You can
search the entire site.
or go to the recent opinions, or the chronological or subject indices.
Lucas v. Anchorage Police & Fire Retirement Board (7/10/98), 960 P 2d 1151
<![CDATA[
Notice: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers are requested
to bring errors to the attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska 99501, telephone (907) 264-
0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
DAVID L. LUCAS, )
) Supreme Court No. S-6731
Appellant, )
) Superior Court No.
) 3AN-93-5383 Civil
v. )
) O P I N I O N
ANCHORAGE POLICE & FIRE )
RETIREMENT BOARD, ) [No. 5009 - July 10, 1998]
)
Appellee. )
______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Glen Anderson, Judge.
Appearances: James A. Gasper, Jermain,
Dunnagan & Owens, P.C., Anchorage, for Appellant. Frank S. Koziol,
Law Office of Frank S. Koziol, Anchorage, for Appellee.
Before: Rabinowitz, Matthews, Compton,
Eastaugh, and Bryner, Justices. [Moore, Chief Justice, not
participating.*]
RABINOWITZ, Justice.
MATTHEWS, Justice, with whom COMPTON, Justice,
joins, dissenting.
I. INTRODUCTION
In 1988 David Lucas, a former Anchorage policeman, was
awarded non-occupational disability benefits from the time of his
discharge in 1982. In 1993 the Police & Fire Retirement Board
terminated Lucas's benefits on the ground that he was no longer
disabled. Lucas appeals from the Board's termination of benefits
decision.
II. FACTS AND PROCEEDINGS
David Lucas was hired by the Anchorage Police Department
(APD) in April 1977. He was discharged for misconduct in December
1982. The discharge was prompted by an incident in which he beat
a handcuffed prisoner and later falsified a police report which
caused unwarranted charges to be filed against the victim of the
beating.
On the day he was discharged, Lucas filed a claim for
permanent occupational disability benefits. The Anchorage Police
& Fire Retirement Board denied this claim. Before a formal hearing
on this claim, Lucas also filed a non-occupational disability
claim.
In his non-occupational disability claim, Lucas asserted
that he was psychologically unable to control outbursts of anger,
and was therefore disabled from performing the duties of a police
officer. The experts who examined Lucas concluded that even prior
to his hiring by APD, he possessed psychological problems that made
him unsuitable for police work. This posed a problem for Lucas,
because an employee is only eligible for benefits if he or she was
employed for at least "five years . . . prior to the date of
disability." AMC 3.85.130C. The Board's staff (Staff) opposed
Lucas's claim by arguing that he was disabled when he came to work
for APD, and thus had not served the required five-year pre-
disability term. Lucas argued that he had completed five years of
pre-disability service, and did not become incapable of performing
his duties until December 1, 1982, when the incidents leading to
his termination took place.
In January 1988 the Board (Board I) [Fn. 1] issued
findings of fact and conclusions of law. Board I concluded that
Lucas was unsuitable for police work at the time of his hiring, but
that he had not become disabled from work until December 1982.
Board I found that non-occupational stressors, [Fn. 2] in
combination with the mental condition that predated Lucas's APD
employment, made him subject to "sudden, uncontrollable temper
outburst[s] wherein Mr. Lucas lost control of his actions and was
unaware of what he was doing." More particularly, Board I wrote:
The Board finds that the date of Mr. Lucas'
disability was December 1, 1982. While Mr. Lucas did suffer from
a mental condition [i.e., the personality disorder] which predated
his employment with the Anchorage Police Department, and rendered
him unsuitable for police work, that pre-existing mental condition
did not render him "unable to perform his assigned duties"[i.e.,
disabled] pursuant to Anchorage Municipal Code 3.85.130 A., until
December 1, 1982, when his conduct precipitated his termination.
The violent aspect of that conduct was the result of a sudden,
uncontrollable temper outburst wherein Mr. Lucas lost control of
his actions and was unaware of what he was doing.
Board I granted Lucas non-occupational disability benefits
retroactive to the time of his discharge in 1982.
The Anchorage Municipal Code formerly provided that non-
occupational disability "shall continue for life or until the
member is capable of resuming duties with any police or fire
department."[Fn. 3] Former AMC 3.85.130A (1993). The code also
provides that:
The retirement noard shall review the status
of the physical and mental condition of all persons receiving
disability benefits on an annual basis or at more frequent
intervals if determined necessary by the board. If the board
determines that a physical or mental condition is the type of
condition which could improve, the board may require the member to
submit to additional physical or mental examinations at the expense
of the system.
AMC 3.85.045.
In 1989 Lucas was examined by Dr. Blum, a psychologist.
Dr. Blum concluded that Lucas was not currently disabled, and noted
his disagreement with Board I's determination that Lucas had been
disabled at the time of the incident which precipitated his
discharge. A subcommittee of the Board, however, recommended that
Lucas continue on disability benefits, since Dr. Blum's
recommendations were similar to those presented to and rejected by
Board I during the previous year's hearing.
In 1991 the Board sent Lucas a questionnaire explaining
that it needed information in order to carry out its
"responsib[ility] for annually reviewing the status of members
receiving disability benefits to determine their continued
eligibility for those benefits." In response to a query as to his
"current condition,"Lucas responded "EXCELLENT." Lucas further
responded negatively to a query as to whether he was "under a
physician's care for treatment of [his] stress problem."
When the Board staff received the completed
questionnaire, it recommended that "as Mr. Lucas states his current
condition is excellent,"the Board should have Lucas undergo
testing to "evaluate his current psychological condition." In
February 1992 the Board ordered an examination by Dr. Raffle, a
psychiatrist.
Dr. Raffle concluded that although Lucas possessed a
personality disorder that made him unsuitable for police work, he
was not disabled. [Fn. 4] Dr. Raffle also disagreed with Board
I's earlier findings regarding Lucas's psychological condition:
while he allowed that "a temporary aggravation of [Lucas's]
personality disorder occurred during his employment due to non-
employment stressors,"he did not agree that Lucas's condition had
ever been so severe as to amount to a disability.
Based on the medical reports, the Board Staff concluded
that Lucas was no longer disabled. A hearing was convened before
Board II in April 1993.
Drs. Raffle and Blum testified, each concluding that
Lucas was not currently disabled. Both doctors also concluded,
contrary to Board I's findings, that Lucas had never been disabled.
Although Lucas's attorney cross-examined both doctors at the Board
II hearing, Lucas did not attend the hearing and called no
witnesses. His counsel argued that the mental condition that Board
I deemed to be the cause of disability was a chronic personality
disorder which predated his employment, that he retained this
disorder, and that consequently, Board II could not find that he
was no longer disabled. Lucas's attorney also argued that although
his mental condition had improved, if he returned to police work he
would again experience uncontrollable anger that would render him
incapable of performing his duties.
In May 1993 Board II decided that Lucas was capable of
performing the usual duties of a police officer and was therefore
no longer disabled. In its decision Board II stated:
8. The Board finds that in and around
December of 1982 Mr. Lucas suffered from non-occupational stressors
which either aggravated his chronic personality disorder rendering
him unable to perform [his] duties . . . or caused an acute
disorder rendering him unable to perform [his] duties. . . .
. . . .
10. The Board finds that Mr. Lucas' acute
disorder or the aggravation of his chronic personality disorder
which rendered him disabled in 1982 has improved or resolved. The
Board relies upon Dr. Raffle's testimony and evidence of Mr. Lucas'
current ability to control his behavior.
11. The Board finds that Mr. Lucas's current
mental condition is, more likely than not, improved over what it
was during his first five years of employment with the police
department. . . .
12. The Board finds and concludes that Mr.
Lucas is currently able to perform the assigned or normal duties of
a police officer.
13. The Board finds and concludes that Mr.
Lucas is no longer disabled.
14. The Board finds and concludes that Mr.
Lucas is no longer entitled to receive permanent non-occupational
disability benefits.
Lucas appealed to the superior court which affirmed the decision
entered by Board II. Lucas now appeals to this court.
III. DISCUSSION
A. The Board May Periodically Examine Benefit Recipients to
Ensure That Their Disability Continues.
Lucas argues that the Anchorage Municipal Code "does not
permit the Board to conduct a new inquiry through periodic
examinations of a benefit recipient to determine if the original
finding of disability has disappeared over time." From this
premise, Lucas argues that the examinations undertaken by Drs. Blum
and Raffle, as well as the Board II proceeding, were an
illegitimate exercise of administrative power, and that his
benefits must therefore be reinstated. [Fn. 5]
Lucas bases his argument on a reading of AMC 3.85.045,
which, as noted above, provides:
The retirement board shall review the status
of the physical and mental condition of all persons receiving
disability benefits on an annual basis or at more frequent
intervals if determined necessary by the board. If the board
determines that a physical or mental condition is the type of
condition which could improve, the board may require the member to
submit to additional physical or mental examinations at the expense
of the system.
AMC 3.85.045. Lucas interprets this ordinance as follows:
it is presumed under the ordinance that [a
permanent disability] can only be cured through Board-ordered
therapy, and after a finding that such therapy would improve the
condition. AMC 3.85.045 limits the Board to determining through
medical examination if the benefit recipient has a condition which
could improve. The clear implication is that the Board may only
order remedial therapy to assist in rehabilitation of the
disability benefit recipient, [and] therefore its inquiry must
focus upon whether the benefit recipient has a condition which
could be remediated by therapeutical treatment. [The ordinance]
does not empower the Board to revisit original findings of
permanent disability.
We view the Board's interpretation of AMC 3.85.045 as
more plausible. The first step in the Board's interpretation is
recognizing that although Board I found Lucas's disability to be
"permanent,"this did not amount to a finding that Lucas would
literally be disabled forever. Both litigants agree that
"permanent"is a term of art, and under the municipal code a
"permanent non-occupational disability"is one which "continue[s]
for life or until the member is capable of resuming duties with any
police or fire department." Former AMC 3.85.130A (1993) (emphasis
added). The Board interprets AMC 3.85.045 as an instruction that
it should ensure that those persons receiving disability benefits
continue to meet the definition of disabled found in AMC 3.85.130A.
In the Board's view, the two provisions are read in conjunction as
follows: under AMC 3.85.045, it reviews the condition of benefit
recipients, and directs recipients to undergo examinations if their
condition is "the type . . . which could improve"; if a recipient's
condition improves to the point that s/he is "capable of resuming
[his or her] duties,"then under AMC 3.85.130A that person is no
longer disabled, and the Board will terminate benefits.
We believe that the Board's interpretation of these code
provisions is correct, and reject Lucas's reading of the ordinance.
Lucas offers no legal support, and we see no logical support, for
his claim that a presumption exists under AMC 3.85.045 that
permanent disabilities can only be cured through Board-ordered
therapy, and that the Board cannot revisit findings of disability
based on changed circumstances.
Municipal Code 3.85.045 does not provide that the Board
can only require an examination if a beneficiary's condition is
"curable,"or "amenable to treatment." Rather, it states that the
Board may order an examination if it determines that a
beneficiary's condition "could improve." AMC 3.85.045. Having
determined through Lucas's response to the questionnaire that
Lucas's condition was apparently "excellent,"the Board ordered him
to submit to an examination. This administrative action comports
with the plain language of the ordinance. After the examination
indicated that Lucas no longer met the definition of disabled,
Board II held a hearing on the matter and terminated Lucas's
benefits. This action comports with the directive in AMC 3.85.130A
regarding which former employees may lawfully receive disability
benefits. In sum, Board II's actions were consistent with, and
indeed required by, the municipal code.
Another indication of the weakness of Lucas's argument is
that his interpretation of the code would lead to absurd results:
a recipient's condition might completely improve, [Fn. 6] but AMC
3.85.045 would require disability benefits to continue until (1)
the Board found that the (now non-existent) condition "could
improve"; and (2) the Board ordered a course of therapy for the
(non-existent) condition, until some point at which Lucas's
"presumption"was satisfied.
B. Board II's Decision Did Not Violate Principles of
Collateral Estoppel.
Lucas argues that Board II's termination of his benefits
violated the doctrine of collateral estoppel. [Fn. 7] This
doctrine, which applies to administrative agencies, see Holmberg v.
State, 796 P.2d 823, 827 (Alaska 1990), prohibits the relitigation
of issues which have already been decided by a final judgment.
See Rapoport v. Tesoro Alaska Petroleum Co., 794 P.2d 949, 952
(Alaska 1990). Lucas cites a Washington case holding that under
the doctrine of collateral estoppel, a final award of disability
benefits cannot be canceled simply as a result of an administrative
change of heart; only if there has been a "change in circumstances"
can benefits be discontinued. See Malland v. State, Dep't of
Retirement Sys., 694 P.2d 16 (Wash. 1985). Having laid this legal
foundation, Lucas contends that Board II's decision amounts to an
impermissible rejection of Board I's determination that he was non-
occupationally disabled.
The Board agrees that the doctrine of collateral estoppel
requires that a change in circumstance must be shown if disability
benefits are to be terminated. It takes issue, however, with
Lucas's claim that Board II improperly reversed the findings of
Board I. The Board contends that Board II in no way disagreed with
or altered Board I's conclusions; it notes that, in fact, Board II
explicitly affirmed Board I's decision. The Board further observes
that, rather than contradicting Board I's findings concerning the
state of Lucas's mental health from 1982 to 1988, Board II simply
found that Lucas was no longer disabled as of April 1993, and
therefore terminated Lucas's benefits.
In arguing that Board II allowed an impermissible
relitigation of the issues already decided by Board I, Lucas
primarily relies on the fact that Drs. Raffle and Blum told Board
II that they disagreed with Board I's finding that Lucas was
disabled as of December 1982. It is true that these expert
witnesses criticized Board I's decision. But as the Board notes,
while this testimony might have been cause for evidentiary
objection at the hearing, it does not give rise to a collateral
estoppel problem.
Board II was convened to determine whether Lucas remained
disabled. The fact that Drs. Raffle and Blum gave testimony
regarding a non-issue (whether Lucas had really been disabled in
1982) would have been ground for a relevancy objection, but Lucas
voiced no such objection. Moreover, Lucas might have argued that
since Drs. Raffle and Blum disagreed with Board I's conclusions
regarding Lucas's mental health from 1982 to 1988, their opinions
regarding his mental health in 1992 deserved little weight. But it
was ultimately up to the Board, as fact finder, to make decisions
concerning the weight of the evidence.
Contrary to Lucas's focus on a portion of the testimony
of Drs. Raffle and Blum, we must examine what Board II actually
decided to determine whether Board II violated principles of
collateral estoppel. Board II's findings indicate that it rejected
the doctors' criticism of Board I's conclusion, but accepted their
conclusions regarding Lucas's current condition. This evidences no
violation of collateral estoppel, and we therefore reject Lucas's
argument.
C. Board II's Decision to Terminate Lucas's Benefits Was
Supported by Substantial Evidence.
Lucas argues that once an administrative board has
determined that an individual is disabled, there should be a
presumption "of a continuing disability in the face of strong
evidence to the contrary." He argues that Board II ignored such a
presumption, and that its decision was not supported by substantial
evidence. [Fn. 8] We find his argument unpersuasive. [Fn. 9]
The section of Lucas's brief concerning the adequacy of
the evidence consists mainly of a recapitulation of his arguments
concerning the meaning of AMC 3.85.045 and the alleged violation of
the collateral estoppel doctrine. His only real argument regarding
the sufficiency of the evidence is a claim that Drs. Raffle and
Blum engaged in "semantical sophistry"when they claimed that Lucas
was "unsuitable"for police work yet "capable,"of it. Lucas
argues that this is "disingenuous, and devoid of common sense." In
his view, since Drs. Raffle and Blum agree with the experts who
testified before Board I that Lucas is unsuited for police work, it
must logically follow that he remains incapable of performing it,
and thus disabled. Thus, he considers Board II's decision
unsupported by substantial evidence.
Contrary to Lucas's argument, Board I accepted the
proposition that Lucas could be "unsuitable"for police work, yet
capable of performing the duties of an officer. In fact, despite
general agreement of the expert witnesses before Board I that Lucas
was unsuitable for police work from the date of his hiring, Lucas
urged that Board to find that he put in five years of capable
service before his disability struck and he became unable to
perform such work. [Fn. 10]
In sum, both the "law of the case"as established by
Board I and Lucas's own arguments before that Board indicate that
it is neither "disingenuous"nor "devoid of common sense"to
conclude that although someone with a chronic personality disorder
is not well suited for work as a policeman, he is nevertheless
capable of performing the job. Lucas's only argument regarding the
sufficiency of the evidence is therefore meritless.
As described above, Board II's conclusion that Lucas was
no longer disabled was based on the uncontested testimony of two
expert witnesses. Based on their evaluations of Lucas, and on
Lucas's statements to them in interviews, Drs. Blum and Raffle
concluded that Lucas demonstrated an ability to control his temper
in stressful situations, and would be able to perform the duties of
a police officer. This testimony constitutes substantial evidence
supporting Board II's decision.
IV. CONCLUSION
Board II acted within its powers by holding a hearing to
determine whether Lucas remained eligible to receive disability
benefits. Since Board II's decision did not reverse or contradict
the findings of Board I, there was no violation of the doctrine of
collateral estoppel. Finally, Board II's decision terminating
Lucas's non-occupational benefits is supported by substantial
evidence.
AFFIRMED.
MATTHEWS, Justice, with whom COMPTON, Justice, joins, dissenting.
The purpose of periodic review of disability status is to
determine whether a member who was previously found to be disabled
is now capable of working as a police officer. This is a practical
standard. If a member can go back to work as a police officer, he
should not continue to receive disability payments. The board must
answer whether a member is now employable as a police officer
either because of improvement in the member's mental or physical
condition which originally led to his disability rating, or because
of new standards used by police departments.
In this case there is no evidence that Lucas's
personality disorder, which was found to be disabling by Board I,
has changed in any important way. Likewise, there is no indication
that police departments now use different standards which would
enable Lucas to perform work as a police officer. He is therefore
now no more capable of serving as a police officer than he was in
1982. Because of his personality disorder which was previously
found to be disabling, Lucas cannot find employment as a police
officer and no one seriously contends otherwise.
The explanation for Board II's decision in this case is
that the two doctors on whom Board II relied made a distinction
between unsuitability for police work and incapacity for police
work. They believe that Board I made a mistake in determining that
Lucas's personality disorder made him incapable of performing
police work. In their view, his personality disorder merely made
him unsuitable for police work.
I do not think that it is important to debate whether
there is a substantive distinction between unsuitability for police
work caused by a personality disorder and incapacity for police
work caused by the same personality disorder. Board I found that
Lucas's personality disorder constituted a disability which made
him "unable to perform his assigned duties." In order to terminate
disability payments, Board II must determine that there has been a
significant change in this personality disorder -- or a change in
police standards -- which makes Lucas now capable of doing police
work. Since no substantial evidence supports either change, Board
II's determination must be reversed.
FOOTNOTES
Footnote *:
Subsequent to the oral argument in this case, Chief Justice
Moore retired and did not participate in this decision.
Footnote 1:
When necessary to provide context, we adopt the parties'
practice of referring to the Board which granted Lucas benefits as
"Board I,"and to the Board which terminated his benefits as "Board
II."
Footnote 2:
Board I's opinion does not describe the factors which caused
Lucas's pre-existing mental condition to deteriorate into a
disability. But as the Board notes in its brief, because Lucas was
awarded non-occupational disability benefits, the cause of his
disability must have been non-occupational rather than work-
related. Lucas acknowledges this in his brief.
Footnote 3:
The current version of AMC 3.85.130 provides that non-
occupational disability "shall continue for life or until the
member has recovered from the disability for which benefits are
paid or is physically and mentally capable of performing duties
similar to those performed upon retirement." AMC 3.85.130A.
Footnote 4:
Dr. Raffle concluded that the non-occupational stressors that
had earlier made Lucas's condition acute were arguments with his
wife over corporal punishment of his children, the recent birth of
a child, and a severe chronic illness in his two-year-old son which
made the boy incontinent. He later testified before Board II that
Lucas had come to terms with some of these issues and others had
abated, and that Lucas had demonstrated a consequent ability to
control his temper in work situations and at home.
Footnote 5:
"In the typical administrative appeal based only on an agency
record, we give no deference to the decision of the superior court
and independently scrutinize the administrative action." Fairbanks
N. Star Borough Sch. Dist. v. Bowers Office Prods., Inc., 851 P.2d
56, 58 (Alaska 1993) (citing Tesoro Alaska Petroleum Co. v. Kenai
Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987)). Resolving the
first issue in this case requires interpreting the Anchorage
Municipal Code provisions which constitute the Board's authorizing
legislation. We employ the "reasonable basis"test for questions
of law where agency expertise is involved. See Underwater Constr.,
Inc. v. Shirley, 884 P.2d 150, 152 (Alaska 1994). We employ the
"substitution of judgment"test for questions of law where no
agency expertise is involved. See id. Where, as here, "the sole
issue concerns a question of statutory interpretation,"the
substitution of judgment standard applies. Id.
Footnote 6:
As the Board notes, Lucas's interpretation of the municipal
code is apparently driven by his belief that it is "fatuous to
contend that [his own condition] has improved over the mere passage
of time"-- i.e., without the benefit of psycho-therapy. Thus, in
order to demonstrate that his own, untreated, disability continues
as a matter of law, Lucas purports to find in AMC 3.85.045 a
"presumption"that only through therapy can a disability improve.
But it is not fatuous to assert that Lucas's condition has improved
"over the mere passage of time"to the point where he is no longer
disabled. Board I found that although Lucas was unsuited for
police work from the date of his hire, he was able to work for a
number of years until non-occupational stressors elevated his
personality disorder into a disability. Board II found that
because the non-occupational stressors which had triggered Lucas's
violent reactions to stressful situations had abated and/or been
dealt with by Lucas, his psychological condition was the same as or
better than it was during the first years of his APD employment,
when he was capable of performing his duties. This account of
improvement without therapy is certainly plausible; indeed, as
discussed in Part III.C, infra, it is supported by substantial
evidence in the form of expert testimony.
Footnote 7:
Whether Board II's decision improperly revisited issues
previously resolved by Board I is a question of law which involves
no agency expertise. We therefore apply the substitution of
judgment standard. See Underwater Constr., 884 P.2d at 152.
Footnote 8:
Whether the Board correctly concluded that Lucas is able to
perform the duties of a police officer and is therefore no longer
disabled is a question of fact. This court employs the
"substantial evidence"test when questions of fact are presented in
an administrative appeal. See Municipality of Anchorage, Police &
Fire Retirement Bd. v. Coffey, 893 P.2d 722, 726 (Alaska 1995).
Under this standard, "the court does not independently reweigh the
evidence . . . . [or] choose between competing inferences." Id.
Rather, it determines "whether there is substantial evidence, in
light of the whole record, such that a reasonable mind might accept
the [agency] decision." Id. (citations omitted).
Footnote 9:
We do not address Lucas's argument regarding the presumption
of continuing disability, because even if Lucas is correct, Board
II's decision should be affirmed. That is, even if the Board were
required to find that Lucas was not disabled by "clear and
convincing evidence"(rather than by a preponderance of the
evidence), we would conclude that it met that burden here, where
uncontested expert testimony supported Board II's conclusion.
Footnote 10:
As discussed, it was only through this argument that Lucas was
able to demonstrate his eligibility to receive benefits. See AMC
3.85.130C (requiring five years of pre-disability employment before
employee may participate in benefits program).
]]>
