This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C4-96-64

Dennis A. Nordstrom,
Appellant,

vs.

Minneapolis Police Relief Association,
Respondent.

Filed July 30, 1996
Affirmed
Peterson, Judge

Hennepin County District Court
File No. 932664

George H. Smith, Trawick & Smith, P.A., 330 Second Avenue South, Suite 702, Minneapolis, MN 55401 (for Appellant)

C.J. Knippel, Rischmiller, Knippel & Aronson, 607 Marquette Avenue, Suite 302, Minneapolis, MN 55402 (for Respondent)

Considered and decided by Peterson, Presiding Judge, Norton, Judge, and Holtan, Judge.*

U N P U B L I S H E D O P I N I O N

PETERSON, Judge

Appellant Dennis Nordstrom challenges a directed verdict that denied his claims for permanent disability benefits and indefinite disability benefits. We affirm.

FACTS

Appellant began working as a police officer with the Minneapolis Police Department (MPD) in 1970. On December 17, 1986, appellant applied for permanent disability benefits from respondent Minneapolis Police Relief Association, claiming psychological injury as a result of his work with the MPD. Respondent denied the request for benefits. In February 1987, appellant's employment with the MPD was terminated.

In 1992, appellant filed an action claiming he is entitled to receive disability benefits because he became totally disabled on April 14, 1986. The matter was sent to arbitration, and the arbitrator found in respondent's favor. Appellant filed a request for trial under Spec. R. Pract., Fourth Jud. Dist. 5.12. After both parties presented their cases, the trial court granted respondent's motion for a directed verdict.

D E C I S I O N

1. Appellant argues the trial court erred in excluding from evidence Dr. Bernard Coehlo's answer to a hypothetical question posed by appellant. Appellant did not make a motion for a new trial.

It has long been the general rule that matters such as trial procedure, evidentiary rulings and jury instructions are subject to appellate review only if there has been a motion for a new trial in which such matters have been assigned as error.

Sauter v. Wasemiller, 389 N.W.2d 200, 201 (Minn. 1986). Absent a new trial motion, the trial court's evidentiary ruling is not subject to review.

2. Appellant argues the trial court erred when it denied his motion to amend his complaint to assert a claim for indefinite disability benefits. The record, however, does not indicate that the trial court denied appellant's motion to amend.

Following the submission of evidence by both parties, respondent moved for a directed verdict and appellant moved to amend the pleadings to assert a claim for indefinite disability benefits. The transcript includes some discussion of the motions, but the trial court did not rule on either motion. The trial court took the motions under advisement and recessed until the next day. The next day, the trial court granted respondent's motion for a directed verdict without ruling on appellant's motion to amend. In its memorandum, however, the trial court specifically dismissed appellant's claim for indefinite disability benefits. Because the trial court specifically addressed appellant's claim for indefinite disability benefits, any error that may have occurred when the trial court failed to grant appellant's motion to amend was harmless error. See Minn. R. Civ. P. 61 (court must disregard error or defect in proceeding that does not affect substantial rights of parties).

3. In reviewing a directed verdict, an appellate court must independently determine whether the evidence was sufficient to present a fact question for the jury. Nemanic v. Gopher Heating & Sheet Metal, Inc., 337 N.W.2d 667, 669 (Minn. 1983).

A directed verdict should be granted only where, in light of the evidence as a whole, it would be the duty of the trial court to set aside a contrary verdict as manifestly contrary to the evidence or to the law. Finally, in considering the motion, the trial court must accept as true the evidence favorable to the adverse party and all reasonable inferences which can be drawn from that evidence. This court must apply the same standard.

Claflin v. Commercial State Bank, 487 N.W.2d 242, 247 (Minn. App. 1992) (citations omitted), review denied (Minn. Aug. 4, 1992). "[A] directed verdict is appropriate only in the exceptional case" and should be used "cautiously and sparingly." Wohlfeil v. Murray Mach., Inc., 344 N.W.2d 869, 873 (Minn. App. 1984).

The trial court found that appellant failed to comply with the statutory requirements to receive either a permanent disability pension or an idefinite disability pension. The statute applicable to permanent disability pensions when appellant applied for disability benefits in 1986 provided [1]:

No member shall be awarded, granted, or paid a [permanent disability] pension * * * except upon the certificate of two or more physicians or surgeons chosen by the governing board. This certificate shall set forth the cause, nature, and extent of the disability, disease, or injury of the member. No active member shall be awarded, granted, or paid a [permanent disability] pension * * * unless the certificate states that the disability, disease, or injury was incurred or sustained by the member while in the service of the police department of the city. Each such certificate shall be filed with the association.

The trial court granted a directed verdict on appellant's claim for permanent disability benefits because appellant never provided the certificates of two or more physiscians or surgeons setting forth the cause, nature, and extent of his disability. We agree that the statute requires these certificates before benefits may be paid and that appellant is not eligible for permanent disability benefits because the certificates have never been submitted. The trial court, therefore, properly granted a directed verdict.

The statute applicable to indefinite disability pensions in 1986 provided:

Any active member who becomes disabled from performing his duties as a member of the police department of the city by reason of sickness or accident, if off the payroll of the police department, having exhausted all accumulated vacation, overtime, and sick leave credits due him, is entitled to receive from the association during his disability such benefits as the bylaws of the association provide, but such benefits shall not extend beyond a six-months period except when an active member is disabled because of an injury sustained while on duty. Such benefits may extend for an indefinite time during disability. * * * Before any such benefits shall be paid or allowed, notice of the disability and application for benefits on account thereof shall be made to the secretary of the association within 90 days after such sickness or disability.

The trial court granted a directed verdict on appellant's claim for indefinite disability benefits because appellant admitted that he did not apply for indefinite disability benefits. The statute requires an application for benefits before any benefits may be paid. We agree with the trial court that appellant was not eligible to receive indefinite disability benefits in 1986 because he made no application for these benefits.

Affirmed.


Footnotes

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, ' 10.

[1]Minn. Stat. ' 423.745, subd. 4, the statute applicable to permanent disability pensions, and Minn. Stat. ' 423.75, subd. 3, the statute applicable to indefinite disability benefits, have not appeared in Minnesota Statutes since 1957. These sections became "noncodified" in 1961. Minn. Stat. Ann. '' 423.71-.775 historical note (West 1987). The sections remained in effect in 1986 when appellant applied for disability benefits, but had been amended by 1959 Minn. Laws ch. 662, ' 4; 1965 Minn. Laws ch. 493, ' 3; and 1983 Minn. Laws ch. 88, '' 8, 10-11. The sections were repealed in 1992 and recodified in chapter 423B. 1992 Minn. Laws ch. 471, '' 1-21.