Friday, September 6, 2013

Flying Solo


Preston v. City of Burlington Retirement System, 2013 VT 56

Score one for the Pro-Ser

Plaintiff worked for the city of Burlington as a firefighter for over a decade.  He filed for and was awarded disability retirement by the City’s Retirement Board due to chronic back pain.  (Those hoses are really heavy.)

A couple years later, the City sent him a questionnaire, which he filled out and returned.  Plaintiff indicated in his cover letter that he was gonna learn to fly.  City then asked him to take a functional capacity medical exam.  Plaintiff wasn’t able to make the first appointment the City set up for him.  He sent a letter, though, noting that he was entitled to five years disability, regardless.  The City kicked it over to its attorney’s office, which terminated Plaintiff’s benefits, but indicated that it would reconsider the decision should Plaintiff submit to a functional capacity examination. 

Scheduling proved problematic, but after the retirement administrator threatened to permanently revoke Plaintiff’s benefits, he was able to schedule an appointment in Texas.  He did not complete a couple of the tests due to fear of injury.  The evaluator discussed this issue with the retirement administrator by phone.  The evaluator also noted that Plaintiff’s concerns were “valid and reasonable” in the notes section.  The evaluator concluded that Plaintiff could not perform the essential duties of a firefighter due to his physical limitations, but that he could pilot a plane.       


Because Plaintiff did not perform the two tests (that he was worried might injure him), the Retirement Board terminated Plaintiff’s benefits, claiming non-cooperation and an inability to determine the true extent of Plaintiff’s disability. 

So Plaintiff appealed to the superior court.  The City filed for summary judgment arguing that it had the “final say” according to it code of ordinances, and thus, the trial court had no jurisdiction, and on the merits, that Plaintiff didn’t cooperate.   Plaintiff prevailed.  The trial court reasoned that it had jurisdiction over the case despite the City’s jurisdictional protestations, and that on the merits, Plaintiff had reasonably cooperated.  Some case law was tossed in for good measure.  The City appealed.   

On review, the SCOV agrees with the trial court.  The SCOV first discusses the traditional bases for judicial review of agency decisions, including certiorari (the trial court’s basis of choice in this case).  The SCOV concludes that this case meets the standards and that the trial court’s exercise of jurisdiction was proper.  The SCOV also rejects the City’s argument that its “final say” language bars judicial review.  “That’d be silly,” the SCOV says, “Because it would effectively limit all access to the courts in this kind of situation and we ain’t about to let that happen.”  (slightly paraphrased).     

The merits are short but sweet for the Plaintiff.  The SCOV agrees with the trial court’s conclusion that Plaintiff reasonably cooperated with the City in completing the assessment.  The SCOV specifically notes the examiner’s conclusion that Plaintiff’s concerns were “valid and reasonable.”


And there you have it.  Plaintiff flies solo—in the courts—and prevails.  Clear skies, to you, sir.

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