Opinion
No. 81-383
Decided July 2, 1982
1. Certiorari — Other Remedies — Availability A writ of certiorari is the sole remedy available to a party aggrieved by a decision of the New Hampshire retirement system board of trustees because the chapter governing the New Hampshire retirement system does not provide for judicial review. RSA ch. 100-A.
2. Certiorari — Issuance of Writ — Discretion of Court In considering a petition for a writ of certiorari brought by a permanent employee of city fire department after the New Hampshire retirement system board of trustees denied his request for disability benefits, the trial court was not compelled to grant the writ of certiorari unless it found that the board of trustees acted illegally in respect to jurisdiction, authority, or observance of the law, or abused its discretion or acted arbitrarily or capriciously.
3. Administrative Law — Judicial Review — Standards It is not the supreme court's function to make findings de novo or to substitute its judgment for that of the board of trustees of the state retirement system.
4. Public Employees — Retirement — Retirement Board Supreme court must uphold decision of board of trustees of state retirement system if it could reasonably have decided as it did.
5. Public Employees — Retirement — Retirement Board In the case of claimant, a permanent employee of city fire department, denied a disability retirement allowance by the board of trustees of the state retirement system, where the claimant alleged that his lungs had been permanently damaged by the heavy smoke encountered when he extinguished a car fire, and where the board at its hearing received conflicting evidence regarding both the cause and extent of the plaintiff's injury in that one physician testified that smoke from the car fire permanently injured the claimant's lungs and that the resulting injury physically incapacitated him, and another physician concluded that the fire should not have caused serious damage to the claimant's respiratory system nor to his general health, the board's conclusion, that the claimant had failed to prove either that he was physically incapacitated or that his condition was the natural and proximate result of the fire, was not so lacking in reason as to be arbitrary, unreasonable, or capricious, or to constitute an abuse of discretion.
6. Public Employees — Retirement — Retirement Board Where two physicians testified at a hearing before the board of trustees of state retirement system on question of claimant's request for disability benefits, and one physician concluded that fire should not have caused serious damage to claimant's respiratory system and another physician testified that the incident caused permanent injury so as to incapacitate the claimant, the board did not err in adopting the view propounded by one expert and rejecting the opinion of another.
7. Appeal and Error — Scope of Review — Questions It is the fact-finder's function to evaluate the evidence.
8. Appeal and Error — Findings — Failure To Request Absent a request under the statute governing findings in superior court, there is no authority requiring a court to issue a written opinion when neither party requests findings of fact or rulings of law. RSA 491:15.
9. Public Employees — Retirement — Presumptions The chapter governing the New Hampshire retirement system contains no discussion of a presumption that heart and lung disease in a firefighter is occupationally related, and the chapter does not refer to the statutory provision setting forth that presumption in workmen's compensation cases; therefore, the supreme court rejects the claim that such a presumption is applicable in the context of a dispute involving retirement disability benefits. RSA ch. 100-A; 281:2.
10. Public Employees — Retirement — Denial of Benefits In the case of city firefighter's claim for retirement disability benefits, where the board of trustees of the state retirement system granted benefits to the firefighter in July 1978 for the injury which was claimed to have occurred on November 22, 1977, and where the board rescinded the benefits in September 1978, notified the claimant in October of that year, twice denied him benefits again after his petition for rehearing in January 1979 and a new hearing in May 1980, with a final denial of a motion for rehearing in August 1980, although the administrative process extended for almost three years, the supreme court could discern no bad faith on the part of the board and did not find that the board acted improperly or created unnecessary delay.
Ouellette, Hallisey Dibble P.A., of Dover (William L. Tanguay on the brief and orally), for the plaintiff.
Gregory H. Smith, attorney general (James E. Townsend, assistant attorney general, on the brief and orally), for the State.
Scott E. Woodman, of Dover, by brief for the City of Dover.
In this case, the New Hampshire Retirement System Board of Trustees denied the plaintiff's request for disability benefits, and the Superior Court (Goode, J.) subsequently declined to issue a writ of certiorari. The issue before us is whether the court erred in denying the writ. We affirm.
On November 22, 1977, the plaintiff, a permanent employee of the Dover fire department, extinguished a car fire. Claiming that his lungs were permanently damaged by the heavy smoke, he sought retirement with a disability retirement allowance under RSA 100-A:6 I(c) (d). In July 1978, the New Hampshire Retirement System Board of Trustees (the board) voted to grant disability retirement benefits to the plaintiff, but in September 1978 it reconsidered its decision and rescinded the benefits. The plaintiff was notified of the board's decision to rescind in October 1978 and petitioned for rehearing in January 1979. The board again denied him benefits.
The plaintiff persisted and was granted a new hearing in May 1980. Nevertheless, on July 23, 1980, the board again denied the plaintiff's claim because he had failed to prove that the November 1977 fire had damaged his lungs or rendered him physically incapacitated. After his August 5, 1980, motion for rehearing was denied, the plaintiff petitioned the superior court for a writ of certiorari. The court denied his petition, as well as his subsequent motion for reconsideration and rehearing. The plaintiff appealed to this court.
[1, 2] The sole issue which we must consider is whether the superior court erred in refusing to issue a writ of certiorari. Because RSA ch. 100-A does not provide for judicial review, a writ of certiorari is the sole remedy available to a party aggrieved by a decision of the board of trustees. See Bothwick v. State, 119 N.H. 583, 590, 406 A.2d 462, 467 (1979). The trial court was not compelled to grant a writ of certiorari unless it found that the board of trustees "acted illegally in respect to jurisdiction, authority or observance of the law . . . or has abused its discretion or acted arbitrarily, or capriciously." Melton v. Personnel Comm'n, 119 N.H. 272, 280, 401 A.2d 1060, 1065 (1979) (quoting Slayton v. Personnel Comm'n, 117 N.H. 206, 208, 371 A.2d 1159, 1161 (1977). We conclude that the trial court's refusal to grant a writ of certiorari was reasonable.
The board of trustees may retire an employee on an accidental disability retirement allowance if it finds the employee to be "mentally or physically incapacitated for the further performance of duty and that such incapacity is likely to be permanent." RSA 100-A:6 I(c). The employee's injury must be the natural and proximate result of an accident which occurs during the performance of his duty without willful negligence on his part. Id. The board of trustees received conflicting evidence regarding both the cause and extent of the plaintiff's injury. One physician, Dr. Richard Petrie, believed that smoke from the November 1977 fire permanently injured the plaintiff's lungs and that the resulting injury physically incapacitated him from further performance of his duty. Dr. Peter Barlow, on the other hand, concluded that "the event should not have, in itself, caused serious damage to [the plaintiff's] respiratory system nor to his general health, though it may have caused some symptoms." Based on these and other opinions, the board of trustees concluded that the plaintiff had failed to prove either that he was physically incapacitated or that his condition was the natural and proximate result of the November 1977 fire.
[3-7] The plaintiff contends that the board committed reversible error because it "ignored" and "failed to consider" the opinion of Dr. Petrie. It is not this court's function to make findings de novo or to substitute its judgment for that of the board. See Melton v. Personnel Comm'n, 119 N.H. at 280, 401 A.2d at 1065. Rather, we must uphold the agency's decision if it could reasonably have decided as it did. See F. A. Gray, Inc. v. Demopoulos, 122 N.H. 495, 446 A.2d 860 (1982). We hold that the board's conclusion was not so lacking in reason as to be arbitrary, unreasonable, or capricious, or to constitute an abuse of discretion. See Bothwick v. State, 119 N.H. at 591, 406 A.2d at 467; Melton v. Personnel Comm'n, 119 N.H. at 280, 401 A.2d at 1065. The board did not err in adopting the view propounded by one expert and rejecting the opinion of another. It is the fact-finder's function to evaluate the evidence. See Rowe v. City of Portsmouth, 122 N.H. 146, 148, 441 A.2d 1181, 1183 (1982).
The plaintiff also argues that the trial court abused its discretion because it denied his petition for a writ of certiorari without stating any reasons. Absent a request under RSA 491:15, we are aware of no authority requiring a court to issue a written opinion when neither party requests findings of fact or rulings of law.
We reject the plaintiff's argument that RSA 281:2 V-a, which creates a presumption in workmen's compensation cases that heart and lung disease in a firefighter are occupationally related, is applicable in the context of a dispute involving retirement disability benefits under RSA ch. 100-A. RSA ch. 100-A contains no discussion of such a presumption and does not refer to RSA 281:2 V-a.
Finally, we disagree with the plaintiff that the board acted improperly and created unnecessary delay. Although the administrative process unfortunately extended for almost three years, we discern no bad faith on the part of the board.
In light of the result we have reached, we need not address the defendants' contention that the trial court erred in rejecting their argument that the plaintiff's petition for writ of certiorari was not timely.
Affirmed.
All concurred.