This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1297

 

In the Matter of the Application for PERA Police and
Fire Plan Line of Duty Disability Benefits of Thomas P. McCluney.

 

Filed April 11, 2006

Affirmed

Stoneburner, Judge

 

Public Employees Retirement Association of Minnesota

 

Richard L. Jasperson, Richard L. Jasperson, P.A., Suite E1000, 332 Minnesota Street, St. Paul, MN 55101 (for relator Thomas P. McCluney)

 

Mike Hatch, Attorney General, Rory H. Foley, Assistant Attorney General, 900 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134 (for respondent Public Employees Retirement Association of Minnesota)

 

            Considered and decided by Willis, Presiding Judge; Kalitowski, Judge; and Stoneburner, Judge.

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

Relator, a former police officer, appeals from an order of the Public Employees Retirement Association (PERA) Board of Trustees denying his application for PERA line-of-duty disability benefits.  Relator argues that the board’s decision was arbitrary, unreasonable, and not supported by substantial evidence.  We affirm.


FACTS

 

Relator began working as a police officer for Inver Grove Heights in February 2002.  In 2004, relator was diagnosed with post-traumatic stress disorder (PTSD) and panic disorder with agoraphobia.  Relator experienced a panic attack in mid-March 2004, after a physical struggle that occurred while he was trying to arrest a suspect.  He had another panic attack in April 2004.  Shortly thereafter, panic attacks or the fear of having further attacks caused relator to not work for three months.  He was terminated from his position after exhausting his leave benefits.

Relator’s family doctor, Peter C. Frederixson, prescribed medications to treat relator for panic disorder with symptoms of agoraphobia.  Dr. Frederixson stated in a June 9, 2004 letter that relator was unable to return to work at that time.  Relator then began seeing psychologist Dr. Gordon Dodge, who diagnosed relator with panic disorder with agoraphobia and PTSD.  Dr. Dodge opined that there was a strong likelihood that the traumatic incidents relator experienced in the line of duty precipitated his panic disorder.  Dr. Dodge noted that most cases of panic disorder have full recovery.  Dr. Dodge had seen many police officers become unable to do their jobs because of work stress and said that some are able to return to active duty and some are not.  He also suggested medication for relator, engaged in counseling with relator, and developed a program for relator’s gradual reintegration into his job.  Dr. Dodge suggested in a letter to the police department that relator “is able to return to duty” but that he needed to work with a close supervisor for a period of about one month.  The city was prepared to make this accommodation by assigning relator to work in a field training officer (FTO) position with an experienced officer.  As suggested by Dr. Dodge, relator simulated a return to his job by visualizing police work and visiting the police department.  But the night before he was to return to work, relator became physically ill and never returned to work.    

Relator applied for PERA disability benefits, and PERA requested that he undergo independent medical examinations.  Relator was examined by two psychiatrists chosen by PERA.  Relator was evaluated by a separate medical provider at the request of his long-term-disability insurance company, and relator retained psychologist Dr. Campion, who has worked with police officers, to examine him.  All of the medical and psychological experts agreed that relator has or has had a panic disorder and/or PTSD, but they disagreed about whether the disorders were in remission or would prevent relator from working as a police officer for more than one year, as required to qualify for the PERA benefits sought.  Relator’s treating doctors opined that he is permanently disabled and has received all the benefit he could from treatments.  Dr. Gratzer, who performed one of the IMEs for PERA, opined in an August 16, 2004 letter that “with more aggressive pharmacological treatment and cognitive behavioral therapy [relator] would have been able to return to work.”

Relator’s application for benefits was denied, and he requested an evidentiary hearing.  After the hearing, the ALJ recommended that relator’s application for benefits be approved.  But the PERA board denied benefits.  The board made findings on the record and subsequently issued a written order with findings and a memorandum explaining that the denial was based on the board’s determination that relator did not have a disability that would prevent him from working as a police officer for a full year or more.  This appeal followed.

D E C I S I O N

 

The board of a public-retirement fund is analogous to an administrative agency and its decision will be reversed only if the decision is “fraudulent, arbitrary, unreasonable, unsupported by substantial evidence, not within its jurisdiction, or based on an error of law.”  Axelson v. Minneapolis Teachers’ Ret. Fund Ass’n, 544 N.W.2d 297, 299 (Minn. 1996) (quotation omitted).  “Although a reviewing court might reach a contrary conclusion to that arrived at by an administrative body, the court cannot substitute its judgment for that of the administrative body when the finding is properly supported by the evidence.”  Vicker v. Starkey, 265 Minn. 464, 470, 122 N.W.2d 169, 173 (1963).

Relator first argues that the board’s decision was arbitrary and capricious; the result of its will, not its judgment. 

An agency’s decision is arbitrary or capricious if the agency relied on factors the legislature never intended it to consider, if it entirely failed to consider an important aspect of the problem, if it offered an explanation for the decision that runs counter to the evidence, or if the decision is so implausible that it could not be ascribed to a difference in view or the result of agency expertise.

 

Pope County Mothers v. Minn. Pollution Control Agency, 594 N.W.2d 233, 236 (Minn. App. 1999).  “If the agency’s decision represents its will, rather than its judgment, the decision is arbitrary and capricious.”  Id.  But a reviewing court will interfere with the agency’s decision only if there is a “combination of danger signals [that] suggest the agency has not taken a ‘hard look’ at the salient problems and ‘has not genuinely engaged in reasoned decision-making.’”  Id. (quoting Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 825 (Minn. 1977) (other quotation omitted)).  Agency decisions involve a presumption of administrative regularity; the party claiming otherwise has the burden of proving a decision was improperly reached.  No Power Line, Inc. v. Minn. Envtl. Quality Council, 262 N.W.2d 312, 325 (Minn. 1977).

Relator argues that comments made by board members at the time they voted to deny benefits demonstrate that their decision was arbitrary.  After relator’s application was introduced at a board meeting, board member Arneson stated:

I have a tougher time with emotional or mental disabilities. When you’ve got somebody that’s 25 years old and only worked for two-and-a-half years and he admittedly experienced some very traumatic incidents, but that’s sort of the nature of the police officer work, and then . . .  he finds out, gee, I don’t want to continue in this kind of career and do this kind of work, well, then that means you go look for another line of work. It doesn’t mean that . . . the other employees and the taxpayers should just pay you a disability benefit for the rest of your life.  I have a tough time with finding this to be a qualified disability.

 

Board member Anderson immediately stated: “I agree.”  The board president then asked: “Do I have a motion?”  Board member Gray moved to deny the application and stated: “To support my motion . . . I have specific things in [the] record.”  Gray then quoted from a pre-employment evaluation stating that relator was psychologically fit for duty and referred to a report that does not appear in the record.  Further discussion resulted in a comment that board member Hegberg supported the motion because: “also it was mentioned in there that he could have additional medical . . . .”  Gray interrupted, stating: “FTO. . . . Training, field training.”  Hegberg then commented that relator is young and “can choose a different line of work.”  The board also discussed whether relator was fired or quit his job. 

            The Assistant Attorney General, as advisor to the board, pointed out that the first report cited by Gray was a pre-employment report and noted that Dr. Gratzer’s report was the report that opined that relator had not been appropriately treated for his condition.  The board members then discussed evidence in the record that relator’s condition was treatable or curable.  The board members ultimately credited Dr. Gratzer’s opinion that with adequate treatment relator would have been able to return to work within a year and voted to deny the application. 

            The order issued subsequent to the meeting expanded on the recorded finding that relator’s condition was treatable and provided further discussion of Dr. Gratzer’s opinion.  An agency has to have contemporaneous “reasons for its decision recorded or reduced to writing and in more than just a conclusory fashion.”  Honn v. City of Coon Rapids, 313 N.W.2d, 409, 416 (Minn. 1981).  A reviewing court looks at the contemporaneous record made by the agency, Metro 500, Inc. v. City of Brooklyn Park, 297 Minn. 294, 300, 211 N.W.2d 358, 362 (1973), which generally is limited to findings adopted by the entity during the meeting when the decision is made.  See Swanson v. City of Bloomington, 421 N.W.2d 307, 313 (Minn. 1988) (describing “contemporaneous” written findings as those adopted by city council at meeting when it denied application).  The purpose for requiring contemporaneous findings is to prevent the decision-making body from later providing reasons that are “completely unconnected with the actual basis for the denial.” Metro 500, 297 Minn. at 300, 211 N.W.2d at 362. 

            A concern that a decision was arbitrary may arise where there is no record at all, or an extremely vague record, of the administrative proceedings, followed by additional reasons stated after-the-fact that the record does not disclose were stated at the time of the decision.  See Hurrle v. County of Sherburne, 594 N.W.2d 246, 250 (Minn. App. 1999).  In this case, however, reliance on Dr. Gratzer’s opinion to reject relator’s application was stated on the record.  The subsequent written findings merely expand on the contemporaneously stated finding.  Based on the limited standard of review applicable in these cases, we cannot conclude that the board’s decision in this case was arbitrary.

Relator also argues that the record does not contain substantial evidence to support the board’s findings.  Substantial evidence is “1) such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; 2) more than a scintilla of evidence; 3) more than ‘some evidence’; 4) more than ‘any evidence’; and 5) evidence considered in its entirety.”  Reserve Mining Co.,256 N.W.2d at 825.  The substantial-evidence test requires this court to evaluate the evidence that the fact-finder relied on “in view of the entire record as submitted.”  Minn. Power & Light Co. v. Minn. Pub. Utils. Comm’n, 342 N.W.2d 324, 332 (Minn. 1983) (quotation omitted).  This court will affirm if the agency has engaged in reasoned decision-making, even though this court might have reached a different conclusion if it had been the fact-finder.  First Nat’l Bank v. Dept. of Commerce, 350 N.W.2d 363, 368 (Minn. 1984).

Reviewing courts have “repeatedly recognized that resolution of conflicting medical evidence is the province of the trier of fact.”  Nibbe v. City of Saint Paul, 320 N.W.2d 92, 93 (Minn. 1982).  “[T]he functions of factfinding, resolving conflicts in the testimony, and determining the weight to be given to it and the inferences to be drawn therefrom rest with the administrative board.”  In re Appeal of Rocheleau, 686 N.W.2d 882, 892 (Minn. App. 2004), review denied (Minn. Dec. 22, 2004).  The findings of fact “will not be disturbed unless consideration of the evidence and inferences permissible therefrom clearly require reasonable minds to adopt contrary conclusions.”  Daupine v. City of Minneapolis, 311 Minn. 551, 552, 249 N.W.2d 463, 464 (1977).  

Relator contends that “there is nothing in the record that says to a reasonable degree of medical certainty that the relator will be able to successfully return to . . . work . . . within one year.”  But Dr. Gratzer opined on August 16, 2004, that with adequate treatment relator would already have been able to return to work.  In a later letter, Dr. Gratzer added that relator would be an “excellent candidate” for pharmacological treatment of his panic attacks, including “a number of FDA-approved medications including higher doses of Paxil or alternative medications such as Zoloft or Prozac.”  Dr. Gratzer explained that it was inaccurate to opine, as relator’s second psychologist Dr. Campion did, that relator would be “drugged up,” as “[t]hese medications are not sedating and would not cause [relator] to be impaired in any way.”  Dr. Gratzer stated that panic disorder is “highly treatable” and most individuals with it can be “fully managed . . . without any side effects or impairments.”  Dr. Gratzer concluded that “there is no basis for determining that [relator] has a permanent impairment . . . this condition is a highly treatable one . . . it would have been realistic that he would have returned to work.” 

Relator appears to request that this court reverse the board’s decision because other medical doctors and psychologists who provided expert opinions in this case are more credible or accurate than Dr. Gratzer, but relator has not discussed how Dr. Gratzer’s opinions are insufficient or insubstantial evidence.  Nor has he provided any precedent or reason that would permit this court to reweigh the expert opinions and give less weight to Dr. Gratzer’s opinions.  Dr. Gratzer’s opinions constitute substantial evidence supporting the board’s findings that relator did not prove an expectation that he would not be able to return to work within a year. 

Relator also contends that the board’s decision was unreasonable.  Our review of the board’s decision focuses on the “legal sufficiency of and factual basis for the reasons given.”  Swanson, 421 N.W.2d at 313.  Relator contends the board was unreasonable because it effectively imposed a requirement that he obtain more treatment when he has already had a great deal of treatment and those who treated him opined that he is permanently disabled from returning to work as a patrol officer even after undergoing the treatment they prescribed.  But relator points to nothing in the PERA benefits statute that makes requiring additional appropriate treatment unreasonable. 

Relator also argues that the evidence provided to the board does not meet the requirements of Minn. Stat. § 353.656, subd. 5(c) (2004), which states that “[a]dequate proof of a disability must include a written expert report by a licensed physician, by a licensed chiropractor, or with respect to a mental impairment, by a licensed psychologist.”  Relator contends that the board’s decision to deny benefits is defective because the board relied on expert reports from medical doctors (psychiatrists) rather than psychologists.

We note that relator did not raise this argument to the board, and therefore has waived the issue on appeal.  See In re Hildebrandt’s Application for Duty-Related Corr. Plan Disability Benefits, 701 N.W.2d 293, 299 n.2 (Minn. App. 2005) (holding, in a review by certiorari of similar PERA disability proceedings, that PERA waived an argument that was “never . . . raised prior to this appeal”) (citing Thiele v. Stich, 425 N.W.2d 580, 585 (Minn. 1988)). 

We also note that this claim is without merit.  The statute on its face expands the sources of adequate proof of a mental impairment that a petitioner may present but does not limit the type of evidence that the board may consider.  Furthermore, to require reversal of an agency’s decision, an error must prejudice relator’s substantial rights.  See Erickson v. Comm’r of Dep’t of Human Servs., 494 N.W.2d 58, 62 (Minn. App. 1992).  In this case, relator has presented no authority demonstrating that psychiatrists are less well-qualified to diagnose and opine on the appropriate treatment for mental disorders, or that he was prejudiced by being examined by psychiatrists.

Affirmed.