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 think the cops are doing a great job locking up criminals. The Murder rates in the inner cities are skyrocketing and you think that too any people are being incarcerated. Maybe we need to lock up more of them. We have the ACLU, BLM, NAACP, Civil right Division of the DOJ, the innocent Project etc. We have court system with an appeal process that can go on for years, with attorneys supplied by the government. I'm confused as to how that translates into the idea that the defendants are not being represented properly. Maybe the attorneys need to do more Pro-Bono work

  2. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

  3. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  4. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  5. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.