Reisner v. Board of Trustees of the Fire Retirement System , 203 N.W.2d 812 ( 1973 )

LeGRAND, Justice.

This appeal asks us to decide if plaintiff shall have a disability retirement from the Dubuque Fire Department under section 411.6(5), The Code, 1966, or only a service retirement under section 411.6(2). This, in turn, depends on whether he is physically incapacitated from performing the duties of a fireman. The matter is important because the benefits received for disability retirement are substantially greater than those for service retirement.

The Board of Trustees of the Fire Retirement System (hereafter called the board) denied plaintiff’s application for disability retirement. It allowed him a service retirement, for which he qualified under section 411.6(1), The Code, 1966, by reason of having attained the age of 55 and having served more than 22 years on the department.

Plaintiff brought certiorari in the district court to test the legality of the board’s decision. The district court affirmed the action of the board, and plaintiff has appealed to us for relief. We affirm the trial court.

I. The facts in the. present case are brief. Plaintiff joined the Dubuque Fire Department on October 10, 1943, and served until March 1, 1969. At that time he retired, as we have already pointed out he was entitled to do. However, he seeks the greater benefits awarded those who retire because of physical inability to any longer perform the duties of their jobs. Plaintiff says he suffers from emphysema which renders him totally and permanently incapacitated for duty as a fireman.

When plaintiff’s application for disability retirement was filed, the board referred him to the medical board for examination as provided in sections 411.5(9) and 411.-6(5). He was examined by two members of the medical board. Both doctors gave plaintiff a full and complete medical examination, submitted written reports to the board, and stated conclusions concerning plaintiff’s ability to carry on the duties of a fireman. Each stated unequivocally plaintiff was not incapacitated by reason of his emphysema.

Relying on these reports, the board denied the application. Thereafter plaintiff asked that the matter be reconsidered and submitted affidavits from his own physician and from two retired firemen, as well as his own, to support his claim of disability. Upon reconsideration the board affirmed its previous decision.

Plaintiff then brought this certiorari action. The matter was submitted to the district court on the record made before the board, and the district court affirmed the action of the board.

Section 411.5(1), The Code, 1966, establishes a board of fire trustees to administer the statutory retirement system for municipal firemen. Section 411.5(9) provides for a medical board of three physicians who shall “arrange for and pass upon all medical examinations required under the provisions of this chapter and shall report in writing [to the board of trustees] * * * its conclusions and recommendations upon all matters duly referred to it.”

We have held the board exercises quasi judicial powers in discharging this part of its statutory duties. The action of the board is properly attacked by certiora-ri. Staads v. Board of Trustees of Fireman’s Retirement Pension Fund, 159 N.W. 2d 485, 489 (Iowa 1968) ; Butler v. Pension Board of Police Department, 259 Iowa 1028, 1035, 147 N.W.2d 27, 30 (1966).

Certiorari is an ordinary proceeding triable as a law action. On appeal questions of fact decided by the board are not usually reviewable. We consider only whether the decision is supported by any substantial competent evidence, and the burden of showing illegality rests upon him who asserts it. The fact that others may have reached a different conclusion or that an opposite result would have been fully justified by the evidence is of no importance. Rule 306, Rules of Civil Procedure; rule 317, R.C.P.; Staads v. Board of Trustees of Fireman’s Retirement Pension Fund, supra, 159 N.W.2d at pages 489, 490 and citations; Butler v. Pension Board of Police Department, supra, 259 Iowa at page 1035, 147 N.W.2d at page 30, 31 and citations.

II. Plaintiff must establish two facts to qualify for a disability retirement under section 411.6(5). First, he must show he suffers from injury or disease “incurred in or aggravated by the actual performance of duty at some definite time and place”; and, second, he must be totally and permanently incapacitated for duty as the natural and proximate result of such injury or disease.

As to the first requirement, plaintiff is helped by this portion of section 411.6(5) :

“Disease under this section shall mean heart disease or any disease of the lungs or respiratory tract and shall be presumed to have been contracted while on active duty as a result of strain or the inhalation of noxious fumes, poison or gases.”

Plaintiff quite correctly argues emphysema is a disease within the scope of this statutory definition. Plaintiff’s doctor describes it this way:

“Emphysema is a disease of the lungs of a degenerative and permanent nature for which there is no curative treatment. The condition of emphysema causes the patient’s lungs to lose normal elasticity, and therefore, the lungs do not collapse properly in the respiratory process. As a result, one suffering from emphysema, such as Mr Reisner, is not able to expel and displace the air in his lungs as well as one not inflicted with the disease.”

We agree with plaintiff, too, that the statute waives the necessity for proving the disease, once shown to exist, was incurred in or aggravated by the actual performance of duty at some definite time and place, as is required in case the disability results from injury rather than disease. The law presumes this to be so. Butler v. Pension Board of Police Department, supra, 259 Iowa at 1034, 147 N.W.2d at 30.

Taking as established the first necessary fact, we next consider whether plaintiff has established he is totally and permanently incapacitated for duty as the natural and proximate result of the emphysema from which he suffers.

It is here we must again remind ourselves we do not pass on the credibility of witnesses nor the preponderance of the evidence. We decide only if there is substantial competent evidence to support the finding the board made.

The evidence before the board was in direct conflict. The two medical board doctors expressed categorical opinions plaintiff was not incapacitated. Plaintiff and his three supporting witnesses (one of whom was a physician) were just as positive in stating he was. All this, testimony was submitted in written form and stands unchallenged except as one theory disputes the other. To put it differently, there was no cross-examination to discredit or weaken any of the opinions expressed.

We reach the inescapable conclusion there was substantial evidence to support either result the board may have reached. Plaintiff argues all emphysema is disabling; but this claim must fail in the face of testimony by two physicians (who had the statutory duty to examine plaintiff and report on his condition) that plaintiff’s “minimal” or “moderate” emphysema does not incapacitate him from performing his duties. Even if we concede, arguendo, there is both more and better evidence to the contrary, the result must stand under the rules already referred to.

Plaintiff insists the Butler case is squarely in point and dictates a decision in his favor, but we cannot agree. Butler simply held the board had incorrectly applied section 411.6(5), The Code, to uncon-troverted facts. This was pointed out in distinguishing Staads v. Board of Trustees of Fireman’s Pension Fund from the Butler case (159 N.W.2d at page 491). The distinction is equally applicable here, since it cannot be seriously argued the evidence of Drs. McKay and Hazlet does not provide substantial support for the board’s decision.

We believe our opinions in the Butler and Staads cases settle the questions raised by this appeal and require us to affirm the trial court.

III. Perhaps we should comment on the trial court’s statement that the recommendations of the medical board are conclusive and binding on the board under section 411.6(5). We do not agree. The obligation to pass on applications for disability retirement is lodged in the board of trustees, not the medical board. Section 411.5(9) establishes the medical board and directs it to make examinations and recommendations. We believe this is the true extent of the medical board’s authority. Any other interpretation is contrary to the obvious intent of the legislature as expressed in section 411.5(1), vesting general administration over the retirement system and responsibility for its proper operation in the board of trustees. In interpreting this chapter, we must look to all its provisions and to the purpose to be accomplished. Wilson v. Iowa City, 165 N.W.2d 813, 822 (Iowa 1969) and citations. Cf. In

the Estate of DeVries, Iowa, 203 N.W.2d 308, filed December 20, 1972. Viewed in this manner we find no real conflict between sections 411.5(9) and 411.6(5).

We have already implicitly reached this conclusion in the Butler case, where recommendations of the medical board did not prevail, although the matter urged here was not argued there. To the extent the trial court felt the board of trustees was bound we hold it was in error.

However, there is nothing in the record to suggest the board of trustees reached its decision by applying this incorrect rule of law. It reviewed evidence both for and against plaintiff’s claim on his request to reconsider the matter and thereafter rejected the application for disability retirement.

We hold there was substantial eviden-tiary basis for this conclusion, and we therefore affirm the judgment.

Affirmed.

All Justices concur, except Mc-CORMICK, REYNOLDSON, and HARRIS, JJ., who dissent.