O'Connor v. Board of Trustees

429 So. 2d 450, 1983 La. App. LEXIS 7880
CourtLouisiana Court of Appeal
DecidedFebruary 22, 1983
DocketNo. 82 CA 0583
StatusPublished

This text of 429 So. 2d 450 (O'Connor v. Board of Trustees) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
O'Connor v. Board of Trustees, 429 So. 2d 450, 1983 La. App. LEXIS 7880 (La. Ct. App. 1983).

Opinion

ALFORD, Judge.

This is an appeal by the plaintiff, Barry A. O’Connor, from a judgment of the district court denying his petition for judicial review of a decision of the Board of Trustees of the Louisiana State Police Retirement System concluding that Sgt. O’Con-nor’s disability was due to a “continued illness”, entitling him to disability retirement benefits of 40 percent, rather than due to an injury in the line of police work, which would entitle him to disability retirement benefits of 75 percent of his average monthly salary.

The lower court held that the suit was not properly before it for judicial review under the provisions of the Administrative Procedure Act, LSA-R.S. 49:951 et seq., and did not consider the merits of Mr. O’Connor’s claim.

We believe that the court below was clearly in error in its conclusion that the appellant could not apply for judicial review of the Board’s decision under the provisions of the Administrative Procedure Act. See Leger v. State Police Retirement Board, 396 So.3d 965 (La.App. 1st Cir.1981), writ denied 399 So.2d 610 (La.1981). Since the record before us is complete, it will be unnecessary for us to remand to the district court for its consideration of the merits of the case.

The question presented is whether the total disability of Barry A. O’Connor, a state police officer is the result of an “injury received in line of duty” pursuant to LSA-R.S. 40:1428B(2) or of a “continued illness” under Subsection 1428B(3). Application of 1428B(2) provides benefits of 75% of his average monthly salary whereas under 1428B(3), his retirement benefits are fixed at 40% of his average monthly salary for a retiree with the credited service of O’Connor. The State Police Retirement Board concluded that the retired officer’s disability was covered by the provisions of LSA-R.S. 40:1428B(3). We agree and affirm the Board’s decision. We also affirm the judgment of the district court, which has the effect of denying the plaintiff’s appeal, but on a different ground. We hold, on the merits, that O’Connor’s disability is not covered by 1428B(2); his disability, we find, is because of “continued illness.”

O’Connor was employed as a state trooper for the Louisiana State Police from June 1, 1971 to April 23, 1981, when he retired. This active employment service credit of nine years, ten months, and twenty-three days, plus three years creditable military service1, gave O’Connor total credited service in the retirement system of twelve years, ten months, and twenty-three days. Thus, O’Connor retired from his job as a Louisiana State Trooper with over 12 years of service credit. He is about 33 years old, and suffers from intermittent severe hypertensive reactions related to emotional and mental stress of his occupation. His medical history is uneventful, except for gunshot wounds to his legs and a right eye laceration from a gunshot.

By letter dated February 26, 1981, from his counsel, O’Connor applied to the Board for disability retirement benefits on the basis of LSA-R.S. 40:1428 et seq. He was examined by Dr. T.R. Kilpatrick of the State Medical Disability Board, Dr. Richard P. Strobach, and Dr. W. Curtis Wilcox. Letters and other memoranda from each of these physicians, along with other written data are contained in O’Connor’s file and made a part of the record, in particular Dr. Kilpatrick’s letter dated March 23,1981, Dr. Strobach’s letter dated February 9, 1981, Dr. Wilcox’s letters dated January 27, 1981 and April 22, 1981 and the Discharge Summary from the Seventh Ward General Hospital, Hammond, Louisiana, Dr. W.C. Wilcox. Each of the above mentioned physicians concluded that O’Connor should be considered totally and permanently medically disabled from further state police work because of his severe hypertension.

[452]*452Plaintiff and his counsel appeared before the Board at the meeting of April 23,1981. At that time a brief in support of O’Con-nor’s application for disability retirement was submitted.

Upon considering plaintiff’s application for disability retirement benefits, the data in his file with the retirement system, and plaintiff’s counsel’s brief and oral argument, the Board, made findings of fact and reached conclusions of law, as follows:

1. Mr. O’Connor has twelve years, ten months, and twenty-three days of creditable service, with the System.
2. Mr. O’Connor suffers from intermittent reactive severe hypertension.
3. Mr. O’Connor is totally disabled and/or incapacitated from further state police work because of continued illness, i.e. intermittent reactive severe hypertension.
4. Mr. O’Connor’s disability and/or incapacity is not caused by any injury at all, much less an injury the nature of which causes state police work to be extra-hazardous.
5. Mr. O’Connor’s average monthly salary as of April 23, 1981, is $1,907.17.
The Board of Trustees of the System concludes, as a matter of law, that Mr. O’Connor’s total disability and/or incapacity to perform further state police work is due to and caused by his continued illness, i.e. intermittent reactive severe hypertension. The Board therefore concludes that Mr. O’Connor is entitled to disability retirement benefits of forty percent of his average salary pursuant to La.R.S. 40:1428(B)(3) for a monthly benefit of $762.87. The Board specifically concludes that Mr. O’Connor’s disability is not caused by any injury as the term ‘injury’ is used in La.R.S. 40:1428.

Dr. W. Curtis Wilcox, in his letter of January 27, 1981, stated that when he examined the patient on December 19, 1980, he found O’Connor “in another hypertensive crisis.” He recommended that the police officer terminate his relationship with the State Police. In his Discharge Summary, June of 1980, Dr. Wilcox diagnosed the condition as “Reactive liable systematic hypertension,” accompanied by related conditions stemming from chronic anxiety. In his letter of April 22, 1981, Dr. Wilcox expressed the opinion that Mr. O’Connor’s “recurrent crises of life threatening reactive hypertension and incapacitating hypertensive encephalopathy are directly related to certain of his responsibilities as a peace officer for the Louisiana State Police.”

On March 18, 1981, O’Connor was examined by the Board’s physician Dr. T.R. Kil-patrick, for a disability evaluation. In his report of March 23, 1981, Dr. Kilpatrick concluded that the patient was totally and permanently medically disabled. He was of the opinion that O’Connor “is disabled for his present occupation as a state trooper because of reactive hypertension, probably on emotional basis.”

The plaintiff was examined by Dr. Richard P. Strobaeh on June 27, 1980, following a request by Dr. Curtis Wilcox. He was examined again on February 9, 1981 by Dr. Strobaeh, who recommended that because of his hypertensive episodes Mr. O’Connor should retire from the state police “for medical reasons.”

Appellant’s disability is not at issue. The Board concedes that Mr. O’Connor is totally disabled for purposes of LSA-R.S. 40:1428. What is at issue is whether appellant’s total disability is the result of an “injury received in line of duty”, or a “continued illness” as those terms are used in LSA-R.S. 40:1428.

This statute provides as follows:

A.

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Related

Guillory v. State Police Retirement Board
402 So. 2d 161 (Louisiana Court of Appeal, 1981)
Darbonne v. Louisiana State Police Retirement Board
408 So. 2d 452 (Louisiana Court of Appeal, 1981)

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429 So. 2d 450, 1983 La. App. LEXIS 7880, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oconnor-v-board-of-trustees-lactapp-1983.