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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. Such things are no more elections than those in the late, unlamented Soviet Union.

  2. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  3. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  4. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  5. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

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