{ "id": 8522387, "name": "IN THE MATTER OF THE APPLICATION AND CLAIM OF MELVIN C. WALSH, JR., A MEMBER OF THE ASHEVILLE POLICE DEPARTMENT, FOR RETIREMENT FOR DISABILITY WHILE ACTING IN THE LINE OF DUTY", "name_abbreviation": "In re the Application & Claim of Walsh", "decision_date": "1986-03-04", "docket_number": "No. 8528SC824", "first_page": "611", "last_page": "618", "citations": [ { "type": "official", "cite": "79 N.C. App. 611" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "156 S.E. 2d 838", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "pin_cites": [ { "page": "840" }, { "page": "840" }, { "page": "841" }, { "page": "844" }, { "page": "844" }, { "page": "842" } ], "opinion_index": 0 }, { "cite": "271 N.C. 430", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564541 ], "weight": 8, "pin_cites": [ { "page": "431" }, { "page": "432" }, { "page": "432" }, { "page": "434" }, { "page": "437" }, { "page": "437" }, { "page": "434" } ], "opinion_index": 0, "case_paths": [ "/nc/271/0430-01" ] }, { "cite": "189 Colo. 486", "category": "reporters:state", "reporter": "Colo.", "case_ids": [ 4551469 ], "weight": 2, "year": 1975, "opinion_index": 0, "case_paths": [ "/colo/189/0486-01" ] }, { "cite": "96 Nev. 718", "category": "reporters:state", "reporter": "Nev.", "case_ids": [ 8558837 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/nev/96/0718-01" ] }, { "cite": "622 S.W. 2d 535", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9972518 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/sw2d/622/0535-01" ] }, { "cite": "279 S.E. 2d 636", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "308 S.E. 2d 735", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "736-37" } ], "opinion_index": 0 }, { "cite": "65 N.C. App. 44", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521819 ], "year": 1983, "pin_cites": [ { "page": "46" } ], "opinion_index": 0, "case_paths": [ "/nc-app/65/0044-01" ] }, { "cite": "270 S.E. 2d 106", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "300 N.C. 562", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563992, 8564011, 8563944, 8563965 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0562-03", "/nc/300/0562-04", "/nc/300/0562-01", "/nc/300/0562-02" ] }, { "cite": "265 S.E. 2d 379", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "383" }, { "page": "383" } ], "opinion_index": 0 }, { "cite": "299 N.C. 620", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575681 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "626" }, { "page": "627" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0620-01" ] } ], "analysis": { "cardinality": 651, "char_count": 15124, "ocr_confidence": 0.801, "pagerank": { "raw": 2.0446031217563963e-07, "percentile": 0.7517361050779409 }, "sha256": "54b34e368a7e096e671c812cd8d8bcd396d1b2f05e2d0f629046958798a1f6f3", "simhash": "1:492cd175258bde58", "word_count": 2485 }, "last_updated": "2023-07-14T14:35:53.333939+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Becton and Parker concur." ], "parties": [ "IN THE MATTER OF THE APPLICATION AND CLAIM OF MELVIN C. WALSH, JR., A MEMBER OF THE ASHEVILLE POLICE DEPARTMENT, FOR RETIREMENT FOR DISABILITY WHILE ACTING IN THE LINE OF DUTY" ], "opinions": [ { "text": "WHICHARD, Judge.\nThe scope of judicial review of a decision made by a town board sitting as a quasi-judicial body must include:\n(1) Reviewing the record for errors in law,\n(2) Insuring that the procedures specified by law in both statute and ordinance are followed,\n(3) Insuring that appropriate due process rights of a petitioner are protected including the right to offer evidence, cross-examine witnesses and inspect documents,\n(4) Insuring that decisions of town boards are supported by competent, material and substantial evidence in the whole record, and\n(5) Insuring that decisions are not arbitrary and capricious.\nConcrete Co. v. Board of Commissioners, 299 N.C. 620, 626, 265 S.E. 2d 379, 383, rehearing denied, 300 N.C. 562, 270 S.E. 2d 106 (1980); Cannon v. Zoning Bd. of Adjustment of Wilmington, 65 N.C. App. 44, 46, 308 S.E. 2d 735, 736-37 (1983). Both the superior court and the Court of Appeals are bound by the foregoing scope of review. Concrete Co., 299 N.C. at 627, 265 S.E. 2d at 383.\nThe initial question for this Court is which of a series of amendments to the Asheville policemen\u2019s pension fund legislation applies to petitioner\u2019s claim for benefits. Petitioner began working for the Asheville Police Department 1 April 1960. At that time the pension fund provided for increased disability payments to any member of the Asheville Police Department who became \u201cdisabled while acting in the line of his police duties, and is unable to work . . . .\u201d 1939 N.C. Public-Local Laws, ch. 242, sec. 7, as amended by 1955 N.C. Sess. Laws, ch. 322, sec. 2. Chapter 188 of the 1977 Session Laws superseded the Asheville policemen\u2019s pension fund legislation in effect when petitioner began working for the police department. Eligibility requirements for line-of-duty disability benefits were broadened by the provisions of the 1977 pension fund legislation. It provided that any member of the Asheville Police Department who becomes \u201cdisabled while acting in the line of his police duties or as a result of the performance of duties as a member of the Asheville Police Department, and is unable to work as a policeman,\u201d is entitled to line-of-duty disability benefits. 1977 N.C. Sess. Laws, ch. 188, sec. 9. The eligibility requirements for line-of-duty disability benefits were again amended in 1979. The 1979 amendments provided that any member of the Asheville Police Department who becomes \u201cdisabled while acting in the line of duty, as defined in this act, and is unable to work as a policeman . . shall receive line-of-duty disability benefits. 1979 N.C. Sess. Laws, ch. 429, sec. 1(d), as amended by 1985 N.C. Sess. Laws, ch. 647, sec. 1. \u201cLine of duty\u201d is defined as follows:\nFor purposes of this act, references to \u201cline of duty\u201d shall mean a disability or death which is the natural and proximate result of an accident occurring while in the actual performance of duty as a member of the Asheville Police Department, as defined in this act, at some definite time and place.\n1979 N.C. Sess. Laws, ch. 429, sec. 1(d).\nThe city council denied petitioner\u2019s claim for line-of-duty disability benefits under the provisions of the 1977 pension fund legislation as amended by chapter 429 of the 1979 Session Laws. Petitioner maintains, however, that his claim for benefits should have been considered under the provisions of the pension fund legislation as they appeared 1 April 1960, the date he began working for the Asheville Police Department. He argues that any application of subsequent amendments to his claim constitutes a violation of his constitutional rights to due process and equal protection.\nWe need not reach petitioner\u2019s constitutional arguments. Chapter 188, section 28 of the 1977 Session Laws, as amended by chapter 261, section 2 of the 1981 Session Laws, limits the effect of the 1977 pension fund legislation as follows:\nNo provision of this act shall be construed so as to modify in any respect the benefits granted under Chapter 242, Public-Local Laws of 1939, amended by Chapter 311, Session Laws of 1945 and Chapter 322, Session Laws of 1955 to employees of the Asheville Police Department assigned to said department prior to the effective date of this act or to the effective date of any such employees\u2019 retirement and disability plan covering future employees of such department; provided, however, that employees of said department covered by this act may within one year after the effective date of any new plan, voluntarily and irrevocably elect in writing to withdraw from participation in said existing plan and to participate in and contribute to the new plan for their department, in which case they shall be entitled to no further benefits of said existing plan and shall be entitled to withdraw all contributions made by them into said plan. [Emphasis supplied.]\nBy using the phrase \u201cbenefits granted,\u201d the legislature arguably intended to preserve only those benefits which accrued under the previously enacted pension fund act as the result of a disability or retirement prior to the effective date of the new act. We believe the better interpretation, however, is that it intended to preserve the \u201cbenefits granted\u201d under the previous act, regardless of whether those benefits in fact accrued before the effective date of the new act.\nThe language emphasized above supports such an interpretation. The legislature in essence provided that the provisions of the previously enacted plan continue to apply \u201cto employees of the Asheville Police Department assigned to said department prior to the effective date of [the 1977 pension fund act] . . .,\u201d not just to those employees who actually had been disabled or had retired as of that date. The remaining portions of section 28 preserve an employee\u2019s entitlement to benefits under the newly enacted pension fund act in the event of subsequent pension fund legislation. It is reasonable to conclude that the legislature also intended to preserve an employee\u2019s entitlement to benefits under the previously enacted pension fund act. In enacting section 28 the legislature undoubtedly sought to avoid the constitutional questions raised by retroactive application of amendments to public pension fund legislation. See e.g., Wagoner v. Gainer, 279 S.E. 2d 636 (W.Va. 1981); Blackwell v. Quarterly County Court, 622 S.W. 2d 535 (Tenn. 1981); Public Employees\u2019 Retirement Board v. Washoe County, 96 Nev. 718, 615 P. 2d 972 (1980); Taylor v. Public Employees\u2019 Retirement Ass\u2019n, 189 Colo. 486, 542 P. 2d 383 (1975).\nAs petitioner was an employee of the Asheville Police Department prior to the effective date of the 1977 pension fund act, his claim to line-of-duty disability benefits must be considered under the provisions of \u201cChapter 242, Public-Local Laws of 1939, amended by Chapter 311, Session Laws of 1945 and Chapter 322, Session Laws of 1955 . . . .\u201d 1977 N.C. Sess. Laws ch. 188, sec. 28, as amended by 1981 N.C. Sess. Laws, ch. 261, sec. 2. Thus, the council erred as a matter of law in applying chapter 188 of the 1977 Session Laws as amended by chapter 429 of the 1979 Session Laws.\nThe council\u2019s error clearly prejudiced petitioner\u2019s claim for line-of-duty disability benefits. While the provisions of both pension funds provide similar benefits for policemen disabled while acting in the \u201cline of duty,\u201d chapter 429, section 1(d) of the 1979 Session Laws, quoted supra, narrowly defines line of duty. The following findings of fact indicate that the council relied heavily upon that narrow definition of \u201cline of duty\u201d:\n22. The heart attack sustained by Mr. Walsh on October 5 or October 6, 1983, does not constitute \u201can accident occurring while in the actual performance of duty ... at some definite time and place\u201d as required by Section 9(A) of the Policemen\u2019s Pension Fund Law (Chapter 429, 1979 Session Laws).\n23. Even [if] it were conceded that the heart attack sustained by Mr. Walsh was \u201can accident\u201d as required by Section 9(A), Mr. Walsh\u2019s disability is not the \u201cnatural and proximate result\u201d of the heart attack per se.\nFurther, the definition of \u201cline of duty\u201d contained in chapter 429, section 1(d) of the 1979 Session Laws and relied upon by the council differs greatly from the Supreme Court\u2019s interpretation of what constitutes \u201cacting in the line of duty\u201d under the terms of the pension fund legislation in effect when petitioner was hired. See In re Duckett, 271 N.C. 430, 156 S.E. 2d 838.\nIn Duckett, an Asheville fireman suffered a heart attack and died while on duty. Shortly before the fatal heart attack he had attempted to beat out a fire with a pine branch. There was no evidence, however, that he had been \u201covercome with smoke or anything of that sort.\u201d Duckett, 271 N.C. at 431, 156 S.E. 2d at 840. Moreover, testifying medical experts found \u201c[no] real evidence that the exertion itself caused the infarction . . . .\u201d Duckett, 271 N.C. at 432, 156 S.E. 2d at 840. Concluding \u201c[t]hat said heart attack was not caused and did not result from exertion or exhaustion related directly or indirectly to fire fighting, or line of duty, but rather resulted from some disease or condition or infirmity . . .,\u201d the Board of Examiners denied the fireman\u2019s widow line-of-duty disability benefits. Duckett, 271 N.C. at 432, 156 S.E. 2d at 841. The superior court granted a Writ of Certiorari, reversed the decision of the Board of Examiners, and awarded line-of-duty disability benefits to the widow.\nIn affirming the court\u2019s order the Supreme Court noted that \u201c \u2018[t]he right to a pension depends upon the statutory provision therefor, and the existence of such right in particular instances is determinable primarily from the terms of the statute under which the right or privilege is granted.\u2019 \u201d Duckett, 271 N.C. at 434, 156 S.E. 2d at 842 quoting 40 Am. Jur. Pensions sec. 23, p. 980. The court applied the rule that \u201cwords of a statute must be given their natural or ordinary meaning,\u201d Duckett, 271 N.C. at 437, 156 S.E. 2d at 844, and concluded that:\n[A] person is acting \u2018while in the line of duty\u2019 when he acts at the time and place he is required to be at work and when he is engaged in the performance of his duties or is engaged in activities incidental to his duties. The term \u2018while in line of duty\u2019 is synonymous with \u2018while in the course of employment\u2019 or \u2018while in the discharge of duty.\u2019 . . .\nIn order for appellant to prevail, we would have to read into the statute a requirement that there be a causal relation between his disability and his duties. This we cannot do.\nDuckett, 271 N.C. at 437, 156 S.E. 2d at 844.\nThus, under the provisions of the pension fund legislation in effect when petitioner was hired, the council could have determined that he was disabled \u201cwhile acting in the line of duty.\u201d The court erred in concluding that the council\u2019s decision was not affected by error of law. The judgment is therefore vacated, and the cause is remanded to the superior court with instructions to remand to the Asheville City Council for a determination in accord with this opinion.\nVacated and remanded.\nJudges Becton and Parker concur.\n. In Duckett the Court interpreted provisions of the \u201cAsheville Firemen\u2019s Pension and Disability Fund,\u201d 1939 N.C. Public-Local Laws, ch. 243, sec. 7 as amended by 1955 N.C. Sess. Laws, ch. 320, sec. 2. Duckett, 271 N.C. at 434, 156 S.E. 2d at 842. The provisions of that fund exactly parallel the provisions of the Asheville policemen\u2019s pension fund legislation in effect at the time plaintiff was hired. 1939 N.C. Sess. Laws, ch. 242, sec. 7, as amended by 1955 N.C. Sess. Laws, ch. 322, sec. 2. Subsequently, the Asheville firemen\u2019s pension fund legislation has been repealed. 1981 N.C. Sess. Laws, ch. 261, sec. 2.", "type": "majority", "author": "WHICHARD, Judge." } ], "attorneys": [ "Roberts, Cogburn, McClure & Williams, by Max 0. Cogburn, Isaac N. Northup, Jr., and Glenn S. Gentry, for petitioner appellant.", "William F. Slawter for respondent appellee." ], "corrections": "", "head_matter": "IN THE MATTER OF THE APPLICATION AND CLAIM OF MELVIN C. WALSH, JR., A MEMBER OF THE ASHEVILLE POLICE DEPARTMENT, FOR RETIREMENT FOR DISABILITY WHILE ACTING IN THE LINE OF DUTY\nNo. 8528SC824\n(Filed 4 March 1986)\n1. Retirement Systems \u00a7 5\u2014 policemen\u2019s pension fund legislation \u2014 intent to preserve prior benefits\nIn enacting Ch. 188 of the 1977 Session Laws which superseded the Asheville policeman\u2019s pension fund legislation then in effect, the Legislature intended to preserve an employee\u2019s entitlement to benefits under the previously enacted pension fund act regardless of whether those benefits in fact accrued before the effective date of the new act.\n2. Retirement Systems \u00a7 5\u2014 line-of-duty disability benefits \u2014 consideration of claim under wrong act\nPetitioner was entitled to have his claim for line-of-duty disability retirement benefits for disability from a heart attack considered under the pension fund act in effect at the time he was hired by the Asheville Police Department in 1960, and the city council committed prejudicial error in considering the claim under the 1977 pension fund act where the council, in denying petitioner\u2019s claim, relied on the narrow definition of \u201cline of duty\u201d in the 1977 act, and the council could have determined that petitioner was disabled \u201cwhile acting in the line of duty\u201d under the provisions of the pension fund legislation in effect when he was hired as a policeman.\nAppeal by petitioner from Lewis, Robert D., Judge. Judgment entered 26 April 1985 in Superior Court, BUNCOMBE County. Heard in the Court of Appeals 10 December 1985.\nDuring the early evening of 5 October 1983, while on duty as a member of the Asheville Police Department, petitioner began to suffer chest and arm pains. During that evening petitioner\u2019s work consisted primarily of making investigative telephone calls from the police department.\nAt approximately 11:30 p.m. petitioner left the department to investigate the scene of a rape. At the scene a fellow officer observed that petitioner was pushing upward in the area of his diaphragm and that his face was discolored. Petitioner went home shortly thereafter. Early the next morning he awoke with increased chest pains and was taken to the hospital. He was diagnosed as having had an acute myocardial infarction (a heart attack of moderate severity).\nOn 31 May 1984 petitioner applied to the Board of Examiners and Board of Trustees of the Asheville Policemen\u2019s Pension and Disability Fund for retirement benefits by reason of having become disabled while acting in the line of duty. After a hearing the Board of Examiners determined that petitioner was disabled, but characterized his disability as having not been received in the line of duty. The Board of Trustees adopted the recommendation of the Board of Examiners. The Asheville City Council approved the Board\u2019s denial of petitioner\u2019s request for line-of-duty disability retirement.\nOn 31 December 1984 petitioner\u2019s Petition for Writ of Cer-tiorari seeking judicial review of the city council\u2019s decision was granted pursuant to N.C. Gen. Stat. 1-269. By judgment entered 26 April 1985 the superior court upheld the council\u2019s denial of petitioner\u2019s request for line-of-duty disability benefits.\nPetitioner appeals.\nRoberts, Cogburn, McClure & Williams, by Max 0. Cogburn, Isaac N. Northup, Jr., and Glenn S. Gentry, for petitioner appellant.\nWilliam F. Slawter for respondent appellee." }, "file_name": "0611-01", "first_page_order": 639, "last_page_order": 646 }