, for a reconsideration of his entitlement to total and permanent disability benefits. Moreover, this Court reverses the award of attorney fees. In addition, in discussing these matters, this Court clarifies the procedural due process rights of applicants for such benefits as first addressed by this Court in Barron v. Board of Trustees of the Policemen's Pension & Relief Fund, 176 W.Va. 480, 345 S.E.2d 779 (1985).

I.

The appellee, Brian E. Stull, was employed as a firefighter by the City of Charleston, West Virginia. As the record before this Court indicates, on September 14, 1989, Stull sustained a serious injury to his right knee while kicking down a door of a burning apartment building. It is undisputed that Stull received the injury in the performance of his duties. According to Stull, the injury rendered him totally and permanently disabled for employment as a firefighter.

Subsequent to various medical procedures, Stull, by letter dated September 30, 1994, applied to the Firemen's Pension and Relief Fund of the City of Charleston for total and permanent disability benefits. Submitted with the letter were various medical reports in support of the claim. The letter made no mention, however, of any claim for total and temporary disability benefits.1

In response, the Board of Trustees of the Fund, pursuant to W.Va.Code, 8-22-23a(a) [1982], directed Stull to be examined by two physicians in order to determine the validity of the claim. The physicians were Dr. Luis A. Loimil and Dr. J. Hugh Wiley. According to Dr. Loimil, Stull's injury rendered him permanently disabled and unable to work as a firefighter. Dr. Wiley indicated, however, that, although Stull appeared to be temporarily disabled, he could return to his employment in the future.2 As a result of the differing conclusions of Dr. Loimil and Dr. Wiley, Stull was directed to be examined by a third medical expert, Dr. Laura Lynn Czulewicz.3 Consistent with Dr. Wiley, Dr. Czulewicz concluded that, although Stull appeared to be temporarily disabled, he could return to his employment in the future.4

Soon after, by letter dated March 22, 1995, the Board of Trustees notified Stull that his application for total and permanent disability benefits had been denied at a meeting conducted by the Board. The record indicates that Stull was never notified of the meeting. Moreover, the letter of March 22, 1995, set forth no statement of reasons for the denial. Nor did the letter inform Stull of his right to appear before the Board upon his own behalf or inform him of his right to contest the Board's decision. The March 22, 1995, letter stated in its entirety:

Mr. Stull you are hereby notified of the Board of Trustees' decision concerning your application for permanent and total disability benefits dated September 30, 1994. The Board of Trustees of The Firemen's Pension and Relief Fund of the City of Charleston in the meeting of March 21, 1995 voted to refuse disability benefits.

Thereafter, Stull wrote to the Board of Trustees requesting a written outline of the reasons for the Board's decision. Moreover, Stull asserted that he had a right "to show the board of trustees as to the reasons that I qualify for benefits." Until Stull subsequently hired an attorney, the Board never responded.5

On April 15, 1996, Stull filed an action for declaratory judgment in the Circuit Court of Kanawha County. W.Va.R.Civ.P. 57; W.Va. Code, 55-13-1 [1941], et seq. In the action, Stull sought declaratory relief as to his entitlement to total and temporary and total and permanent disability pension benefits. In addition, Stull sought an award of attorney fees. Subsequently, the Board of Trustees moved to dismiss the action for failure to exhaust administrative remedies. Specifically, the Board asserted that the action should be dismissed because (1) Stull never requested total and temporary benefits in his application to the Board and (2) Stull never appealed the March 1995 denial of total and permanent benefits.

As reflected in an order entered on August 15 1996, the circuit court determined that Stull's September 1994 application for benefits, in effect, raised an issue concerning his alleged total and temporary disability. Pursuant to that order, the Board was directed to obtain additional medical evaluations. Thereafter, in September 1996, reports were received from Dr. Edward J. Doyle, Jr., and Dr. A.E. Landis, both of whom indicated that Stull was permanently (rather than simply temporarily) disabled and unable to work as a firefighter. Soon after, the Board of Trustees, on October 17, 1996, granted Stull total and temporary disability pension benefits prospectively from that date.

Nevertheless, pursuant to the final order of November 20, 1996, the circuit court, emphasizing the reports of Dr. Doyle and Dr. Landis, directed the Board of Trustees of the Fund to pay Stull total and temporary benefits from September 30, 1994, the date of Stull's application for benefits, to October 17, 1996. Furthermore, the circuit court directed the Board to pay Stull total and permanent disability benefits as of October 17, 1996. Subsequently, on April 2, 1997, the circuit court awarded Stull $3,500 in attorney fees with regard to the prosecution of the declaratory judgment action.

II.

This Court, in Cox v. Amick, 195 W.Va. 608, 466 S.E.2d 459 (1995), stated that "because the purpose of a declaratory judgment action is to resolve legal questions, a circuit court's ultimate resolution in a declaratory judgment action is reviewed de novo; however, any determinations of fact made by the circuit court in reaching its ultimate resolution are reviewed pursuant to a clearly erroneous standard." 195 W.Va. at 612, 466 S.E.2d at 463. See also, syl. pt. 1, Randolph County Board of Education v. Adams, 196 W.Va. 9, 467 S.E.2d 150 (1995); Lugar & Silverstein, West Virginia Rules of Civil Procedure, p. 443 (Michie 1960).

This State's statutory scheme with regard to municipal pension and relief funds for police officers and firefighters is found in W.Va.Code, 8-22-16 [1994], through W.Va. Code, 8-22-28 [1981]. Of specific concern herein are the provisions of W.Va.Code, 8-22-23a [1982], which provide for both "total and temporary" and "total and permanent" disability benefits. Under W.Va.Code, 8-22-23a(b) [1982], total and temporary benefits may be obtained where a police officer or firefighter

has become so totally, physically or mentally disabled, from any reason, as to render such member totally, physically or mentally, incapacitated for employment as a police officer or firefighter and ... it has not been determined if such disability is permanent or it has been determined that such disability may be alleviated or eliminated if such member follows a reasonable medical treatment plan or reasonable medical advice.
On the other hand, under W.Va.Code, 8-22-23a(c) [1982], total and permanent disability benefits may be obtained where a police officer or firefighter
has become so totally, physically or mentally, and permanently disabled, as a proximate result of service rendered in the performance of his duties in such department, as to render such member totally, physically or mentally, and permanently incapacitated for employment as a police officer or firefighter or, if such member has been a member of either of such departments for a period of not less than five consecutive years preceding such disability, such member has become so totally, physically or mentally, and permanently disabled, from any reason other than service rendered in the performance of his duties in such department, as to render such member totally, physically or mentally, and permanently incapacitated for employment as a police officer or firefighter.

In Spencer v. Yerace, 155 W.Va. 54, 180 S.E.2d 868 (1971), this Court indicated that statutes creating pension and relief funds for municipal employees should be liberally construed "in favor of those to be benefited." 155 W.Va. at 59, 180 S.E.2d at 871. See also, Cawley v. Board of Trustees, 138 W.Va. 571, 578, 76 S.E.2d 683, 687 (1953)

; 13B M. J., Municipal Corporations, sec. 81 n. 12 (Michie 1988). Thus, we note the language of W.Va.Code, 8-22-17 [1981], which states that, as "fund fiduciaries," boards of trust...

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