COA affirms disability benefit for injured officer

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Noting that the statute is ambiguous, the Indiana Court of Appeals found the Indiana Public Retirement System’s longtime use of a formula to calculate the disability benefits of a police officer shot while in the line of duty to be reasonable.

Indianapolis Metropolitan Police Officer Jason A. Fishburn was shot in the head in July 2008 and as a result of his injury is unable to return to work. He filed for disability benefits in 2011 and the INPRS found his monthly disability benefit would be 79.85 percent of the monthly salary of a first-class patrol officer. This number is made up of the base monthly benefit for a Class 1 impairment of 45 percent, plus 34.85 percent in an additional monthly benefit.

At issue is the 34.85 percent determination. INPRS arrived at that figure using a formula it adopted in 1989. This additional benefit ranges from 10 percent to 45 percent and is based upon the degree of impairment. The formula to calculate the additional benefit percentage equaled the degree of impairment times .35, plus 10 percent.

Fishburn claimed that the statute doesn’t allow such a method and instead the additional benefit should be equal to the degree of impairment in the range of 10 to 45 percent. Since he has a 45-percent impairment, he claimed he is entitled to 45 percent in additional benefits, for a total of 90 percent of the salary.

The administrative law judge found I.C. 36-8-8-13.5(f) is ambiguous, and that application of the guidelines of statutory construction supports the agency’s interpretation. The trial court agreed and affirmed the ruling, as did the Court of Appeals.

“The formula-driven application used by INPRS results in a linear scale of additional benefits between 10% and 45% which, as a result, differentiates between those members with degrees of impairment from 0% to 100% as determined by the medical authority. The interpretation advanced by Fishburn would not differentiate between members with degrees of impairment of less than 10% or greater than 45%,” Judge Elaine Brown wrote in Jason A. Fishburn v. Indiana Public Retirement System, 49A02-1305-MI-391.

“If one of the legislature’s goals is for all members to receive additional benefits proportionate or commensurate with their respective degrees of impairment as determined by the medical authority, then INPRS’s interpretation of the statute and the result of using the method it established in 1989 accomplishes that goal.”

The judges also relied on the doctrine of legislative acquiescence to support their decision. INPRS established the method of calculating additional benefits under I.C. 36-8-8-13.5(f) in December 1989 and has applied that method since that time. The General Assembly has not clarified the manner INPRS calculates the additional benefit under Ind. Code § 36-8-8-13.5(f) or provided a different method of calculating the additional monthly benefit since then.



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  1. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

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  3. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

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