Kinsey v. Board of Trustees

551 N.E.2d 989, 49 Ohio St. 3d 224, 1990 Ohio LEXIS 116
CourtOhio Supreme Court
DecidedMarch 14, 1990
DocketNo. 88-1599
StatusPublished
Cited by55 cases

This text of 551 N.E.2d 989 (Kinsey v. Board of Trustees) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kinsey v. Board of Trustees, 551 N.E.2d 989, 49 Ohio St. 3d 224, 1990 Ohio LEXIS 116 (Ohio 1990).

Opinions

Alice Robie Resnick, J.

At the outset we will address the constitutional issue raised by appellant. It is well-established that where a case can be resolved upon other grounds the constitutional question will not be determined. This case can be resolved on the “some evidence” rule and, therefore, we find it is unnecessary to reach the constitutional issue of whether appellant was denied due process of law by not receiving notice and an opportunity to be heard at the reconsideration determination. State, ex rel. Hofstetter, v. Kronk (1969), 20 Ohio St. 2d 117, 119, 49 O.O. 2d 440, 441, 254 N.E. 2d 15, 17. See, also, Hardy v. VerMeulen (1987), 32 Ohio St. 3d 45, 51, 512 N.E. 2d 626, 632 (Wright, J., dissenting); State v. Weissman (1982), 69 Ohio St. 2d 564, 566, 23 O.O. 3d 477, 479, 433 N.E. 2d 216, 217; Greenhills Home Owners Corp. v. Greenhills (1966), 5 Ohio St. 2d 207, 34 O.O. 2d 420, 215 N.E. 2d 403, paragraph one of the syllabus; Rucker v. State (1928), 119 Ohio St. 189, 162 N.E. 802, paragraph one of the syllabus.

We will now proceed to a consideration of whether mandamus is appropriate. For a court to grant a writ of mandamus, the relator must establish “(1) a clear legal right to the relief prayed for, (2) a clear legal duty upon respondent to perform the act requested, and (3) that relator has no plain and adequate remedy in the ordinary course of the law.” State, ex rel. Consolidated Rail Corp., v. Gorman (1982), 70 Ohio St. 2d 274, 275, 24 O.O. 3d 362, 436 N.E. 2d 1357, 1358. A clear legal right exists where the board abuses its discretion by entering an order which is not supported by “some evidence.” We must, therefore, determine whether there is “some evidence” to support the award of maximum partial disability retirement and denial of permanent and total disability retirement.

The parties agree that Kinsey is permanently disabled as to his former position of fire fighter. The record contains evidence that if appellant returned to work as a fire fighter, there is a significant chance that he would suffer a second heart attack.

The dispute, however, arises as to whether Kinsey is totally disabled. “Total disability” is defined as the “* * * inability to perform the duties of any gainful occupation for which the member of the fund is reasonably fitted by training, experience, and accomplishments; provided, that absolute helplessness is not a prerequisite of total disability.” R.C. 742.01(F). “Partial disability,” although not statutorily defined, is referred to in forms supplied to physicians by the board. These forms ask the physician to designate whether the applicant is “totally” or “partially” disabled. The statement corresponding to “partial disability” reads:

“The applicant is permanently incapacitated for performance of duty as a (fire fighter) * * *. His/her disability is ‘partial’ and performance of any [226]*226other gainful occupation would depend upon the occupation in question.”

The statement for total disability incorporates R.C. 742.01(F), asking the physician to determine that:

“The applicant is permanently incapacitated for performance of duty as a (fire fighter) * * *. His/her disability is ‘total’ meaning an inability to perform the duties of any gainful occupation for which the applicant is reasonably fitted by training, experience, and accomplishments; provided that absolute helplessness is not a prerequisite to total disability.”

Thus, partial disability, as used for purposes of the Fund, implies that a person may be able to perform other gainful employment, notwithstanding an inability to return to a former position as fire fighter.

Accordingly, in determining whether a person is partially or totally disabled, the board must determine whether the person can now be gainfully employed in an occupation for which he or she is reasonably fitted by training, experience, and accomplishments, provided that the person need not be absolutely helpless to qualify for total disability.

Appellee contends that there is “some evidence” to support the board’s determination that Kinsey is not totally disabled. Dr. David K. Scheer, in his September 1985 report, stated that “Mr. Kinsey is permanently incapacitated for performance of duty as a firefighter. His disability is ‘partial’ and performance of any other gainful occupation would depend on the occupation in question.”

Dr. Scheer, on August 9, 1986, agreed with the statement provided in the board’s form that “[t]he applicant is permanently incapacitated for performance of duty as a (fire fighter) * * *. His * * * disability is ‘partial’ and performance of any other gainful occupation would depend upon the occupation in question.”

In August 1986, Dr. Eric Goulder wrote in his report that Kinsey “should be considered permanently incapacitated as a firefighter, I think that on the basis of this examination he would be able to perform other gainful occupation[;] however again this would depend upon the occupation in question, I would think the occupations involving relatively high levels of physical exertion would not be appropriate for this individual and that any future work should be limited to occupations involving mostly sedentary activities.”

Dr. M. J. Tejura, appellant’s attending physician, however, on July 9, 1985, agreed with the statement provided in the form supplied by the board that “[t]he applicant is permanently incapacitated for performance of duty as (fire fighter) * * *. His * * * disability is ‘total’ meaning an inability to perform the duties of any gainful occupation for which the applicant is reasonably fitted by training, experience, and accomplishments; provided that absolute helplessness is not a prerequisite of total disability.” In both his July 12 and November 15,1985 letters, Dr. Tejura stated that Kinsey is “totally disabled” as far as his occupation as a fire fighter is concerned. Dr. Tejura also considered Kinsey “unable to perform any other activity that would be physically or mentally strenuous.”

Dr. William J. Rowe, in a December 1985 report, advised that Kinsey is “permanently * * * unable to return to his previous occupation.”

Where “some evidence” is found to support the board’s decision, the extraordinary writ of mandamus will not be issued to interfere with or control the board’s exercise of discretion. See State, ex rel. Rouch, v. Eagle Tool & Machine Co. (1986), 26 Ohio St. 3d 197, [227]*227200, 26 OBR 289, 292, 498 N.E. 2d 464, 467.

In the case before us, however, we can not say that the record contains “some evidence” to support the board’s determination that Kinsey is not “totally disabled” as defined in R.C. 742.01(F).

R.C. 742.01(F) specifically states that a member need not be absolutely helpless in order to qualify for total disability. It also requires that the gainful occupations available to the claimant are those that are reasonably suitable to the claimant because of his training, experience, and accomplishments. Thus, determining that appellant is qualified to do some kind of work, such as sedentary or nonstressful work, does not necessarily mean that he is not totally disabled for purposes of the Fund. Instead, in order to determine that appellant is not “totally disabled” within the meaning of R.C.

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Cite This Page — Counsel Stack

Bluebook (online)
551 N.E.2d 989, 49 Ohio St. 3d 224, 1990 Ohio LEXIS 116, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kinsey-v-board-of-trustees-ohio-1990.