Rue v. Board of Trustees of the City of Alexandria Employees Retirement System

484 So. 2d 272, 1986 La. App. LEXIS 6315
CourtLouisiana Court of Appeal
DecidedMarch 5, 1986
DocketNo. 84-1150
StatusPublished
Cited by2 cases

This text of 484 So. 2d 272 (Rue v. Board of Trustees of the City of Alexandria Employees Retirement System) 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
Rue v. Board of Trustees of the City of Alexandria Employees Retirement System, 484 So. 2d 272, 1986 La. App. LEXIS 6315 (La. Ct. App. 1986).

Opinion

FORET, Judge.

Plaintiff, George Rue, brought this action for judicial review of a decision made by defendant, the Board of Trustees of the City of Alexandria Employees Retirement System, denying his application for disability retirement benefits. The trial court rendered judgment in favor of defendant, upholding the Board’s decision denying disability retirement benefits to plaintiff. Plaintiff appealed to this Court and we reversed the judgment of the trial court, finding that the Board had failed to comply with Act 459 of 1948, as amended. We remanded the case to the trial court with instructions that it order the Board to make a determination of plaintiff’s application in compliance with the applicable provisions of the act. See Rue v. Board of Trustees of the City of Alexandria Employees Retirement System, 437 So.2d 1167 (La.App. 3 Cir.1983), writ denied, 442 So.2d 452 (La.1983). In accordance with our opinion and the instructions of the trial court, the Board reconsidered plaintiff’s application for disability benefits. Once again the Board denied plaintiff's application. Plaintiff sought judicial review of the Board’s decision and the trial court again rendered judgment in favor of the Board, upholding its decision to deny disability retirement benefits to plaintiff. Plaintiff now appeals this decision and raises several issues:

(1) Whether plaintiff is entitled to disability retirement benefits and,
[273]*273(2) Whether the disability retirement benefits are subject to an offset representing the amount which plaintiff has received and will receive in worker’s compensation benefits.

FACTS

Plaintiff was employed in various positions for approximately eighteen years by the gas department of the City of Alexandria. In 1979, he was promoted to the position of cathodic protection technician. This position was of a supervisory nature. Plaintiff did, however, occasionally perform some heavy lifting and other strenuous work. As a cathodic protection technician, plaintiff was in charge of a crew of two to five men. This crew was charged with the work of placing anodes on the gas lines in order to prevent corrosion. On occasion, the crew also repaired leaks in the gas lines.

Plaintiff injured his back on May 8, 1981, in a work-related accident. Plaintiff was taken by his foreman to Dr. Francis Brian, who treated him conservatively and eventually referred him to John Patton, a neurosurgeon. Dr. Patton performed a myelo-gram on November 1, 1981, which showed a bulging disc in plaintiff’s back. Dr. Patton recommended surgery but plaintiff refused. Dr. Patton then referred plaintiff back to Dr. Brian.

The Home Indemnity Company had been paying plaintiff worker’s compensation benefits since his accident, but on December 15, 1981, it stopped these payments. Plaintiff filed suit to recover worker’s compensation benefits for total and permanent disability. Subsequently, on May 17, 1982, plaintiff applied for disability retirement benefits with defendant Board. When plaintiff’s application was denied, he brought an action seeking judicial review of the Board’s decision.

The trial court ordered the consolidation of the two actions. On December 3, 1982, the trial court rendered judgment on plaintiff’s claim for worker’s compensation benefits, finding plaintiff to be totally and permanently disabled. No appeal was taken from this judgment. On January 3, 1983, the trial court rendered judgment rejecting plaintiff’s demand with respect to disability retirement benefits. Plaintiff appealed the trial court’s judgment to this Court. We reversed, finding that the Board had failed to comply with the provisions of Act 459 of 1948, as amended, which act had created the Board and the retirement system it managed. We remanded with instructions that the trial court order the Board to again make a determination of plaintiff’s, application for disability retirement benefits but, unlike the first time, in accordance with the applicable provisions of the act. After the rendition of our decision, the Board adopted several rules designed to bring the Board’s procedure in line with the act. One of these rules established a medical board and appointed three doctors to it. The Board referred plaintiff’s application to the medical board. The members of the medical board reviewed the reports of other doctors and examined plaintiff themselves. The medical board concluded that plaintiff was not “permanently or totally disabled,” that he had “made a rational decision to live with his pain,” and could “possibly be employed in some other capacity not requiring heavy lifting or repetitive bending.” Based on this report of the medical board, the defendant Board again rejected plaintiff’s application for disability retirement benefits. The trial court again rendered judgment in favor of defendant, upholding its decision to deny plaintiff’s application. Plaintiff brought this appeal which is now before us.

PLAINTIFF’S ELIGIBILITY FOR DISABILITY RETIREMENT BENEFITS

The Board and the retirement system it manages were created by Act 459 of 1948. Section 6(1) of the act provides:

“SECTION 6. DISABILITY RETIREMENT
(1) Upon the application of a member or his employer, any member who has had at least five years of creditable ser[274]*274vice may be retired by the Board of Trustees not less than thirty and not more than ninety days next following the date of filing such application, on a disability retirement allowance, provided that the medical board, after a medical examination, shall certify that he is mentally or physically incapacitated for the further performance of duty, that such incapacity is likely to be permanent, and that he should be retired." (emphasis ours)

By providing that a member may be retired on a disability retirement, it is clear that the legislature meant for the granting of disability retirement benefits to be discretionary (“... may be retired ..with the retirement system’s board. Nevertheless, the statute limits this discretion by requiring that such a retirement can only be granted if the medical board certifies that the applicant is: incapacitated from further performance of duty, that such incapacity is likely to be permanent, and that the applicant should be retired. In the present case, the medical board declined to make the necessary certification. Since the statute, in effect, prohibits the granting of a disability retirement without such a certification, the threshold question must be whether, under the circumstances, the medical board's refusal to make the necessary certification falls so short of the requisite standard that an intervention by this Court is justified.

The scope of review of an administrative agency in the performance of a discretionary duty is restricted to a determination of whether the agency’s action was unreasonable, arbitrary, or capricious, or whether if was an abuse of power. Delta Bank & Trust Company v. Lassiter, 383 So.2d 330 (La.1980); Henning v. Carrier, 430 So.2d 1310 (La.App. 1 Cir.1983), writ denied, 435 So.2d 429 (La.1983). We find that the medical board’s decision not to certify that plaintiff was entitled to retirement was neither an abuse of power nor unreasonable, arbitrary, or capricious.

Plaintiff’s position as a cathodic protection technician in the gas department of the City of Alexandria was a supervisory one.

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Related

Bowers v. FIREFIGHTERS'RETIREMENT SYSTEM
963 So. 2d 1106 (Louisiana Court of Appeal, 2007)
Rue v. Board of Trustees
488 So. 2d 689 (Supreme Court of Louisiana, 1986)

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Bluebook (online)
484 So. 2d 272, 1986 La. App. LEXIS 6315, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rue-v-board-of-trustees-of-the-city-of-alexandria-employees-retirement-lactapp-1986.