Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: EMPLOYMENT disability pension Board’s decision to deny service-connected disability pension was arbitrary and capricious where it failed to articulate any reasoning for its interpretation of code terms – Posed with two options from legal counsel, Board failed to observe the essential requirements of law when it unilaterally selected the one that operated to exclude Petitioner’s claims, notwithstanding the lack of Florida law supporting that interpretation – Insufficient competent evidence supported Board’s decision to deny benefits for what appears to be a service-connected disability under city Code.  Petition granted.  Horne v. City of St. Petersburg, No. 09-000010AP-88B (Fla. 6th Cir. App. Ct. July 22, 2010).

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING AND, IF FILED, DETERMINED

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

 IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

MELVINIA HORNE,

                  Petitioner,

v.                                                                                             Ref. No.:  09-000010AP-88B

                                                                                                UCN:  522009AP000010XXXXCV

CITY OF ST. PETERSBURG, and/or

BOARD OF TRUSTEES OF THE

EMPLOYEES’ RETIREMENT SYSTEM

OF THE CITY OF ST. PETERSBURG,                           

                  Respondent.                    

___________________________________/

 

 

ORDER GRANTING AMENDED PETITION FOR CERTIORARI

            THIS CAUSE is before the Court on the Amended Petition for Writ of Certiorari filed by Petitioner Melvinia Horne on March 20, 2009.  Petitioner seeks an Order quashing the decision of the Respondent Board of Trustees of the Employees’ Retirement System of the City of St. Petersburg (“Respondent” or “Board”) dated June 18, 2008, and directing the Board to award Petitioner a service-connected disability pension retroactive to the date of her application.  Respondent filed a response, to which Petitioner filed a reply.  Upon consideration, this Court finds that the Petition for Writ of Certiorari is hereby granted.

            Petitioner was an employee of the City of St. Petersburg (“City”) from March 1990 until her termination effective May 5, 2006, due to her physical inability to perform her job, specifically, maintaining regular full-time attendance.  At all material times, she was a member of the Employees’ Retirement System (“System”) of the City of St. Petersburg, which provides retirement and disability benefits to non-uniformed City employees. 

            Section 22-131(a) of the St. Petersburg Code (“Code”) empowers the Board with “the general administration and the responsibility for the proper operation of the retirement system and for making effective provisions of this division.”  As part of that duty, the Board receives

and adjudicates employees’ application for service-incurred disability benefits.  Section 22-131 authorizes the Board to “establish from time to time such rules and regulations for the administration of the retirement system as necessary.”  On May 10, 2006, the Board adopted a Resolution establishing that “repetitive trauma injuries do not meet the criteria for Service-connected Disability Retirement as defined in Section 22-132(c)(1) of the St. Petersburg City Code.” 

            On May 31, 2006, Plaintiff applied for a service-connected disability pension based on problems with her upper extremities, i.e., her hands, wrists, and arms.  The Board conducted hearings on February 14, 2007; May 9, 2007; and November 14, 2007, and it entered an Order granting a non-service connected disability benefit with an effective date of June 12, 2006,[1] but denying the application for a service-connected disability pension.  In pertinent part, the Board noted the following in its Order:  “In exercising these powers, the Board’s March 10, 2006 interpretation of service-connected disability as not including repetitive trauma such as was suffered by the applicant was within its power and authority.”         

            Consistent with its procedures following a denial of disability, the Board conducted an evidentiary hearing on June 18, 2008.  At the hearing, Petitioner testified that accidents occurring on February 12, 1992; April 15, 1994; and October 18, 1995,[2] caused the symptoms in her hands, wrist, and elbow, for which she was continuously treated to the time of her termination.  Two board-certified orthopedic surgeons testified by telephone at the hearing, to wit:  Dr. Bramlet, who treated Petitioner for hand, wrist, and elbow problems since 1995; and Dr. Zak, who treated her for back and neck problems.  Both opined that her injuries and disabilities were service-connected, and both also testified that Petitioner’s injuries resulted from those accidents combined with years of repetitive use in the course of her employment with the City.

            In January 2008, the Board entered a written Order denying service-connected disability retirement benefits to Petitioner.  In her Petition, the Petitioner asserts that the Board’s decision violates the law, constitutes an abuse of discretion, and is arbitrary and capricious.  She also asserts that the Board’s decision is not based on competent substantial evidence to support the Board’s decision, and finally, that the Board violated her equal protection rights as a disabled person as guaranteed by the Florida Constitution.

            The standard of review used by the appellate court when reviewing the actions of a local administrative agency is whether (1) procedural due process was accorded; (2) the essential requirements of law were observed; and (3) the administrative findings and judgment were supported by competent substantial evidence.  Haines City Comty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995).  When applying this standard, the appellate court cannot reweigh evidence or substitute its judgment for that of the Board.  Id. at 530; Dusseau v. Metro. Dade County Bd. of County Comm’rs, 794 So. 2d 1270, 1275-76 (Fla. 2001).  An administrative agency’s “interpretation of a statute which it is charged with enforcing is entitled to great deference and will not be overturned unless it is clearly erroneous or contrary to legislative intent.”  Carter v. Health Mgmt. Assocs., 989 So. 2d 1258, 1265 (Fla. 2d DCA 2008), quoting Fla. Dep’t of Revenue v. Fla. Municipal Power Agency, 789 So. 2d 230, 232 (Fla. 2001). 

            The Code provision at issue, section 22-132(c)(1), provides:

 

                        (c)  Accidental disability retirement income:

(1)  Upon the application of a member or of the head of such member's department, any member who is not eligible for a service retirement income and who has been totally and permanently incapacitated for duty as the natural and proximate result of an accident sustained in service as a member and occurring while in the actual performance of duty at some definite time and place, without willful negligence on such person's part, may be retired by the Board if two or more physicians nominated by the Board shall certify that the member is mentally or physically totally incapacitated for the further performance of duty, that the incapacity is likely to be permanent and that the member should be retired.    

(Emphasis added.)  The Code does not define “accident” as used in this provision.   

            Petitioner argues that the Board improperly enacted a rule or policy defining an “accident” to exclude repetitive trauma injuries from a service-connected disability.  She relies largely on the definitions of the terms, “accident” and “injury,” as contained in the Worker’s Compensation Act, Florida Statutes sections 440.02(1), (19).  She also sites to worker’s compensation case law in which court have construed “accident” to encompass a repetitive trauma type of injury, or an injury arising from a series of occurrences instead of a single occurrence.[3] 

            The record reflects that in a Board meeting on March 8, 2006, the Board considered the accidental disability retirement application of another employee, Robert G. Freist, who also suffered from carpal tunnel syndrome resulting from repetitive motion.  At this meeting, the Board determined that, in order to consider the application, it needed a legal interpretation of whether it could consider repetitive motion injuries as service related under the Code.  As a legal advisor to the Board, an Assistant City Attorney present at the meeting stated that based on what other pensions boards have done in similar cases, she did not know how the Board would be able to say that a host of repetitive motion type injuries would be excluded from being service-connected.

            Assistant City Attorneys provided a written response to the Board’s inquiry by a memorandum dated May 2, 2006, advising that the decision of whether a repetitive trauma is an acceptable basis for accidental service-connected disability is within the discretion of the Board.  The memorandum presented the Board with two options:  (1) to interpret “accident” broadly to include repetitive trauma as the Florida courts have done in worker’s compensation cases; or (2) to interpret “accident” narrowly to exclude repetitive trauma consistent with a New York state court decision.  The memorandum indicated that they consulted with outside pension counsel who agreed that either interpretation would be reasonable.

            While the Code appoints the Board to interpret the terms of its pension plans, the Board passed a policy that essentially defined or redefined terms within the Code.  In its Order denying Petitioner’s application, the Board referenced its May 10, 2006, Resolution as a basis for the denial.  The Board provided no explanation, however, either in the Resolution or its denial Order, for its decision to interpret “accident” narrowly.  Posed with two options from legal counsel, the Board unilaterally selected the one that operated to exclude Petitioner’s claims, notwithstanding the lack of Florida law supporting that interpretation.  Given its failure to articulate any reasoning for its interpretation other than a reiteration of the (undefined) terms of Code section 22-132, the Board’s decision was arbitrary and capricious.  Also, there was insufficient competent evidence to support its decision to deny benefits for what appears to be a service-connected disability under Code section 22-132(c)(1).  As such, the Board failed to observe the essential requirements of law, and the matter is remanded for further proceedings.[4]

            Accordingly, it is hereby

            ORDERED that the Amended Petition for Writ of Certiorari is GRANTED.

            DONE AND ORDERED in Chambers, in St. Petersburg, Pinellas County, Florida, this _______ day of July 2010.

 

Original order entered on July 22, 2010 by Circuit Judges Amy M. Williams, Peter Ramsberger, and Pamela A.M. Campbell.

 

 

Copies furnished to:

 

James A. Sheehan, Esq.                                                           

170 Giralda Blvd. NE                                                   

St. Petersburg, FL 33704                                              

Attorney for Petitioner                                                  

 

Robert Sugarman, Esq.

100 Miracle Mile, Suite 300

Coral Gables, FL 33134

Attorney for Respondent

 

 



              [1]The parties do not dispute that Petitioner was totally and permanently incapacitated for duty and should be retired.  The parties also do not dispute that Petitioner’s injuries were repetitive motion injuries that occurred while she was performing her employment duties. 

              [2]On the Notice of Injury forms submitted in relation to her workers’ compensation claims, Petitioner reported as “Employee’s Description of the Accident” that she “[FELT] A KNOT ON WRIST WHILE TYPING” on 02/12/92; “Doing computer entry, injured RT & L [HAND]” on 4/15/94; and “TYPING/REPETI[TI]VE USE OF LEFT HAND/ARM” on 10/18/95.”  (Emphasis in the original.)

              [3]Petitioner notes that several District Courts of Appeal cases have declined to apply worker’s compensation standards to pension case.  See Div. of Retirement v. Putnam, 386 So. 2d 824 (Fla. 1st DCA 1980); Dixon v. Dep’t of

 

              [4]This Court has no power when exercising its jurisdiction in certiorari to enter a judgment on the merits of the controversy under consideration or to direct the respondent to enter any particular order or judgment.  City of St. Petersburg v. Meaton, 987 So. 2d 755, 758 (Fla. 2d DCA 2008).  When the petition is granted, the subject matter of the controversy remains pending before the administrative authority as if no order had been entered.  Broward County v. G.B.V. Int'l, Ltd., 787 So. 2d 838, 844 (Fla. 2001); Tamiami Trail Tours, Inc. v. Railroad Comm’n, 174 So. 451, 453-54 (Fla. 1937).  The parties’ pleadings and proof and their rights remain as they existed when the challenged order was originally entered and as if this Court’s order granting certiorari had not been entered. Tamiami Trail Tours, Inc., 174 So. at 454; BMS Enters. LLC v. City of Fort Lauderdale, 929 So. 2d 9, 12 (Fla. 4th DCA 2006).