COURT OF APPEALS DECISION DATED AND RELEASED February 20, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-1082
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
NORMAN MEKA,
Plaintiff-Appellant,
v.
CITY OF MILWAUKEE
ANNUITY AND PENSION
BOARD and ROBERT G.
NEHLS, SECRETARY AND
EXECUTIVE DIRECTOR FOR
THE CITY OF
MILWAUKEE ANNUITY AND
PENSION BOARD,
Defendants-Respondents.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: FRANK T. CRIVELLO, Judge. Affirmed.
Before Wedemeyer, P.J.,
Sullivan and Fine, JJ.
PER
CURIAM. Norman Meka appeals from a judgment and order of the
circuit court affirming a decision by the City of Milwaukee Annuity and Pension
Board that denied him duty disability benefits. The judgment and order of the circuit court are affirmed.
Meka was employed by the
City of Milwaukee Sanitation Department as a sanitation worker for
approximately twenty-five years until an injury forced him to terminate his
employment in 1992. In 1970, Meka, on
military leave from his job with the Sanitation Department, sprained his right
knee and received a permanent disability rating from the military. After completion of his military service,
Meka returned to the Sanitation Department.
On January 12, 1978, Meka suffered a back injury while on the job. At that time, Meka received treatment from
Dr. Michael Collopy for the back injury but continued working. On January 16, 1992, Meka suffered another
injury to his back while working for the Sanitation Department. He saw Dr. Collopy for treatment again. Dr. Collopy issued work restrictions and
stated that Meka had reached his ultimate point of healing. Based upon Dr. Collopy's conclusion, Meka filed
an application for retirement benefits with the Board. Meka was referred to Dr. Robert McCabe for
an independent medical examination to determine the extent of his
injuries. Dr. McCabe opined that based
upon his physical examination, Meka suffered from degenerative arthritis in
both his lumbar spine and right knee and that such disabilities were not
work-related. He also concluded that
Meka was not permanently and totally disabled.
A hearing was held
before an administrative law judge. At
the hearing, Meka testified and presented medical records including an
affidavit of Dr. Collopy that indicated that Meka's injuries were work-related
and that he was permanently and totally disabled. The Board countered with Dr. McCabe's report, which indicated
that Meka's injuries were not work-related but were degenerative in nature and
that Meka was not permanently and totally disabled.
The administrative law
judge determined that Meka was not totally and permanently disabled because of
a work injury and that the evidence did not support a determination that Meka
was entitled to duty disability benefits.
The administrative law judge based this conclusion on his determination
that Meka “could perform” work other than his duties as a sanitation
worker. The Board remanded the
administrative law judge's decision, pointing out that the test was whether
Meka could “perform the usual duties of the position held at the time of the
duty related injury.” The
administrative law judge revised his decision to again deny benefits. The Board adopted the administrative law
judge's decision, and Meka appealed the determination to the circuit court by
writ of certiorari. The circuit court
upheld the determination of the Board.
On appeal, Meka argues
that the Board's denial of benefits was contrary to the substantial evidence
contained in the record. Also, Meka
contends that the denial of benefits represents the Board's will—not its
reasoned judgment. Finally, Meka argues
that there were inconsistencies between the administrative law judge's decision
and his follow-up letter to the Board that set out his revised decision. We disagree.
On review of a judgment
entered on certiorari, this court's function is to review not the judgment or
findings of the trial court but, rather, to review the record before the
administrative agency. State ex
rel. Harris v. Annuity & Pension Bd., 87 Wis.2d 646, 651, 275
N.W.2d 668, 671 (1979). Where a
petitioner challenges the Board's decision as arbitrary and unreasonable and
representing its will and not its judgment, the test is whether the Board “has acted
without a rational basis or the exercise of discretion.” State ex rel. Ruthenberg v. Annuity
& Pension Bd., 89 Wis.2d 463, 473, 278 N.W.2d 835, 839-840
(1979). Where a petitioner argues that
the denial of benefits was contrary to the substantial evidence contained in
the record, this court “must evaluate the evidence, which has been determined
to be credible and accepted by the trier of the fact[,] to see if its
sufficiency reaches that degree of substantiality in terms of burden of proof
to support a finding or of convincing power that reasonable men acting
reasonably might reach the decision the administrative agency did.” State ex rel. Beierle v. Civil Service
Comm'n, 41 Wis.2d 213, 218, 163 N.W.2d 606, 608 (1969) (citation
omitted); see ch. 227, Stats.
Milwaukee City Charter §
36-05-3-a provides:
....
Any member in active service who shall become permanently and totally
incapacitated for duty as the natural and proximate result of an injury
occurring at some definite time and place while in the actual performance of
duty shall, upon filing a request for retirement with the board on a form
provided by the board for that purpose, be entitled to a duty disability
retirement allowance....
In
his application for duty disability retirement and statement of disability to
the Employer's Retirement System, Meka states that he cannot return to his
position at the Sanitation Department as a result of two separate back
injuries; one occurring on January 12, 1978, and the other on January 16, 1992. Meka also refers to the condition of his
right knee as a further basis for duty disability.
Regarding the January
12, 1978, back injury, it is undisputed that Meka sustained a back strain while
in the course of his employment with the Sanitation Department. After being off work for approximately eight
months, Meka returned to work full-time without further injury until January
1992. The record reflects that Meka
fully recovered from the January, 1978, incident because he performed full-time
duty with the Sanitation Department for the next 14 years. Therefore, this injury did not result in
Meka's permanent and total incapacitation for duty as contemplated by
§ 36-05-3-a of the Milwaukee City Charter.
As noted, Meka injured
his back again on January 16, 1992, while lifting a garbage can on the
job. After an examination by Dr.
Collopy, Meka's treating physician, Dr. Collopy recommended that Meka apply for
duty disability benefits because of his back injuries. It was Dr. Collopy's opinion that the back
injury was work-related and that Meka had reached a healing plateau. At the Board's request, Meka was also
examined by Dr. McCabe for an independent medical examination of his
injuries. Dr. McCabe opined that the
back condition was due to pre-existing advanced degenerative arthritis and was
not the result of the work injuries.
The administrative law judge chose to discount the opinion of Dr.
Collopy. As the administrative law
judge is the judge of the credibility of the witnesses, we cannot say that its
rejection of Dr. Collopy's finding was in error. See Bucyrus-Erie Co. v. DILHR, 90 Wis.2d
408, 418, 280 N.W.2d 142, 147 (1979).
Regarding the right knee
injury, it should be noted that a specific date of injury to his right knee was
not identified by Meka on the statement of disability or the application for
disability. Therefore, Meka has not
reported a knee injury “occurring at some definite time and place while in the
actual performance of duty” as required by § 36-05-3-a of the Milwaukee
City Charter.
Finally, Meka argues
that there was an inconsistency between the administrative law judge's decision
and his revised decision. We note that
in the administrative law judge's findings of fact, he cited Dr. McCabe's
conclusion that Meka's disability was not the result of his employment, but
rather the result of a pre-existing degenerative condition. In his Conclusions of Law, the administrative
law judge determined that Meka had not met the criteria set forth in
§ 36-05-3-a of the Milwaukee City Charter. In his follow-up letter to the Board containing his revised
decision, the administrative law judge cites Dr. McCabe's report as the basis
for the denial of benefits. Although we
are troubled by what may, at first blush, look as though the administrative law
judge merely “repaired” his earlier decision in order to reach a desired
result, the evidence in the record supports the Board's determination. Accordingly, under our standard of review,
we must affirm.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.