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Preston v. Burlington City Retirement System

Supreme Court of Vermont

July 12, 2013

John L. Preston, Jr.
Burlington City Retirement System

On Appeal from Superior Court, Chittenden Unit, Civil Division Geoffrey W. Crawford, J.

John L. Preston, Jr., Pro Se, Greensboro, North Carolina, Plaintiff-Appellee.

Colin K. McNeil of McNeil, Leddy & Sheahan, P.C., Burlington, for Defendant-Appellant.

PRESENT: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.


¶ 1. Defendant City of Burlington Retirement System appeals from a superior court judgment reversing the City’s decision to terminate the disability retirement of plaintiff, a former City firefighter. The City contends: (1) the trial court lacked subject matter jurisdiction; and (2) its decision to terminate the benefit was reasonable and proper. We affirm.

¶ 2. The facts may be summarized as follows. Plaintiff was employed by the City as a firefighter from 1992 to 2005. In February 2007, the City’s Retirement Board, which administers the City’s employee retirement system, approved plaintiff’s application for disability retirement, awarding plaintiff a monthly pension of $2964.84 effective December 10, 2006.

¶ 3. Two years later, in February 2009, the Board’s retirement administrator wrote to plaintiff requesting that he return a questionnaire designed to evaluate his current disability status. The letter cited the City’s retirement ordinance, which provides that the Board may require any employee on disability retirement who has not attained the normal retirement age for members of his or her class to provide additional information and “undergo a medical examination.” Burlington Code of Ordinances § 24-23(d). [1] Shortly thereafter, plaintiff returned the completed questionnaire, indicating that his activities remained subject to the same physical restrictions that had resulted in his disability retirement. He also sent a cover letter explaining that he was currently training to become an airline pilot, which he characterized as a position posing “low physical demands required under the medical restrictions that I have.”

¶ 4. A few weeks later, the retirement administrator sent a second letter to plaintiff explaining that the Board had reviewed his questionnaire and voted to require that he submit to a further medical evaluation. Although the administrator offered to locate a medical facility near plaintiff’s residence in Florida, plaintiff indicated that he wished to be examined in Vermont. The administrator, in response, wrote to plaintiff in late April 2009 explaining that she had arranged for him to have a “Functional Capacity Examination” in Colchester, Vermont in late June at the City’s expense.

¶ 5. In late May 2009, plaintiff informed the retirement administrator that he could not keep the scheduled appointment, and shortly thereafter sent her a letter asserting that he was absolutely entitled to five years of disability-retirement benefits under the City ordinance. The Board referred the matter to the City Attorney’s office, which notified plaintiff in July 2009 that the Board had concluded it was unable to assess his continued eligibility for disability benefits due to his failure to submit to an evaluation, and accordingly had determined to discontinue his benefits. The letter further explained that the Board would “consider reinstatement of the benefit” once plaintiff had complied with the request to submit to a functional capacity examination.

¶ 6. Plaintiff wrote to the retirement administrator the following month asking for reconsideration, stating that he had scheduled an appointment with his own physician in Colchester in September 2009. The administrator again offered to schedule a functional capacity examination with an independent evaluator to coincide with his physician’s appointment, but no time-slot was available when she called the facility. Following the appointment with his family practice group, plaintiff sent the Board a note from a physician assistant stating she had evaluated plaintiff’s chronic back pain and found that his “condition regarding work capabilities ha[d] not significantly changed nor improved.” In the meantime, plaintiff had submitted, and the Board had approved, a request to take a functional capacity examination in Portland, Oregon. However, the certified letter from the administrator to plaintiff outlining the steps necessary to arrange the examination was returned because plaintiff did not sign it.

¶ 7. Plaintiff contacted the retirement administrator in November 2009, explaining that he had been “MIA” because of problems with his son, and asked for guidance on how to proceed. The administrator again advised plaintiff to set up an appointment for a functional capacity examination with the identified provider in Oregon, but he failed to do so. In February 2010, plaintiff sent a letter to the administrator explaining that he had recently completed his pilot training, had been hired by an airline company based in Texas, and wished to complete the required examination, although he maintained that he was entitled to continued receipt of benefits. The Board again referred the letter to the City Attorney’s office, which notified plaintiff, in March 2010, that his “cooperation with the Board [was] a condition of continued eligibility for disability benefits, ” and that failure to comply with Board’s requests risked a decision “permanently revoking any rights you may have to disability benefits.”

¶ 8. Thereafter, on April 12, 2010, plaintiff participated in a functional capacity examination at Odessa Physical Therapy in Odessa, Texas. According to the evaluation report subsequently prepared by Odessa and submitted to the Board, plaintiff expressed concern during the examination that he might injure himself and risk losing his new job if he performed the “repetitive motion and dynamic lifting portions of the test.” The Odessa evaluator contacted the City’s retirement administrator and discussed plaintiff’s concerns, after which plaintiff declined to complete those tasks. In the comments section of the report, the evaluator expressed the view that plaintiff’s concerns were “valid and reasonable” under the circumstances. Based on the balance of the physical examination and plaintiff’s medical history, the evaluator “could not recommend that [plaintiff] is physically capable of performing the job duties of a fireman safely, ” noting that he “can not run, ” “walks on the slow side of normal, ” and would have “difficulty climbing ladders, crawling, kneeling, squatting, wielding an axe, and dragging a body.” The evaluator concluded that plaintiff’s physical condition would not interfere with the essential functions of piloting a plane.

¶ 9. After deferring the matter at its regularly scheduled meeting in June 2010, the Board voted at its next meeting in July 2010 to revoke plaintiff’s disability retirement. In a letter dated August 6, 2010, the retirement administrator informed plaintiff of the Board’s action. The administrator noted that plaintiff had “submitted to a functional examination [in April of 2010] but did not fully complete the examination citing a fear that you might re-injure your back despite being employed as a pilot at the time of the examination.” The administrator explained that the Board had “determined that this is another refusal on your part to comply with its requests, ” that it had “now spent over a year” seeking plaintiff’s compliance, that it was unable to “determine [plaintiff’s] true disability status, ” and that as a ...

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