Teriaca v. MILWAUKEE EMPLOYE'S RETIREMENT SYSTEM

• Decision Date: 10 June 2003
• Docket Number: No. 02-2545, No. 02-2720.
• Citation: Teriaca v. MILWAUKEE EMPLOYE'S RETIREMENT SYSTEM, 265 Wis.2d 829, 2003 WI App 145, 667 N.W.2d 791 (Wis. App. 2003)
• Parties: Cir. Ct. No. 01CV7806 Leane TERIACA, Plaintiff-Appellant, v. MILWAUKEE EMPLOYES' RETIREMENT SYSTEM/ANNUITY AND PENSION BOARD, Defendant-Respondent. Cir. Ct. No. 01CV10007 Richard T. JASSO, Plaintiff-Respondent, v. MILWAUKEE EMPLOYES' RETIREMENT SYSTEM/ANNUITY AND PENSION BOARD, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

265 Wis.2d 829

2003 WI App 145

667 N.W.2d 791

Cir. Ct. No. 01CV7806 Leane TERIACA, Plaintiff-Appellant, v. MILWAUKEE EMPLOYES' RETIREMENT SYSTEM/ANNUITY AND PENSION BOARD, Defendant-Respondent.

Cir. Ct. No. 01CV10007

Richard T. JASSO, Plaintiff-Respondent, v. MILWAUKEE EMPLOYES' RETIREMENT SYSTEM/ANNUITY AND PENSION BOARD, Defendant-Appellant.

Nos. 02-2545, 02-2720.

Court of Appeals of Wisconsin.

Submitted on briefs April 1, 2003.

Decided June 10, 2003.

In case No. 02-2545, on behalf of the plaintiff-appellant Leane Teriaca, the cause was submitted on the briefs of Rebecca D. Boyle and Paul H. Beard of Fuchs, DeStefanis & Boyle, S.C., of Milwaukee.

In case No. 02-2720, on behalf of the defendant-appellant Milwaukee Employes' Retirement System/Annuity and Pension Board, the cause was submitted on the briefs of Grant F. Langley, city attorney, and Maurita Houren, assistant city attorney.

In case No. 02-2545, on behalf of the defendant-respondent Milwaukee Employes' Retirement System/Annuity and Pension Board, the cause was submitted on the brief of Grant F. Langley, city attorney, and Maurita Houren, assistant city attorney.

In case No. 02-2720, on behalf of the plaintiff-respondent Richard T. Jasso, the cause was submitted on the brief of Rebecca D. Boyle and Paul H. Beard of Fuchs, DeStefanis & Boyle, S.C., of Milwaukee.

Before Fine, Schudson and Curley, JJ.

¶ 1. CURLEY, J.

Leane Teriaca appeals from the trial court's order affirming the termination of her duty disability retirement (DDR) allowance by the City of Milwaukee Employes' Retirement System/Annuity and Pension Board (Board).¹ The Board also appeals the reversal of its decision terminating Richard Jasso's DDR allowance. We determine the phrase "fit for service," found in Chapter 36 of the Milwaukee City Charter (MCC), is ambiguous; thus, we must harmonize this phrase with the wording of other ordinances dealing with the City's retirement plans. In doing so, we determine that a recipient found no longer "disabled" as a result of a work-related injury, but not "fit for service" because of other unrelated injuries or conditions, is ineligible for DDR. We also are satisfied that no constitutional, statutory or contractual rights were violated by the Board's decisions, and that sufficient evidence was presented to the Board to support its decisions. Thus, we conclude that the Board properly terminated DDR benefits in both cases. Consequently, we affirm the trial court's order in Teriaca's case, and reverse the trial court's order in Jasso's case.

I. BACKGROUND.

¶ 2. Teriaca and Jasso are both City of Milwaukee police officers who were injured while on duty and who were found eligible for DDR allowances pursuant to MCC § 36-05-3-a. A DDR is one of several types of benefit packages offered by the City of Milwaukee Employes' Retirement System (MERS). See MCC § 36-05-3. The plan also authorizes an ordinary disability retirement allowance, see MCC § 36-05-2-b, and a service retirement allowance, see MCC § 36-05-1.

Leane Teriaca

¶ 3. Teriaca began working for the Milwaukee Police Department in October of 1975. In 1981, Teriaca was injured when she slipped and fell from a police car. In 1983, she was injured again when she was kicked by a prisoner. Teriaca also strained her back during an off-duty arrest in 1984. As a result, she claimed work injuries consisting of neck, low back and upper extremities pain. She was placed on modified duty from 1983 until 1988. She first applied for DDR in 1986. Because MCC § 36-05-3-c-1-a dictates that applicants for DDR must submit to a medical panel examination, three medical doctors examined Teriaca, but they could not agree on whether she was disabled as a result of a work-related injury. Ultimately, the medical panel certified to the Board that Teriaca was not eligible for DDR and her request was denied by the Board. Unaccepting of this decision, Teriaca sought both a review and, later, an appeal. The independent examiner disagreed with the earlier decision, principally because one of the doctors changed his opinion, and the Board eventually granted Teriaca's request for DDR on August 1, 1988, with an effective date in January 1988.

¶ 4. After being granted DDR, recipients under MCC § 36-05-3-c-1-a are required to have an annual physical examination. As a result, Teriaca was examined periodically after being granted DDR. However, while her DDR was continued, the doctors involved in these medical reviews were not always unanimous in finding Teriaca disabled as a result of work-related injuries. Over the years, several of the doctors suggested that her complaints were possibly the result of psychiatric problems. In 1989, the Board suspended Teriaca's benefits and ordered her to return to work on limited duty. Her benefits, however, were subsequently restored. She continued to be eligible for DDR benefits until 2000, when the Board accepted the recommendation of the majority of the medical panel that she was no longer suffering from her work-related injuries. She was not able to return to work full-time, however, because of other non-work-related medical conditions.

¶ 5. After the Board determined that Teriaca was no longer eligible for DDR benefits, Teriaca availed herself of the procedure set forth in WIS. STAT. § 68.09 (1999-2000),² and demanded an independent review of her case. The independent reviewer affirmed the findings of the Board, determining that her complaints were "subjective in nature." Teriaca then appealed that decision, and the Board's decision was ultimately affirmed by an independent hearing examiner. The Board adopted the hearing examiner's recommendation and Teriaca's application for the continuation of her DDR benefits was denied. Teriaca then sought certiorari review. The trial court affirmed the Board's decision.

Richard Jasso

¶ 6. Jasso became a City of Milwaukee police officer in 1980. He injured his knee in late 1980 while he was pursuing a suspect. In 1983, he also injured his left elbow during combat training. Approximately one year later, he applied for DDR benefits. His application was granted in May 1985. He continued on DDR until 1989, when he was removed from DDR status. Like Teriaca, Jasso was reinstated by court order after several other DDR recipients challenged the Board's decision to require them to return to the workforce on limited duty. Between 1990 and 2000, Jasso was reexamined to determine if he still suffered from a work-related injury. As a result of these physical exams, he continued to receive DDR benefits. In 2000, a medical reexamination was requested of Jasso. After his examinations, a majority of the medical panel certified him as ineligible for DDR. The Board accepted the recommendation of the medical panel and terminated Jasso's DDR benefits. Jasso then filed for review and an independent reviewer affirmed the Board's termination. Jasso appealed the Board's decision to a hearing examiner, who also affirmed the Board's decision. Afterwards, Jasso sought certiorari review. The trial court reversed the Board's decision, ruling that the Board proceeded on an improper legal standard.

II. ANALYSIS.

[1,2]

¶ 7. On appeal from a decision on a writ of certiorari, this court reviews the record and findings of the administrative board, not the judgment and findings of the trial court. See State ex rel. Harris v. Annuity & Pension Bd., 87 Wis. 2d 646, 651, 275 N.W.2d 668 (1979). When we review a decision of the Board, the scope of our review is limited to the four issues presented on a common law writ of certiorari: "(1) [w]hether the Board kept within its jurisdiction; (2) whether it acted according to law; (3) whether its action was arbitrary, oppressive or unreasonable and represented its will and not its judgment; and (4) whether the evidence was such that it might reasonably make the order or determination in question." State ex rel. Ruthenberg v. Annuity & Pension Bd., 89 Wis. 2d 463, 472, 278 N.W.2d 835 (1979) (footnote omitted). Thus, we decide the merits here independent of either of the trial court decisions.

¶ 8. Members in active service "who shall become permanently and totally incapacitated for duty as the natural and proximate result of an injury occurring at some definite time and place while in the actual performance of duty" are eligible for DDR. MCC § 36-05-3. This particular DDR plan pays to the recipient 75% of the current annual salary and all salary adjustments authorized for the position, as well as health insurance coverage. See MCC § 36-05-3-c-1-c.

¶ 9. Officers Teriaca and Jasso contend that their DDR benefits should be reinstated because the Board's stance, that a police officer remains eligible for DDR only if the disability is caused by a work-related injury, was incorrect. Both claimants first seek to overturn the Board's decision on the grounds of issue preclusion. Alternatively, Teriaca and Jasso claim that the wording of MCC § 36-05-3-c, establishing the circumstances in which a DDR recipient can be restored to active duty, supports their position that a disability from a non-work-related injury is sufficient to continue DDR. Further, Teriaca and Jasso contend their terminations from DDR deny them a contractual, statutory and constitutionally-vested right. Finally, they argue that insufficient evidence was presented to support the Board's decisions.

¶ 10. We determine that the application of the issue preclusion doctrine to these types of proceedings is inappropriate. Thus, we look to the language of the retirement act. We conclude the phrase "fit for service" is ambiguous. In harmonizing the phrase with other ordinances touching on the City's retirement plans, we determine that the intent of DDR is to allow only those with a work-related disability to remain on duty disability retirement. Further, no contractual, statutory or constitutional right has been violated, and sufficient evidence exists to support the Board's...