interpreting the word “its” in ORS 34.100 to mean “the court’s”
How later courts described this case
- interpreting the word “its” in ORS 34.100 to mean “the court’s”
Written by the judges who cited it.
The opinion
FOLEY, J.,
dissenting.
In this case the purpose of the writ of review, as mentioned by the majority, is to determine whether the action of the inferior tribunal (the Board of Trustees of the Portland Fire and Police Disability and Retirement Fund) which terminated plaintiff’s disability payment was arbitrary. ORS 34.040.
The doctors’ report said:
“The patient does have some disability following his injury, but is quite capable of being gainfully employed in many activities. Insofar as being capable of resuming all of the duties required of a policeman, there is a definite probability that, were he involved in physical struggle with another individual, his current residuals could be definitely aggravated. Other than the above, there are no contraindications to his rejoining the Police Force on an active basis.”
The only definition of disability in the charter is found in § 5-115 where it mentions a disabled member as one who is “unable to perform his required duties.”
*342 The Board, in effect, determined that the claimant was able to “perform his required duties” and terminated his disability payments.
I find nothing arbitrary about the Board’s determination. There was no evidence that “his required duties” would necessarily involve “physical struggle with another individual.” The medical report said, in substance, that this was the only indication against “rejoining the Police Force on an active basis.” ①
The trial court’s order affirmed the termination by the Board of “service-connected disability benefits of the plaintiff,” and additionally attempted to place plaintiff in a limited duty status. The writ of review in this case was confined to a determination of whether or not the Board’s order was arbitrary, so the “limitation” in the trial court’s order was, in my view, beyond the scope of its review.
I would affirm the trial court’s order, but delete therefrom the limitation which purports to place plaintiff in a limited duty status.
If plaintiff returns to active duty and is assigned duties which he cannot perform, I can see no reason why he could not then apply for disability benefits as “being unable to perform his required duties.”