Opinion
Williams, Erickson & Wallace, P. C. Wayne D. Williams, Denver, for plaintiffs in error, Police Pension and Relief Board, William L. Koch, Harry E. Zietz, Warren K. Beard, Robert W. Woody and A. David Eastis.
No appearance for plaintiff in error, City and County of Denver.
Paul S. Goldman, Denver, for defendant in error.
COYTE, Judge.
This case was transferred from the Supreme Court pursuant to statute.
The parties shall be referred to in the following manner: The Police Pension and Relief Board as the 'Board;' the City and County of Denver as the 'City;' and Dr. Goldman as 'plaintiff.'
Plaintiff was employed by the City as a police surgeon. In 1967 he requested sick leave benefits from the police department under Denver City Charter s C5.37, et seq., on the grounds that he could not carry out his duties as a police surgeon due to back injuries. Also, because of these injuries, plaintiff made a claim against the City for a full year's salary under Denver City Charter s C5.41--1. A hearing was held by the Board in January 1968. After taking testimony and receiving medical reports, the Board found that plaintiff was not entitled to the sick leave benefits because he was capable of carrying out his duties as a police surgeon. The City also refused his claim for a full year's salary. Plaintiff appealed under R.C.P. Colo. 106 to the district court.
After examining the record and evidence submitted to the Board, the trial court made two findings which are pertinent to this appeal. First, the trial court found that the Board erred in finding that the plaintiff was capable of fulfilling his duties as police surgeon; and, second, that the Board abused its discretion when it heard the issue without first requiring an investigation be carried out by the investigating committee in accordance with Denver City Charter ss C5.38 and C5.38--1, which provide as fullows:
'C5.38 Investigating committee. There is also hereby created a commmittee for the investigation of pensions and relief, which shall consist of five members to be elected between June 1 and June 15, 1947, and between January 1 and January 15, of each succeeding year from the members of the Denver police department, in the classified service, by a secret ballot of all such members. It shall be the duty of said committee: C5.38--1 To investigate and submit reports to the board on all applications for pensions and relief under the provisions of this amendment and to investigate and report such other matters relative to pensions and relief as may be directed by the board.'
Based upon these findings, the trial court entered its judgment in plaintiff's favor, according to which the City was ordered to pay plaintiff his full year's salary as claimed, and the cause was then remanded to the Board with the order that it make a determination as to the precise amount of benefits and relief to which plaintiff was entitled under Denver City Charter s C5.37.1, et seq.
The City has satisfied the judgment and has not entered an appearance in this appeal. Accordingly, the judgment against it remains unchanged.
The Board however has appealed the ruling requiring it to make determination as to the amount of relief to which plaintiff would be entitled. The trial court by its ruling in effect stated that the plaintiff was entitled to relief from the Police Pension Fund as a matter of law, and only the amount of relief was open for question. The Board has argued that this holding was erroneous because the evidence fully supported the Board's finding of fact that the plaintiff was capable of carrying out his duties as police surgeon, and that therefore plaintiff is not entitled to relief.
It is first argued that the Board as an agency of the City cannot appeal without the concurrence of the City. However, the City has established by ordinance that the Board is a separate legal entity. The year's salary paid by the City and not appealed by it was paid pursuant to Denver City Charter s C5.41--1. The issue on this appeal is the right of the plaintiff to benefit from the Police Pension and Relief Fund, which is by ordinance to be administered by the Board according to Denver City Charter s C5.37--1. This provision states:
'The 'police pension and relief board' shall have exclusive control of all matters pertaining to the granting of relief to members of the Denver police department, in the classified service, who shall become sick or injured * * *. The decisions of said 'board' shall be final and subject to review on appeal by the district court of the city and county of Denver.'
Clearly then, the decision made by the Board as to the proper disposition of the Pension and Relief Fund was intended to be a separate and distinct decision from that made by the City concerning the payment of salaries. As such, the Board may of its own initiative appeal an adverse decision affecting this particular fund, regardless of whether or not the City wishes to appeal the decision affecting the general fund.
Having determined that the Board has the right to appeal, the next question concerns the substance of its argument. The Board argues that the evidence, although conflicting, was sufficient to support its findings. According to the record, the evidence consisted of testimony by plaintiff and medical reports submitted by plaintiff and the Board. The two medical reports relied upon by the Board were reports of two physicians who examined plaintiff and stated that in their opinion the plaintiff was capable of functioning as a physician. According to plaintiff's testimony he was not capable of carrying out his duties as a police surgeon, which, according to him, were physically more strenuous than those of the average physician. The trial court accepted this argument, for in its opinion it stated that the record was barren of any evidence to support a finding that plaintiff could function as a Police surgeon, and that the only evidence in the Board's favor was that the plaintiff could function as a Regular physician.
The trial court erred in determining that there was a distinction as a matter of law between the duties of a regular physician and those of a police surgeon in terms of physical exertion required. The only evidence to prove the existence of such a distinction was plaintiff's testimony. Only if that testimony is accepted as true could the court conclude that the police surgeon's duties entail far greater physical exertion than those of a regular physician. It was not for the trial court to make such a determination of credibility. The Board in its function as fact finder was charged with the duty of determining issues of credibility of the witnesses. Goldy v. Henry, 166 Colo. 401, 443 P.2d 994.
A determination against plaintiff's credibility on this point would mean that no evidence existed to support the theory that a physician operating as a police surgeon necessarily expends more physical energy than one operating in some other capacity as a doctor. This would mean that the Board's finding that plaintiff was capable of carrying out his duties would be supported by the reports of the two examining physicians, and this finding is therefore supported by sufficient evidence and not subject to being reversed upon appeal. Hubbard v. Pueblo Firemen's Pension Fund, 150 Colo. 495, 374 P.2d 492.
The final question concerns the course of action the trial court should have taken in view of its finding that the Board erred in its procedure. According to the applicable charter provisions, an investigating committee was established to investigate and report to the Board. It is admitted by the Board that the record fails to show that this procedure was carried out.
We conclude that the investigating committee is an arm of the Board and that the Board had jurisdiction to hear evidence and make determination as to plaintiff's physical condition without a prior report of the investigating committee, and that the finding of the Board, if supported by competent evidence, was binding upon plaintiff.
Accordingly, the judgment remanding the case back to the Board with the order that it make a determination as to the precise amount of benefits and relief to which plaintiff was entitled under Denver City Charter s C5.37.1, et seq., is reversed, with the direction that the trial court enter an order reinstating the finding of the Board that plaintiff was physically capable of carrying out his duties as a police surgeon at the time of the hearing.
DWYER and PIERCE, JJ., concur.