Pardue, Jr. v. Metro Gov't ( 1998 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
FILED
April 15, 1998
LEON PARDUE, JR., )
) Cecil W. Crowson
Plaintiff/Appellant, ) Appellate Court Clerk
) Appeal No.
) 01-A-01-9707-CH-00312
VS. )
) Davidson Chancery
) No. 96-1232-II
THE METROPOLITAN GOVERNMENT )
OF NASHVILLE & DAVIDSON )
COUNTY and the METROPOLITAN )
EMPLOYEE BENEFIT BOARD, )
)
Defendant/Appellee. )
APPEALED FROM THE CHANCERY COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE CAROL L. McCOY, CHANCELLOR
ANN BUNTIN STEINER
STEINER & STEINER
214 Second Avenue North
Suite 203
Nashville, Tennessee 37201-1644
Attorney for Plaintiff/Appellant
JAMES L. MURPHY, III
Director of Law
Department of Law of the Metropolitan
Government of Nashville and Davidson County
CHRISTI E. PEARSON
204 Metropolitan Courthouse
Nashville, Tennessee 37201
Attorney for Defendant/Appellee
AFFIRMED AND REMANDED
BEN H. CANTRELL, JUDGE
CONCUR:
TODD, P.J., M.S.
KOCH, J.
OPINION
In this appeal of the Metropolitan Benefit Board’s denial of a disability
pension, the petitioner asserts that the decision is unsupported by substantial and
material evidence, that the Board should have given more weight to the treating
physician’s testimony, and that the reviewing court should have conducted a de novo
review of the Board’s decision. The Chancery Court of Davidson County conducted
a limited review and dismissed the petition. We affirm.
I.
Leon Pardue, Jr., an employee of the Metropolitan Public W orks
Department, applied for a medical pension in November of 1994. His claim,
supported by the opinion of his treating physician, was that a degenerative joint
disease and chronic pain syndrome rendered him unable to perform his duties as a
loader and driver of a chipper truck. The Metropolitan Benefit Board referred Mr.
Pardue to independent medical and psychological specialists, and the specialists
reported that they could find no objective basis for work restrictions. On August 14,
1995, the Board denied the disability application.
From August of 1995 until February of 1996 the question bounced from
one committee to another, to the Board and back to the committees. The record was
periodically supplemented with other medical evidence, and at one point the pension
committee recommended that the Board reconsider its prior action and grant Mr.
Pardue a pension retroactive to September of 1994. The motion failed in a tie vote
before the Board. On February 26, 1996, the Board voted for a final time and refused,
by a vote of four to three, to reconsider its prior denial.
II.
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On appeal Mr. Pardue argues that the Board’s action should be
reviewed under the Tennessee Administrative Procedures Act, Tenn. Code Ann. § 4-
5-101, et seq. The Board, however, is an agency of the Metropolitan Government of
Nashville and Davidson County, and the Administrative Procedures Act does not
cover “county and municipal boards, commissions, committees, departments or
offices.” See Tenn. Code Ann. § 4-5-106(a). The proper method of reviewing a
decision denying a pension to a civil servant is by the common law writ of certiorari.
Kendrick v. City of Chattanooga, 799 S.W.2d 668 (Tenn. App. 1990); Tenn. Code
Ann. § 27-9-114.
Under the common law writ our review of the evidence is severely
limited. We only examine the record to see if there is any material evidence to
support the Board’s action. Watts v. Civil Service Bd., 606 S.W.2d 274 (Tenn. 1980);
Lansden v. Tucker, 321 S.W.2d 795 at 797 (Tenn. 1959). In this case there is
evidence in the record from which the Board could conclude that Mr. Pardue was not
disabled. More than one examining physician rendered an opinion that Mr. Pardue
could return to work.
III.
In a related argument, Mr. Pardue contends that in weighing the
evidence before it, the Board should have given greater weight to the testimony of his
treating physician. The cases cited for that proposition, however, do not support the
argument. In Crossno v. Publix Shirt Factory, 814 S.W.2d 730 (Tenn. 1991), a
worker’s compensation case decided by a trial judge, the Supreme Court said:
When the medical testimony differs, the trial judge must
obviously choose which view to believe. In doing so, he
is allowed, among other things, to consider the
qualifications of the experts, the circumstances of their
examination, the information available to them, and the
evaluation of the importance of that information by other
experts.
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814 S.W.2d at 731. While the trial judge did give more weight to the treating
physician’s testimony in that case, the rule announced by the Supreme Court
concerns the credibility of the witnesses rather than whether the witness was a
treating or a consulting physician.
The Board’s authority is derived from section 3.28.060 of the
Metropolitan Code. That section provides:
The board shall have the exclusive authority to determine
the disability and continuation of disability of a disabled
member . . . An applicant for a disability pension shall
furnish to the board a “disability report,” as provided in this
section, and such other medical or other information as
may reasonably be required by the board for the purpose
of establishing disability. The board may secure
additional medical or other evidence as it deems
necessary and appropriate. On the basis of the disability
report, medical and other information as the board has
assembled, the board shall thereupon determine whether
or not the applicant is a disabled member. . . .”
This provision does not require the Board to give more weight to any
particular part of the evidence before it. We think that the Board has the power to
make its own decision with respect to the credibility of the witnesses.
IV.
Finally, Mr. Pardue argues that the courts should review the record de
novo under section 12.07(h) of the Metropolitan Charter. That section, applicable only
to a review of a decision by the Civil Service Commission, provides for a de novo
review of a decision dismissing an employee from the service.
In Bush v. Employee Benefit Board, 792 S.W.2d 932 (Tenn. App. 1990),
we held that the Benefit Board of the Metropolitan Government and the Civil Service
Commission are distinct and separate boards exercising discrete functions prescribed
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by the Metropolitan Charter. The charter provisions affecting one board or
commission do not apply to the other. Therefore, the de novo review provisions
affecting the Civil Service Commission do not apply to the Benefit Board.
The judgment of the trial court is affirmed. The cause is remanded to
the Chancery Court of Davidson County for any further proceedings necessary. Tax
the costs on appeal to the appellee.
____________________________
BEN H. CANTRELL, JUDGE
CONCUR:
_______________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION
_____________________________
WILLIAM C. KOCH, JR., JUDGE
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