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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. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

  2. In response to bryanjbrown: thank you for your comment. I am familiar with Paul Ogden (and applaud his assistance to Shirley Justice) and have read of Gary Welsh's (strange) death (and have visited his blog on many occasions). I am not familiar with you (yet). I lived in Kosciusko county, where the sheriff was just removed after pleading in what seems a very "sweetheart" deal. Unfortunately, something NEEDS to change since the attorneys won't (en masse) stand up for ethics (rather making a show to please the "rules" and apparently the judges). I read that many attorneys are underemployed. Seems wisdom would be to cull the herd and get rid of the rotting apples in practice and on the bench, for everyone's sake as well as justice. I'd like to file an attorney complaint, but I have little faith in anything (other than the most flagrant and obvious) resulting in action. My own belief is that if this was medicine, there'd be maimed and injured all over and the carnage caused by "the profession" would be difficult to hide. One can dream ... meanwhile, back to figuring out to file a pro se "motion to dismiss" as well as another court required paper that Indiana is so fond of providing NO resources for (unlike many other states, who don't automatically assume that citizens involved in the court process are scumbags) so that maybe I can get the family law attorney - whose work left me with no settlement, no possessions and resulted in the death of two pets (etc ad nauseum) - to stop abusing the proceedings supplemental and small claims rules and using it as a vehicle for harassment and apparently, amusement.

  3. Been on social security sense sept 2011 2massive strokes open heart surgery and serious ovarian cancer and a blood clot in my lung all in 14 months. Got a letter in may saying that i didn't qualify and it was in form like i just applied ,called social security she said it don't make sense and you are still geting a check in june and i did ,now i get a check from my part D asking for payment for july because there will be no money for my membership, call my prescription coverage part D and confirmed no check will be there.went to social security they didn't want to answer whats going on just said i should of never been on it .no one knows where this letter came from was California im in virginia and been here sense my strokes and vcu filed for my disability i was in the hospital when they did it .It's like it was a error . My ,mothers social security was being handled in that office in California my sister was dealing with it and it had my social security number because she died last year and this letter came out of the same office and it came at the same time i got the letter for my mother benefits for death and they had the same date of being typed just one was on the mail Saturday and one on Monday. . I think it's a mistake and it should been fixed instead there just getting rid of me .i never got a formal letter saying when i was being tsken off.

  4. Employers should not have racially discriminating mind set. It has huge impact on the society what the big players do or don't do in the industry. Background check is conducted just to verify whether information provided by the prospective employee is correct or not. It doesn't have any direct combination with the rejection of the employees. If there is rejection, there should be something effective and full-proof things on the table that may keep the company or the people associated with it in jeopardy.

  5. Unlike the federal judge who refused to protect me, the Virginia State Bar gave me a hearing. After the hearing, the Virginia State Bar refused to discipline me. VSB said that attacking me with the court ADA coordinator had, " all the grace and charm of a drive-by shooting." One does wonder why the VSB was able to have a hearing and come to that conclusion, but the federal judge in Indiana slammed the door of the courthouse in my face.

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