Jules Moity VS Firefighters' Retirement System

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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2006 CA 0775 y JULES MOITY 7 df i VERSUS V FIREFIGHTERS RETIREMENT SYSTEM Judgment Rendered March 23 2007 Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Suit Number 528 983 Honorable Richard A Kay Bates Judge Counsel for Plaintiff Appellee Tonry Michael C Ginart Jules Moity Kim C Jones Cullen A Tonry Chalmette LA and Daniel A Claitor Baton Rouge LA Counsel for Defendant Steven S Stockstill Baton Rouge LA BEFORE Firefighters System PARRO GUIDRY AND McCLENDON JJ c i Appellant Retirement McCLENDON J This appeal challenges Retirement Firefighters a district court System denying retirement We amend the reversal of s decision of the for application an judgment and affirm a as disability amended BACKGROUND The record reflects that in 1976 when he Moity was involved in right hip removed as a a motorcycle accident and He underwent surgery in which Approximately fifteen years later employment physical examination examination contains surgery a on 1991 Mr Board of Trustees Moity performed the result fractured his inserted and later were Mr Department Moity was hired He passed a pre right hip fracture and resulting His in the application for membership Board on requirements June 28 of his job was 1991 as a firefighter until however he exhausted all of his sick and annual leave December 10 2003 by December 31 2004 On January Mr a Moity applied for membership Mr Firefighters Retirement System FRS approved by FRS as Febluary 20 1991 The report of that notation of the 1976 On March 4 pins thirteen years old Jules in 1991 St Bernard Parish Fire firefighter by the was Moity underwent an 15 2004 at the evaluation orthopedic performed by rays obtained that Dr Robert day revealed Ruel Jr According a deformity of the right femoral head of the right hip with severe disalignment Ruel severe diagnosed Mr to Dr request of his employer joint Ruel space s report narrowing and Moityas suffering from right hip and noted the probability that replacement x Mr severe severe arthritic hip in its present condition to carry out Moity will require his 2 a pain total Moity had a hip Dr Ruel firefighting duties with He also noted that Mr Dr arthritis post traumatic surgery in the future to alleviate his arthritic opined that Mr Moity was unable changes the chemical dependency itself and on one felt that Mr pain that medication which Dr Ruel described prevented Moity from being Mr Moity was capable of doing sedentary operator Dr Ruel an light duty jobs to in disability as a the at fire station In Mr April of 2004 Moity applied retirement He claimed in his hip disease that resulted from the over the course of his application reflected that Mr with anti On Dr Moity has end degenerative being for disability firefighter a application Mr hip pain by Dr Adatto 2002 report s stage arthritis of the hip which he treated inflammatory and pain medications May these facts 12 2004 l at comprehensive s treatment John Watermeier Danny Menesses the Chief Administrative Officer for the St Bernard Parish government parish demands of In connection with the Moity submitted medical records of his Kenneth Adatto and Dr for that he suffered from physical emploYment the FRS to the time Mr pre Moity 2 Mr outside medical an the FRS to offer by the parish he passed for a number of years not 3 some affect Mr it was a led to the deterioration of his right hip residual Moity the specialists that the rigors and physical firefighter position maintained to right hip fracture and joint however that injury did training or hired letter Moity made full disclosure of the motorcycle accident that left him with the performance was a emplOYment physical examination performed by the medical staff discomfort in that wrote 4 job opinion stress and s Mr exemplary working record for the parish and of of the Moity was well respected by his peers On October 14 2004 at the by Dr Larry Ferachi the State Medical an request of FRS Mr Moity orthopedist Disability Board who was FRS evaluated appointed physician Dr Ferachi stated that 3 was x to rays revealed advanced osteoarthritic the femoral head and changes of the right hip with no joint a Dr Ferachi space maintained of complete collapse opined that Mr Moity has advanced osteoarthritis of his right hip secondary to the 1976 traumatic a total fracture end stage arthritis Given these arthroplasty unable to return to any type of clarification of preexisting as a lnent emplo FRS Dr sent disability is status in need of the doctor stated Mr physical findings Shortly thereafter based and Moity Ferachi letter a Dr Ferachi requesting asked whether was 14 2004 examination Mr Moity result of the 1976 motorcycle accident and resulting right hip fracture question was followed with spaces checked both the yes and Ferachi advanced osteoarthritis of his s wrote no to spaces that the fracture advanced osteoarthritis of the Yes answer and the right hip was a The Dr Ferachi Dr report of Mr Moity s but that the stress and habits of right hip primary No Read the commenting was is firefighter the medical records he reviewed and his October on hip a cause firefighter increased the risk to develop osteoarthritis of the hip At its meeting November 18 2004 the Board considered Mr regularly scheduled monthly business Moity s disability retirement application Dr Ferachi s language preexisting conditions found in La reads as on report follows was a presented ny to the Board RS disability claimed by statewide retirement system must along with the statutory a honored in the denied Mr Moity s case application notifying dated November 23 2004 that after of preexisting conditions reviewing the Mr provision a state or commencement Disability claims shall Thereafter the Board Moity of its decision by letter Therein FRS Benefit Analyst Jason Starns noted evidence and based upon Dr Ferachi 4 That member of have been incurred after of service in the system with which the claim is filed not be 11 216 s report it was determined that the medical condition upon which Mr claim for disability retirement benefits was were On November 29 for Mr Moity Medical Disability benefit 2004 Mr to be examined on preexisted his membership whether Mr was date of his In membership in second a could s FRS not present condition Broussard the right hip a ananged second State Broussard the FRS s condition right hip condition to Dr arose Broussard before or by after the March 4 1991 x the Dr Broussard on December 21 rays taken in his office showed of the work in any way Regarding Moity question posed opinion rendered by to to Dr FRS to question of causation stressing that The changes with deformity continue letter a whether Mr Dr Broussard noted that osteoarthritic In on in FRS Moity Dr Thad Broussard by Board doctor focusing was Moity notified FRS that he intended Pursuant to La R S 11 218 analyst sought assistance the Board 2004 available in light of La R S 11 216 the decision of the Board appeal FRS preexisting condition for which disability a not Moity based his as hip a He opined that Mr severe Moity firefighter with his hip in its question of causation in his repmi Dr wrote I do not however believe that these changes in the hip are solely the result of his activities as a fire fighter I believe that the hip fracture most likely began this degenerative process and in the course of his duties as a fire fighter and placing more stress across the hip joint in that position that ultimately resulted in the joint that he now has I do not believe based on the patient s history that he was disabled before he joined the fire fighting system but certainly had pre existing trauma that was aggravated during the course of his emploYment which subsequently has lead sic to his disabled condition at this time On January 13 2005 the Board considered Mr reports of Drs Ferachi and Broussard uphold its were presented previous decision and denied benefits 5 Moity s appeal and the The Board voted upon finding that to Mr Moity degenerative hip condition s accident In so was caused by the doing the Board observed that it was opinions of the State Medical Disability Board doctors Mr Moity that it was claim for On a of its decision disability retirement was a 7 2005 Mr capricious and The Board notified the Board was manifestly petition disability retirement ruling s filed this was erroneous for judicial review benefits unreasonable to during his years arbitrary and case The Disability Board doctors firefighter disabled his hip as a The district under the facts of the acknowledged the prior hip injury but found that the trauma exposed the to January 14 2005 stating therein stressed that both of the State Medical court adhering preexisting condition Moity denial of his claim for held that court letter dated employment determined that the medical condition for which he based his February of the FRS by pre Mr The Moity was court also stressed that the fracture for which the Board denied benefits occurred 27 years prior healed to Mr and that Mr Moreover his as a s current in physical demands on court fireman pre employment physical denying benefits Mr in his Moity the Board job or his failed to exemplary The district court ordered the Board to pay Mr Moity job related disability benefits This appeal appeal urging that taken by even preexisting condition he is La R S I disabling condition that the fracture had Moity easily passed his observed the consider the service Moity FRS followed if the Board 1 Mr Moity answered the correctly found that he had still entitled to retirement benefits pursuant a to 11 2258 B The fIrst judgment signed by the district court did not contain appropriate decretal language concerning Moity s claim In response to a show cause order issued by this court an amended judgment was signed by the district court that rendered judgment in favor ofMr Moity and against FRS ordering FRS to pay Mr Moity his job related disability benefIts Thereafter this court maintained the appeal Mr 6 DISCUSSION At the outset the review Mr parties debate the appropriate standard of judicial governing the Board Moity urges determination of Mr s that the its own no deference determination 49 964 0 6 by adjudication a case s ruling and was to status which the district authorized preponderance of the evidence of the that as Board which limits is defined in the LAPA term unreasonable arbitrary a there ruling because s traditional standard of review accorded this disability make to RS La FRS contends that the LAP A does not govern the scope of review judicial applies pursuant the Board to s judicial review provision of the Louisiana Administrative Procedure Act LAP A court owed Moity comi to and been has FRS submits that the administrative decisions to no applies in determining whether the agency action was capricious or whether it amounted to an abuse of discretion We agree with FRS LAP A only when there is proceeding an Judicial review is available under the position s a final decision La R S 49 964 A A disposition for or an an be made held 1980 agency in any statute to Delta Bank Thus unless an decision or matter other than on adjudication an adjudication La order is defined in the LAPA as as RS the final rulemaking required the record after notice and La R S 49 951 3 hearing an or Trust some for the purpose of the LAP A adjudication proceeding that results in by constitution a be determined agency It is well settled that means order or of any agency by constitution opportunity decision order in The LAP A defines agency process for the formulation of 49 951 1 or statute or disposition that is required after notice is Company statute a v given and Lassiter 383 So 2d 330 the constitution 7 a requires a to hearing is 333 hearing La an n8 agency action is not adjudication for the an Metro Riverboat Associates 2001 0185 9 p 7 n 0224 p 5 La State v There has been to Moreover applicant 01 a 797 So 2d 656 662 Board so Therefore as to administrative in the performance of whether the agency or Bank s capricious Trust Firefighters 6 21 02 we find that there proceedings is presumed 335 at action or Company 822 So 2d 98 99 entitled was to conducted right of s judicial review judicial review Delta Bank exist 383 s to So 2d at to finding a an Trust 335 determination of See also 2 p 1 n Board of Trustees was we La R S in Gibson App error LAPA v 1 Cir under this applied nevertheless find that arbitrary in finding that under La Delta disability detennination by the the proper standard of review disability retirement agencies abuse of power pretermitting whether the unreasonable and a of be deemed to have been unreasonable can l n the adjudication by the LAP A System 2001 1585 lesser standard of review and Employing or disability retirement s was no to in fact The scope of review of administrative Firefighters Retirement System the Board Moity whether it amounted Retirement 98 constitutionally was discretionary duty is restricted a Government 7 hearing for the benefit of a disability retirement trigger the applicability of Company 383 S02d arbitrary Board is However it is well settled that the provision Control Board 720 So 2d 53 56 adjudication proceeding no n Id Division of Administration before the Board in connection with Mr application Gaming Louisiana showing that the no hold v through 1 Cir 9 25 98 App statutorily required 16 10 La Inc Computer Sales Inc purpose of the LAP A Mr 11 215 Moity is and La not R S 11 2258 B Louisiana Revised Statutes 11 215 A provides A member who becomes disabled and who files for as follows disability benefits while in service and who upon medical examination and certification as provided for elsewhere in this Subpmi is to be totally disabled solely as the result of injuries sustained in the performance of his official duties or for any cause provided the member has at least five years of creditable service and provided that the disability was incurred while the member was an active contributing member in active service shall be entitled to disability benefits under the provisions of R S ll 2258 B Emphasis added found Louisiana Revised Statutes 11 2258 B 1 provide for the following d c disability retirements c Any member who is totally disabled from an injury received in the line of duty even though the member may have less than five years of creditable service shall be paid on a monthly basis an annual pension of sixty percent compensation being received d at of the average final the time of disability Any member of the system who has become disabled or incapacitated because of a continued illness or as a result of any injury received even though not in the line of duty and who has five years of creditable service but is not eligible for retirement under the provision of R S 11 2256 may apply for retirement under the retired 011 of this Section and shall be provision seventy five percent of the retirement salary he would be entitled under R S thereunder five 11 2256 if he twenty percent salary whichever is greater Read in or conjunction connected these provisions 1 disability retirements an forth in the 11 215 and La R S employee s and benefit for disabilities because of 2 result of a an La R S injury received outside provided that the disability member in contributing 11 2258 B I was active two in the line of disability resulting solely from injuries sustained official duties were of the member set a to s d 9 average types of servlce duty benefit for a performance of the 11 2258 B 1 c or as a despite the cause thereof incurred while the member La eligible continued illness the line of duty service which R S 11 215 was an and La active RS In Guillory 1 Cir App retirement duty writ denied 2 result of his employment result of the as a who sustained as one disabled court aggravated was as a result of se110us heart disease In La 1981 case involving retirement because the percentage of salary a an a state was this to as a disability a or as one who patily as a a continued illness a forth the following injury an partly many years work constituted disability constitutes whose The court held that period of court set which whether police officer entitled a continued a injury in the line of duty over a reaching this conclusion the of at on many years continued illness one s a resulted from period of police officer of determine whether or whether over a aggravated performance duty was La distinguished between in the line of disability a in the line of was heart condition was and As in the present At issue before this retirement 1260 So 2d 402 So 2d 161 police officer retired differed considerably depending disability illness 404 issue the court retirement disability disabled the at provisions continued illness a State Police Retirement Board v or test to continued a illness There must be a off point however cut at which an injury is so insubstantially slowly or imperceptibly received or sustained as a result of the employment that it is not an injury in and of An aggravation of a itself but a continued illness preexisting condition in cases of more precipitous development of the illness falls under RS La 40 1428 B injury and in cases in which the development gradual and less directly related to employment or at all falls under La RS B 40 1428 3 as 2 as was not an more related continued a illness Guillory 402 So 2d at 163 Considering the facts of this III finding that 2 Mr opposed to a Moity non job s Mr case Moity is entitled estimated benefit amount for related the district court a job to disability service connected related disability maximum of 993 02 and minimum of 718 94 10 clearly was correct is 1 45 725 as retirement benefits Two physicians when questioned by the issue of causation certified that Mr hip resulted in pmi because of the the preexisting employment which date his 11 216 to Moity s deny Mr occurred we case benefit stated that Mr to to clarify Moity s was caused no period by disabling Moreover his court specific facts and as a disability retirement under correctly ordered did need to not 11 2258 B remand the was an FRS to pay determine the type of The district 1 c case to court one or d merely could be the district court to of the causes of Mr old fracture that did not occur in the disabling hip condition developed gradually preexisting degenerative a continued illness under La R S ll 2258 B 11 process Moity s find that Mr Moity s for which he is entitled to a job we 1 d led over Mr Under these circumstances degenerative hip disease is La Because Mr actively employed the old fracture and the demands of his disability retirement present disabled job related disability benefits to The combination of the condition of his course erroneously applied was Moity is entitled entitled disabling hip condition l4 year the on the Board s the and that 11 2258 B which Mr We find the disabled condition did s the judgment The evidence established that line of duty a Moity firefighter over Moity Mr service connected a however benefits under either La R S job related as a aggravated agree that the district court Moity job the time he Moity disability benefits the district disability of his to on advanced osteoarthritis of his Therefore based during 11 215 and La R S Although s Moity disability retirement benefits firefighter he is entitled Mr was subsequently led presented in this disability La R S hip employment medical evidence RS rigors Dr Broussard attested that Mr condition not pre his trauma to Moity Board to Accordingly FRS is ordered this to pay Mr Moity disability retirement benefits in accordance with provision CONCLUSION F or the order FRS 11 215 affirmed foregoing to pay and La Mr RS reasons appealed from is amended to Moity disability retirement benefits under 1l 2258 B All costs of this appellant Firefighters the judgment appeal Retirement l d As amended in the amount of 455 84 System AMENDED AND AS AMENDED AFFIRMED 12 the La R S judgment is are assessed to

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