Jason A. Fishburn v. Indiana Public Retirment System

2 N.E.3d 814, 2014 WL 421329, 2014 Ind. App. LEXIS 42
CourtIndiana Court of Appeals
DecidedFebruary 4, 2014
Docket49A02-1305-MI-391
StatusPublished
Cited by6 cases

This text of 2 N.E.3d 814 (Jason A. Fishburn v. Indiana Public Retirment System) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jason A. Fishburn v. Indiana Public Retirment System, 2 N.E.3d 814, 2014 WL 421329, 2014 Ind. App. LEXIS 42 (Ind. Ct. App. 2014).

Opinions

OPINION

BROWN, Judge.

Jason A. Fishburn appeals from the trial court's ruling affirming the determination of the Indiana Public Retirement System ("INPRS") of his disability benefit as a member of the 1977 Police Officers and Firefighters' Pension and Disability Fund (the "1977 Fund")1 Fishburn raises two issues which we consolidate and restate as whether the ruling of the trial court is erroneous. We affirm the ruling of the trial court and the agency determination.

[817]*817FACTS AND PROCEDURAL HISTORY

Fishburn, who was a police officer with the Indianapolis Metropolitan Police Department ("IMPD"), was shot in the head in the line of duty in July of 2008. He underwent numerous surgeries and months of therapy and is unable to return to work as a police officer. On April 7, 2011, he filed an application for disability benefits under the 1977 Fund.2 The IMPD Pension Board issued an initial determination that Fishburn's impairment was a Class 1 impairment under Ind.Code § 36-8-8-12.5. Dr. Omkar Markland, the medical authority for the 1977 Fund, agreed that his impairment was a Class 1 impairment and also determined that the degree of impairment was 42% of the whole person. On April 26, 2011, INPRS issued an initial determination that Fishburn was eligible for disability benefits, there was no suitable and available work within IMPD, the degree of impairment was 42%, and the class of impairment was Class 1. The initial determination provided that his monthly disability benefit would be 69.7% of the monthly salary of a first class patrol officer. Fishburn requested review of the initial determination, and in August 2011 Dr. Markland revised his determination of Fishburn's degree of impairment to 71% of the whole person.

On August 24, 2011, INPRS issued a revised determination (the "Revised Determination") reflecting Dr. Markland's revised impairment finding and stating that Fishburn's monthly disability benefit would be 79.85% of the monthly salary of a first class patrol officer. The total benefit amount was calculated using a formula which added a base monthly benefit determined by class of impairment and an additional monthly benefit determined by degree of impairment. The base monthly benefit for a Class 1 impairment was equal to 45% of the monthly salary of a first class patrol officer.3

The additional monthly benefit, which is the amount at issue in this appeal, was determined to be 34.85% of the monthly salary of a first class patrol officer. This determination was made pursuant to a formula established by PERF (now INPRS) in 1989. The formula provided: "Additional benefit percentage = (degree of impairment x .35) plus (10%)." Appellant's Appendix at 49. Specifically, the additional monthly benefit, expressed as a percentage of the monthly salary of a first class patrol officer, was determined by calculating the sum of the following two amounts: (i) the product of Fishburn's degree of impairment of 71% of the whole person and 0.35, which product equaled 24.85%, and (ii) an additional minimum monthly benefit of ten percent. Using this formula, Fishburn's additional monthly benefit was calculated to be 34.85% (24.85% under (1) above plus 10% under (ii)) of the monthly salary of a first class patrol officer, and his total monthly disability benefit was caleu-lated to be 79.85% (45% base benefit plus 34.85% additional benefit) of the monthly salary of a first class patrol officer.

Fishburn appealed the Revised Determination. Both parties filed summary judgment motions together with supporting briefs. On January 17, 2012, a hearing was held before an Administrative Law Judge (the "ALJ") at which the parties disputed how the "additional monthly [818]*818amount" under Ind.Code § 36-8-8-13.5(f) should be calculated.4 Fishburn argued that the statute should be interpreted to mean that a member's additional benefit (as a percentage of a first class patrol officer's salary) is equal to the member's degree of impairment (as a percentage) and that the formula used by INPRS is erroneous. Specifically, Fishburn argued that a member of the 1977 Fund with a degree of impairment of 45% or higher should receive the maximum 45% of the salary of a first class patrol officer as additional benefit, that a member with a degree of impairment between 10% and 45% should receive that percentage as an additional benefit, and that a member with a degree of impairment less than 10% should receive the minimum 10% as an additional benefit. He contended that, as a result, he was entitled to a base monthly benefit of 45% of the salary of a first class patrol officer and an additional benefit of 45% of the salary of a first class patrol officer, for a total monthly disability benefit of 90% of the monthly salary of a first class patrol officer. INPRS argued that the formula established in 1989 is in accordance with Ind.Code § 36-8-8-13.5(F), that under the formula a member's additional monthly benefit is based on the member's degree of impairment through the application of linear interpolation which seales the member's degree of impairment to the range of minimum and maximum benefits allowable by statute (10% and 45%, respectively), that "[the linear interpolation method creates a direct relationship, expressed by a ratio of thirty-five one-hundredths (0.85) to one (1), between a particular degree of impairment (ranging from 0% to 100%) and the additional monthly benefit amount to which the member is entitled (ranging from 10% to 45%)," and that this interpretation has been applied uniformly to the disability benefits of 1977 Fund members including Fishburn. Id. at 31-32.

On January 23, 2012, the ALJ issued its Decision and Recommended Order on Cross-Motions for Summary Judgment which affirmed the Revised Determination. After discussing the facts, the relevant statutory provisions, prior cases involving statutory interpretation, legislative intent, and the doctrine of legislative acquiescence, the ALJ's recommended order states in part:

These principles compel the conclusion that the interpretation INPRS gave to 1.C. § 36-8-8-13.5(f) in 1989, and has consistently applied since, is correct.
Section 36-8-8-18.5(f) is ambiguous. Every disabled member is entitled to a base benefit of up to 45% of the annual salary of a first class patrol officer based [on] the class of impairment. The medical authority then determines the degree of impairment under I.C. § 36-8-8-13.l(c). Each member is then entitled to an "additional" benefit of between 10% and 45% of salary, to be "determined by the PERF medical authority based on the degree of impairment." 1.C. § 86-8-8-13.5(f).
This last phrase is susceptible to differing interpretations, as demonstrated by the excellent briefs filed by the parties. Petitioner's interpretation is that the additional benefit would be equal to the degree of impairment. This is not unreasonable, but it is not clearly dictated by the words of the statute. If petitioner is correct, one wonders why the medical authority must make any separate determination at all, and why the statute says the benefit is "based on" rather than "equal to" the degree of impairment.

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2 N.E.3d 814, 2014 WL 421329, 2014 Ind. App. LEXIS 42, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jason-a-fishburn-v-indiana-public-retirment-system-indctapp-2014.