The opinion
Andree Layton Roaf, Associate Justice, dissenting. Under the applicable statute, § 24-1 l-819(a)(l), eligibility for a disability pension vests at the time of the employee’s injury and is not affected by his subsequent employment status at the time of his application for those benefits.
That statute provides:
Any fire fighter who becomes totally and permanently physically or mentally incapacitated for any suitable duty as an employee, as a result of personal injury or disease may be retired by the board upon written application filed by or on behalf of the member. . . .
The majority has relied on rules of statutory construction to find the legislative intent. I find those rules of limited use with this act as they can support an interpretation either way, 1 and will consequently tell us little of the legislative intent. Therefore, it would be instructive to look at the underlying policies, and I think there is guidance in this area from other jurisdictions.
While the majority dispenses with any consideration of these cases on the basis of differing statutory language, that distinction is not dispositive. While the statutory language is not identical to ours, the differences are not critical or even relevant to the decisions in those cases. What is significant in these cases are the underlying policies.
The majority of cases I found on this issue held the right to disability benefits vested at the time of the injury, and membership or employment was not required at the time of a subsequent application for benefits. See Miller v. City of Wilmington, 285 A.2d 443 (1971 Del.); Newlun v. Dept of Retirement Systems, 770 P.2d 1071 (1989 Wash) and State v. Funkhauser, 325 P.2d 297 (1958 Wash). These cases looked at statutes very similar to ours and found that vesting of disability rights occurs at the time of the injury and not at the time of application for those benefits. The term “member” was used in relevant provisions, but the courts either found that term was not controlling, or simply ignored it. These cases relied instead on policy.
The considerations underlying eligibility in these situations are persuasive and are best stated in Miller v. City of Wilmington:
A primary purpose of the statute is to provide compensation to police officers for permanent disability which they receive in the course of their official duties. The right to a pension does not, therefore, depend on the applicant’s status when applying, but rather, on fulfillment of the statutory requirements of eligibility. Since defendants concede that plaintiff was injured in the performance of his duties as a policeman and that his injuries have resulted in permanent, partial disability, plaintiff, absent a waiver of his rights was entitled upon application therefor, to receive a police disability pension.
Defendants contend however, that plaintiff has waived his right to a pension since he voluntarily resigned from the police force; they argue that any reservation of rights would have to be expressly made. Defendant's argument fails to consider the liberal rules of construction established by the courts of this state in construing pension statutes. Because of the remedial purpose of such statutes, because of the fact that they authorize pensions to prospective policemen as an inducement to their employment and because the pensions are financed by contributions from the proposed pensioners themselves, a forfeiture or waiver of pension rights should be found only where clearly intended by the parties.
The foregoing is not only good policy, it is in keeping with our recognition of the liberal construction of pension statutes. See Scott v. Greer, 229 Ark. 1043 , 320 S.W.2d 262 (1959); Looper v. Gordon, 201 Ark. 841 , 147 S.W.2d 24 (1941). I would reverse.
For example, the application of the rule of construction that the express mention of one thing can be construed to mean the exclusion of another (“expressio unius est exclusio alterius”) Gazaway v. Greene County Equal.Bd., 314 Ark. 569 , 864 S.W.2d 233 (1993), can lead to two different results depending on what the rule is applied to in this act. So, there are certain contingencies listed that allow a member to remain eligible for the fund, e.g. 24-11-816(b)(1), § 24-11-817, 24-ll-820(e), § 24-ll-827(b) but there are other sections that list certain contingencies where eligibility ceases e.g.: § 24-11-816(c), § 24-11-819(a)(5), 24-ll-820(e), § 24-ll-821(a).
In neither of those groups is appellant’s contingency mentioned. Therefore, depending on which of these two groups the “expressio unius” rule is applied to, the result is different.
There is the same problem of elusiveness in the majority’s use of rules of construction. It points to § 24-11-819 and the language, “any fire fighter who becomes [disabled] as a result of personal injury . . . may be retired by the board.” The majority concludes from that language that because appellant was not a fire fighter at the time he filed for disability, he is not eligible. However, an equally strong argument can be made for the opposite result. It could be argued the legislature meant to include parties in appellant’s situation because the term “any fire fighter” was chosen instead of the term “member” or “employee” as used in other provisions. The legislature used the term “any fire fighter” to distinguish that in cases of disability, the right to benefits vests at the time of the injury. If the legislature had intended otherwise, it would have simply used the language, “any employee” or “any member.”