State ex rel. Richard v. Bd. of Trustees of Police & Firemen's Disability & Pension Fund - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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The State ex rel. Richard, Appellee, v. Board of Trustees of
the Police and Firemen's Disability and Pension Fund, Appellant.
[Cite as State ex rel. Richard v. Bd. of Trustees of Police &
Firemen's Disability & Pension Fund (1994), Ohio
St.3d .]
Police and Firemen's Disability and Pension Fund -- Benefit and
pension payments -- R.C. 742.37(C)(8) precludes a retiree
who is already receiving maximum partial disability
benefits pursuant to R.C. 742.37(C)(3) from applying for
permanent total disability benefits under R.C.
742.37(C)(2).
(No. 93-2121 -- Submitted April 5, 1994 -- Decided June 8,
1994.)
Appeal from the Court of Appeals for Franklin County, No.
92AP-1722.
The Board of Trustees of the Police and Firemen's
Disability and Pension Fund, respondent-appellant, appeals from
a judgment by the Franklin County Court of Appeals granting
John E. Richard, relator-appellee, a writ of mandamus to compel
the board to consider his post-retirement application for
increased disability benefits.
Appellee was employed by the Springfield, Ohio Police
Department from 1961 until 1983. Appellee suffered injuries in
the course of his employment as a police officer and stopped
working on October 21, 1983. In November 1983, appellee
applied for permanent total disability benefits from
appellant. On February 1, 1984, appellant granted appellee
maximum partial disability retirement benefits which
represented approximately sixty-two percent of the average of
his three years of highest earnings. Appellant's letter
notifying appellee of the grant further advised him that if his
disability deteriorated and rendered him unfit for gainful
employment in any occupation for which he was reasonably
suited, he could request that appellant change the grant from
partial to total disability. Appellee has continued to receive
maximum partial disability benefits from appellant.
In May 1992, appellee submitted to appellant a
post-retirement disability application to change his maximum

partial disability benefits to permanent total disability
benefits. On June 25, 1992, appellant notified appellee that
it would take no action on his application "because the law in
effect at the time the application was submitted does not
permit changing a maximum partial grant to a total disability
grant." After appellee requested a review of appellant's
decision, appellant reiterated on July 29, 1992 that it would
not take any action.
Appellee then brought this mandamus action to compel
appellant to consider the merits of his post-retirement
disability application. The court of appeals granted
appellee's requested mandamus relief.
This cause is now before this court upon an appeal as of
right.

David M. Hollingsworth, for appellee.
Lee Fisher, Attorney General, and Doug S. Musick,
Assistant Attorney General, for appellant.

Per Curiam. Appellant asserts in its sole proposition of
law that the court of appeals erred in granting appellee a writ
of mandamus since, pursuant to amended R.C. 742.37(C)(8), a
member receiving maximum partial disability benefits under R.C.
742.37(C)(3) is not eligible for permanent total disability
benefits under R.C. 742.37(C)(2). In order for a writ of
mandamus to issue, a relator must demonstrate that (1) he or
she has a clear legal right to the relief prayed for, (2)
respondent is under a corresponding legal duty to perform the
requested act, and (3) relator has no plain and adequate remedy
in the ordinary course of law. State ex rel. Glass, Molders,
Pottery, Plastics & Allied Workers Internatl. Union, Local 333,
AFL-CIO, CLC v. State Emp. Relations Bd. (1993), 66 Ohio St.3d
157, 158, 609 N.E.2d 1266, 1267.
A member of the Police and Firemen's Disability Pension
Fund who is partially disabled as the result of performing
official duties may receive benefits if the disability prevents
him from performing those duties and impairs his earning
capacity. R.C. 742.37(C)(3). The board may increase or
decrease such benefits whenever the impairment of the member's
earning capacity warrants a change, but if the member has
completed less than twenty-five years of active service in the
department, the benefits paid shall not exceed sixty percent of
his average salary. Id. Conversely, a member of the fund who
is permanently and totally disabled as a result of the
performance of official duties is entitled to benefits equal to
seventy-two percent of his annual salary for the last year he
was in active service. R.C. 742.37(C)(2).
Prior to July 24, 1986, i.e. at the time appellee was
granted maximum partial disability benefits, appellant had a
clear legal duty pursuant to former R.C. 742.37(C) to consider
applications by fund members receiving partial disability
benefits seeking permanent total disability benefits based upon
a deterioration of their conditions. State ex rel. Manders v.
Bd. of Trustees of Police & Firemen's Disability & Pension Fund
(1981), 68 Ohio St.2d 79, 22 O.O.3d 275, 428 N.E.2d 151; see,
also, Dumas v. Bd. of Trustees of Police & Firemen's Disability
& Pension Fund (1986), 25 Ohio St.3d 10, 25 OBR 8, 494 N.E.2d

1129.
On July 24, 1986, in apparent response to this court's
decision in Manders, the General Assembly amended R.C.
742.37(C) to add the following language:
"With the exception of those persons receiving partial
disability benefits under division (C)(3) of this section who
may make application for increased benefits as provided in such
division, no person receiving a pension or other benefit under
division (C) of this section on or after the effective date of
this amendment shall be entitled to apply for any new, changed,
or different benefit." 141 Ohio Laws, Part III, 5583, amending
R.C. 742.37(C)(9).
The current version of R.C. 742.37(C)(8), in effect at the
time of appellee's application for permanent total disability
benefits, similarly provides:
"With the exception of those persons who may make
application for increased benefits as provided in division
(C)(3) or (5) of this section or those persons who may make
application for benefits as provided in section 742.26 of the
Revised Code, no person receiving a pension or other benefit
under division (C) of this section on or after July 24, 1986,
shall be entitled to apply for any new, changed, or different
benefit."
The court of appeals determined that R.C. 742.37(C)(8)
"clearly excepts partial disability benefit recipients under
R.C. 742.37(C)(3) from its general prohibition against
application for any new, changed or different benefit" and that
the "1986 legislative enactment clearly intended to continue to
allow partial disability benefit recipients to upgrade their
benefits if and when their medical condition worsened."
Appellant asserts that the court's rationale was erroneous. We
agree.
In construing a statute, a court's paramount concern is
the legislative intent in enacting the statute. State v. S.R.
(1992), 63 Ohio St.3d 590, 594, 589 N.E.2d 1319, 1323. "In
determining legislative intent, the court first looks to the
language in the statute and the purpose to be accomplished."
Id. at 594-595, 589 N.E.2d at 1323. Words used in a statute
must be taken in their usual, normal or customary meaning.
R.C. 1.42; Indep. Ins. Agents of Ohio, Inc. v. Fabe (1992), 63
Ohio St.3d 310, 314, 587 N.E.2d 814, 817. It is the duty of
the court to give effect to the words used and not to insert
words not used. S.R., supra, 63 Ohio St.3d at 595, 589 N.E.2d
at 1323. "Where the language of a statute is plain and
unambiguous and conveys a clear and definite meaning, there is
no need to apply rules of statutory interpretation." Cline v.
Ohio Bur. of Motor Vehicles (1991), 61 Ohio St.3d 93, 96, 573
N.E.2d 77, 80.
R.C. 742.37(C)(8) provides that R.C. 742.37(C)(3) partial
disability benefit recipients may apply for "increased
benefits" only "as provided in division (C)(3) or (5)." R.C.
742.37(C)(5) does not apply to appellee. R.C. 742.37(C)(3)
allows for an increase in benefits for members with appellee's
years of active service in an amount not to exceed sixty
percent of his average annual salary. Since appellee is
already receiving maximum partial disability benefits, the
plain language of R.C. 742.37(C)(8) precludes his application

for permanent total disability benefits. Consequently, the
court of appeals erred in holding otherwise. This
interpretation comports with Ohio Adm. Code 742-3-05(C)(1),
amended shortly after the 1986 amendment to R.C. 742.37(C),
which provides that "[a] member who is receiving a less than
maximum partial or off-duty disability and who believes that
deterioration of the disabling physical or mental condition has
increased the amount of disability, may apply for a
reconsideration. ***" (Emphasis added.) See, also, Ohio Adm.
Code 742-3-05(D).
Appellee claims that several troublesome issues raised
before but never reached by the court of appeals would arise if
we adopt appellant's interpretation of R.C. 742.37(C).
Appellee first contends that R.C. 742.37(C)(8), so construed,
would be an unconstitutionally retroactive law because it
impairs his "vested right" to "apply for an increase in
disability from partial to total." The court of appeals relied
upon its erroneous interpretation of R.C. 742.37(C)(8) to hold
that appellee possessed a "vested right to apply for a change
in benefits from partial disability to permanent total
disability, which right may be exercised regardless of whether
his initial award was for maximum partial disability or some
lesser percentage." (Emphasis sic.)
Section 28, Article II of the Ohio Constitution provides
that the "general assembly shall have no power to pass
retroactive laws * * *." Every statute which takes away or
impairs vested rights acquired under existing laws, or creates
a new obligation, imposes a new duty, or attaches a new
disability, with respect to transactions or considerations
already past, is retroactive. State ex rel. Matz v. Brown
(1988), 37 Ohio St.3d 279, 281, 525 N.E.2d 805, 807, citing
Soc. for the Propagation of the Gospel v. Wheeler (N.H.1814), 2
Gall. 105, 139. As to appellee's claim that he had a vested
right to apply for permanent total disability benefits, R.C.
742.46 provides:
"The granting of a benefit or pension to any person under
sections 742.01 to 742.49, inclusive, of the Revised Code,
vests a right in such person to obtain and receive the amount
of such benefit or pension granted to him subject to sections
742.01 to 742.49, inclusive, of the Revised Code.***"
(Emphasis added.)
Pursuant to R.C. 742.46, the granting of partial
disability benefits to appellee vested his right only to those
benefits and not to a possible future increase. Additionally,
his vested right to even partial disability benefits is subject
to R.C. 742.37(C)(8)'s prohibition against future applications
for permanent total disability benefits. Rights to a benefit
or pension granted by R.C. 742.46 are vested only for those
beneficiaries who are not subject to other provisions of R.C.
Chapter 742. State ex rel. Brunson v. Bedner (1971), 28 Ohio
App.2d 63, 57 O.O.2d 124, 274 N.E.2d 565. Therefore, appellee
had no vested right to a change in benefits from partial
disability to permanent disability. Consequently, the 1986
amendment to R.C. 742.37(C) did not retroactively impair any
vested right.
Although appellee's contentions on appeal in this regard
are limited to his assertion that he had a vested interest in a

future application for permanent disability benefits, his lack
of a vested right does not end the inquiry concerning the
alleged retroactive nature of R.C. 742.37(C)(8). The
definition of a retroactive statute set forth in Matz
encompasses either impairing of a vested right or creating a
new disability with respect to past transactions or
considerations. State ex rel. Matz, supra, 37 Ohio St.3d at
281, 525 N.E.2d at 807. A subsequent enactment will not burden
a past transaction or consideration in the constitutional
sense, unless the past transaction or consideration created, if
not a vested right, at least a reasonable expectation of
finality. Id. at 281, 525 N.E.2d at 807-808. Maximum partial
disability beneficiaries such as appellee have no reasonable
expectation that their right to apply for different benefits
would never be terminated by subsequent changes in the
applicable law. To hold otherwise would mean that the General
Assembly would never be able to limit some benefits in order to
retain the solvency of financially strapped disability or
retirement funds. Thus, R.C. 742.37(C)(8) is not
unconstitutionally retroactive.
All legislative enactments must be afforded a strong
presumption of constitutionality, and the party asserting that
a statute is unconstitutional must prove this assertion beyond
a reasonable doubt. State v. Collier (1991), 62 Ohio St.3d
267, 269, 581 N.E.2d 552, 553. Appellee failed to meet that
burden here.
Appellee finally asserts that appellant's 1984 letter
granting him maximum partial disability benefits also gave him
the right to have appellant consider any future application for
permanent total disability benefits. However, the language
referred to by appellee correctly set forth the law as it
applied to him prior to the 1986 amendment to R.C. 742.37(C).
As noted previously, this did not confer any vested right upon
appellee pursuant to R.C. 742.46. Moreover, there is no
equitable estoppel against appellant since that doctrine
generally requires actual or constructive fraud, see, e.g.,
Ohio State Bd. of Pharmacy v. Frantz (1990), 51 Ohio St.3d
143, 145, 555 N.E.2d 630, 633, and appellant did not
misrepresent the law or mislead appellee concerning his
rights. In other words, appellant did not advise appellee that
there would never be a modification in the law that might
affect his right to future benefits.
In sum, the manifest language of R.C. 742.37(C)(8)
precludes a retiree who is already receiving maximum partial
disability benefits pursuant to R.C. 742.37(C)(3) from applying
for permanent total disability benefits under R.C.
742.37(C)(2). The court of appeals thus erred in granting
appellee's request for a writ of mandamus.
Accordingly, the judgment of the court of appeals is
reversed.
Judgment reversed.
Moyer, C.J., A.W. Sweeney, Douglas, Wright, Resnick and
F.E. Sweeney, JJ., concur.
Pfeifer, J., dissents.