FOR PUBLICATION

ATTORNEYS FOR APPELLANT:                    ATTORNEY FOR APPELLEE:

GREGORY F. ZOELLER                          MATTHEW LANGENBACHER
Attorney General of Indiana                 Indianapolis, Indiana

KATHY BRADLEY
Deputy Attorney General
Indianapolis, Indiana                                              FILED
                                                                 Dec 31 2012, 11:25 am


                                                                        CLERK
                              IN THE                                  of the supreme court,
                                                                      court of appeals and
                                                                             tax court

                    COURT OF APPEALS OF INDIANA

INDIANA PUBLIC EMPLOYEE                     )
RETIREMENT FUND,                            )
                                            )
       Appellant-Respondent,                )
                                            )
              vs.                           )    No. 49A04-1201-MI-2
                                            )
PAUL BRYSON,                                )
                                            )
       Appellee-Petitioner.                 )


                    APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Michael D. Keele, Judge
                           Cause No. 49D07-1103-MI-011706




                                 December 31, 2012


                    OPINION ON REHEARING - FOR PUBLICATION


ROBB, Chief Judge
      Indiana Public Employee Retirement Fund (“PERF”) petitions this court for

rehearing of our opinion dated October 9, 2012. In that opinion, we affirmed the trial

court’s order concluding that Paul Bryson was entitled to Class 1 impairment disability

benefits because Bryson was determined to have a “covered impairment” that was “the

direct result of . . . [a] personal injury that occur[ed] while the fund member [was] on

duty.” Ind. Pub. Emp. Ret. Fund v. Bryson, 977 N.E.2d 374, 379 (Ind. Ct. App. 2012).

We grant rehearing for the purpose of addressing an issue raised by PERF in its petition,

but we affirm our original opinion.

      PERF contends “there is no medical evidence to support a finding that Bryson’s

on-duty injuries created an impairment.” Appellant’s Petition for Rehearing at 1. This is

merely a rephrasing of PERF’s argument on direct appeal—that Bryson is impaired due

to a pre-existing condition, degenerative disc disease, rather than due to any on-duty

injuries. We specifically concluded that:

      a fund member who was able to perform his job duties before an on-duty
      injury despite having a pre-existing condition or health issue that preceded
      the on-duty injury, and who becomes unable to perform his job duties only
      after sustaining an on-duty injury, has an impairment that is the “direct
      result” of the physical injury or injuries sustained while on duty. This is so
      even if the on-duty injury created an impairment by exacerbating a pre-
      existing condition, so long as the pre-existing condition did not previously
      prevent the fund member from performing his or her job duties.

Bryson, 977 N.E.2d at 379. We decline PERF’s invitation to reexamine this issue.

      PERF also raises another argument which it did not raise in its appellate brief: that

Bryson was not actually prevented from performing his job duties after his on-duty

injuries, but rather, that he was considered disabled as a preventative measure due to his


                                            2
pre-existing condition. The problem with this argument is that he was found to have a

“covered impairment” for the purposes of Indiana Code section 36-8-8-12.3, which is

defined as “an impairment that permanently or temporarily makes a fund member unable

to perform the essential function of the member’s duties.” Thus, even if some medical

reports seem to support PERF’s argument, this finding, which is the foundation of the

entire issue of whether his disability was Class 1 or Class 2, demonstrates otherwise.

Further, the finding that Bryson had a covered impairment is not an issue PERF contested

on appeal. We therefore affirm our original opinion.

BAKER, J., concurs.

BRADFORD, dissents.




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