Opinion
Nos. 81-644 and 81-645
Decided November 25, 1981.
Municipal Corporations — Police and Firemen's Disability and Pension Fund — Permanent and total disability benefits — Payable, when — R.C. 742.37(C), construed.
APPEALS from the Court of Appeals for Franklin County.
These appeals have been consolidated for review by this court. The relevant facts in each case are virtually identical. Appellees, Raymond L. Manders and Elmer O'Neill, Jr., are currently receiving partial disability benefits from the Police and Firemen's Disability and Pension Fund of Ohio (fund) for service-connected injuries. Appellees claim that their conditions have deteriorated since the time they were granted partial disability benefits and they should now be considered permanently and totally disabled. Appellees each filed an application with appellant, board of trustees of the fund (board), for permanent and total disability benefits. In each case, the board refused to consider the application, contending it had no statutory authority to change an individual's award of partial disability to one of permanent and total disability.
Appellees then brought these actions in the Court of Appeals requesting the issuance of writs of mandamus to compel appellant to consider their applications for permanent and total disability benefits. The court allowed the writ in both cases.
These cases are now before this court upon appeals as of right.
Clayman Jaffy Co., L.P.A., and Mr. Walter Kaufman, for appellee Manders.
Messrs. Boggins, Centrone Bixler and Mr. Lemuel R. Green, for appellee O'Neill. Mr. William J. Brown, attorney general, and Mr. Thomas W. Hess, for appellant.
The sole issue before the court is whether appellant is required to consider an application for permanent and total disability benefits filed by an individual who is receiving partial disability benefits from the fund.
Appellant contends that because R.C. 742.37 provides no procedure for changing an award of partial disability benefits to one for permanent and total disability benefits, it lacks authority to consider appellees' applications. In support, it relies on the general rule that a statutorily created board may not exceed the powers granted to it by statute. See, e.g., Consumers' Counsel v. Pub. Util. Comm. (1981), 67 Ohio St.2d 153; Cooke v. Kinney (1981), 65 Ohio St.2d 7.
R.C. 742.37(C)(2) provides in part: "A member of the fund who is permanently and totally disabled as the result of the performance of his official duties * * * shall be paid annual disability benefits * * *." (Emphasis added.)
R.C. 742.01(E) defines "[m]ember of the fund" as " * * * any person who is contributing a percentage of his annual salary to the police and firemen's disability and pension fund created under section 742.02 of the Revised Code or who is receiving a disability benefit or pension from such fund as a result of service in a police or fire department of a municipal corporation or township * * *." (Emphasis added.)
Thus, appellees are members of the fund within the purview of R.C. Chapter 742. The provisions of R.C. 742.37(C)(2) are mandatory and require that the board pay permanent and total disability benefits when "[a] member of the fund * * * is permanently and totally disabled as the result of the performance of his official duties." Under these provisions, appellant has a clear legal duty to consider appellees' applications.
For the foregoing reason, the judgments of the Court of Appeals are affirmed.
Judgments affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and KRUPANSKY, JJ., concur.