                          This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2012).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A14-0398

            In the Matter of the Duty Disability Benefits for Matthew Olson.

                                Filed October 27, 2014
                                       Affirmed
                                 Stoneburner, Judge

                 Public Employees Retirement Association of Minnesota


Mary Beth Boyce, Ronald F. Meuser, Jr., Jennifer Yackley, Meuser Law Office, P.A.,
Eden Prairie, Minnesota (for relator)

Lori Swanson, Attorney General, Rory H. Foley, Assistant Attorney General, St. Paul,
Minnesota (for respondent)


      Considered and decided by Kirk, Presiding Judge; Hudson, Judge; and

Stoneburner, Judge.

                        UNPUBLISHED OPINION

STONEBURNER, Judge

      Relator, a public employee who incurred a work-related disabling injury,

challenges the denial of his application for duty disability benefits. Relator argues that

respondent, administrator of his disability benefits, misinterpreted the statute defining

duty disability benefits, acted arbitrarily and capriciously and outside the scope of its


 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
authority, and reached a conclusion unsupported by the evidence when it concluded that

relator failed to meet the statutory requirements for entitlement to duty disability benefits.

We affirm.

                                          FACTS

       The essential facts are undisputed in this case. In February 2011, relator Matthew

Olson, a sheriff’s detention deputy for Hennepin County, suffered a disabling injury to

his left knee. The injury occurred on a steep, narrow, poorly lit spiral staircase between

the secure fourth- and fifth-floor control rooms of the Hennepin County Detention

Center. Olson was descending to the fourth-floor control room to relieve another officer

who had expressed an urgent need to use the restroom. At least one detention deputy is

required to be in each control room at all times to monitor the prisoner-housing areas.

       Olson applied for both regular disability benefits and duty disability benefits.

Respondent Board of Trustees of the Public Employees Retirement Association of

Minnesota (PERA board) approved Olson’s application for regular benefits but denied

his application for duty disability benefits. Olson requested a hearing, which was held

before an administrative law judge (ALJ).

       Based on the undisputed facts, the ALJ concluded that Olson failed to meet his

burden to prove by a preponderance of evidence that he met the statutory requirements

for entitlement to duty disability benefits. The ALJ recommended that the PERA board

affirm denial of Olson’s application for duty disability benefits.

       Olson appealed the ALJ’s decision, and the matter was submitted to the PERA

board on the record made at the administrative hearing. The PERA board discussed the


                                              2
matter at a regular board meeting and adopted the ALJ’s findings, recommendations, and

decision in their entirety. This certiorari appeal followed.

                                          DECISION

I.     Standard and scope of review

       Judicial review of an agency decision begins with the presumption that the

agency’s decision is correct. In re Claim for Benefits by Meuleners, 725 N.W.2d 121,

123 (Minn. App. 2006).         But an agency decision may be remanded for further

proceedings, modified, or reversed on appeal

              if the substantial rights of the [relator] may have been
              prejudiced because the administrative finding, inferences,
              conclusion, or decisions are:
              ....
              (b) in excess of the statutory authority . . . of the agency; or
              ....
              (e) unsupported by substantial evidence in view of the entire
              record as submitted; or
              (f) arbitrary or capricious.

Minn. Stat. § 14.69 (2012).     And an appellate court “retain[s] the authority to review de

novo errors of law which arise when an agency decision is based upon the meaning of

words in a statute.” Greene v. Comm’r of Minn. Dep’t of Human Servs., 755 N.W.2d

713, 721 (Minn. 2008) (quotation omitted). An agency’s interpretation of a statute that it

administers is entitled to deference and should be upheld unless it is in conflict with the

express purpose of the statute and the legislature’s intention. George A. Hormel & Co. v.

Asper, 428 N.W.2d 47, 50 (Minn. 1988); contra J.C. Penney Co. v. Comm’r of Econ.

Sec., 353 N.W.2d 243, 246 (Minn. App. 1984) (stating that an agency’s interpretation of

a statute is not entitled to deference if it is in contravention of the plain statutory language


                                               3
or when there are compelling indications that the agency’s interpretation is wrong). We

consider the words of a statute in order to “ascertain and effectuate the intention of the

legislature.” Minn. Stat. § 645.16 (2012).

II.    Language of Minn. Stat. § 353E.06 (2012) as applied

       A.     The statute

       Minn. Stat. § 353E.06 provides for “regular”1 and “duty” disability benefits for

local government correctional service employees like Olson. Duty disability benefits are

paid at a higher rate than regular disability benefits. See Minn. Stat. § 353E.06, subd. 1.

At the time of Olson’s injury, a “duty disability” was defined, in relevant part, as:

              a condition . . . that is the direct result of an injury incurred
              during . . . the performance of normal duties or the actual
              performance of less frequent duties, either of which are
              specific to protecting the property and personal safety of
              others and that present inherent dangers that are specific to
              the positions covered by the local government correctional
              service retirement plan.

Minn. Stat. § 353E.001, subd. 1 (2012).2




1
   A “regular disability” is defined, in relevant part, as “a condition . . . that results from
. . . an injury that arises from any activities . . . while at work from performing those
normal or less frequent duties that do not present inherent dangers that are specific to the
occupations covered by the local government correctional service retirement plan.”
Minn. Stat. § 353E.001, subd. 4 (2012).
2
   The definition of “duty disability” was amended in 2013 to provide, in relevant part,
that a “duty disability” is a condition “that is the direct result of an injury incurred during
. . . the performance of inherently dangerous duties that are specific to the positions
covered by the local government correctional service retirement plan.” Minn. Stat.
§ 353E.001 (Supp. 2013).

                                              4
         B.    Olson’s claims

               1.     Interpretation of statute

         Olson argues that the PERA board misinterpreted the duty disability statute by

concluding that descending the spiral staircase does not present inherent dangers specific

to his position. Olson asserts that: (1) the nature of his position puts him in constant

danger of suffering bodily harm, and he was acting in furtherance of his position when he

was injured; (2) while not every stairwell presents inherent dangers within the meaning of

the statute, “this spiral staircase by its design and construction did present inherent

dangers”; (3) the PERA board impermissibly equated “inherent dangers” with “inherently

dangerous” and thereby required him to prove that a duty was “inherently dangerous”

rather than that a duty presented an “inherent danger”; and (4) because he was descending

the staircase while performing work duties and because an inherent danger of descending

the stairs is falling, he met his burden of proof.

         The record reflects that the terms “inherently dangerous” and “inherent danger”

were sometimes used as synonyms by Olson’s attorney and by members of the PERA

board.     Olson has attempted to distinguish these terms, but has described the stairs as

both presenting an inherent danger and as being inherently dangerous. The findings of

fact and conclusions of law adopted by the PERA board accurately recite the language of

the statute in effect at the time of Olson’s injury, and we find no merit in Olson’s

argument that any use of the terms “inherent danger” and “inherently dangerous” in the

PERA board’s discussion reflect a misinterpretation of the statute or misapplication of the

statute to the facts of Olson’s injury.


                                               5
       Olson also argues that the PERA board misinterpreted the statute by concluding

that to be “specific” to the position of a correctional officer an inherent danger must be

“unique” to the job.3 Olson relies on In re Claim for Benefits by Sloan, 729 N.W.2d 626,

630 (Minn. App. 2007).       In Sloan, we interpreted a statute that applied to injuries

incurred during the course and scope of a peace officer’s duties as a peace officer. In that

case, we rejected as too narrow a subjective test focused on whether the discrete activity

involved is “unique” to law enforcement. Id. We concluded that interpretation of the

statute requires an objective test that “takes into account the facts and circumstances

immediately available to the officer” in taking action as a peace officer.        Id. The

statutory language at issue in Sloan permits broader coverage than the language of Minn.

Stat. § 353E.001, subd. 1. But even under the Sloan analysis that takes into account the

facts and circumstances “immediately available” to Olson in moving between control

rooms, we conclude that the PERA board did not misinterpret Minn. Stat. § 353E.001,

subd. 1, by concluding that Olson’s injury did not occur while he was performing a duty

specific or unique to his position.

       Although the statute does not provide a bright-line test for determining whether a

disability qualifies for duty disability benefits, we agree with the PERA board’s

determination that under the plain language defining duty disability the circumstances of


3
  Olson appears to argue that “specific” can be interpreted to mean either “unique” or
“common,” creating an ambiguity in the statute. But “specific” is defined, in relevant
part, as “[s]pecial, distinctive, or unique.” The American Heritage Dictionary of the
English Language 1669 (4th ed. 2000). The typical definition of “common” is
“[w]idespread; prevalent,” or “usual.” Id. at 372. Because “specific” and “common”
have nearly opposite meanings, we find no merit in Olson’s argument.

                                             6
Olson’s injury do not establish his eligibility for duty disability benefits. Although Olson

was disabled by an injury that occurred while he was performing a normal duty, the duty

to move from one secured area to another using a stairway does not present an inherent

danger specific to Olson’s position as a corrections officer.

       Moving from one non-dangerous area in a workplace to another non-dangerous

area, even when a stairway is used, is a requirement associated with many occupations

and is not specific to the position Olson occupied at the time of his injury. To reach this

conclusion, one need not parse the meanings of “specific” and “unique.” See Axelberg v.

Comm’r of Pub. Safety, 848 N.W.2d 206, 214 (Minn. 2014) (“[When] the words of [a]

law are sufficiently explicit to ascertain and effectuate the intent of the Legislature, and

their application to [a] situation is clear and free from all ambiguity, there is no need to

turn to the canons of construction.”).4

       Olson further asserts that the statutory definition of duty disability is ambiguous

and should be interpreted consistent with legislative intent, which, Olson asserts, is that

special consideration should be given to government employees who devote their time to

protecting the safety of others. We agree that many aspects of correctional-officer work

present inherent dangers and that the legislature intended special consideration for

injuries incurred in performing such duties that are specific to the position. But Olson’s


4
  Olson alternatively argues that even if this court accepts the board’s “unreasonable and
narrow definition of ‘specific,’ the inherent danger [posed] by the spiral staircase would
still satisfy [the statute] because it is unique to the duties of a Hennepin County
correctional officer.” But the statute plainly provides that it is the duty being performed
that must be specific to the position, not that the mechanism of injury is specific (or
unique) to the job location.

                                             7
reading of the statute would result in an award of duty disability benefits for any injury

incurred on the job, which is plainly not what the legislature intended at the time of

Olson’s injury.5

              2.     PERA board’s scope of authority

       Olson next argues that the PERA board’s repeated use of the phrase “inherently

dangerous” during its discussion indicates that the PERA board exceeded the scope of its

statutory authority and issued a decision that is arbitrary and capricious. We find no

merit in this argument, noting that (1) Olson’s attorney repeatedly used “inherently

dangerous” rather than “inherent dangers”; (2) the supervisor of the PERA claims

department began the discussion by correctly reading the relevant statutory provisions to

the board and made correct references to the statutory language during the discussion;

and (3) the board adopted the ALJ’s findings, recommendation, and decision which

referenced and properly applied the “inherent danger” language of the statute.          We

conclude that the PERA board’s decision does not exceed the PERA board’s statutory

authority and is not arbitrary or capricious.

              3.     Substantial evidence

       Finally, we find no merit in Olson’s assertion that the PERA board’s decision is

not supported by “substantial evidence.” “Substantial evidence” has been defined as

“1) such relevant evidence as a reasonable mind might accept as adequate to support a


5
  Prior to 2007, the definition of “duty disability” included disabilities that arose out of
“any act of duty,” providing a much broader eligibility for duty disability benefits than is
available under the current statute. See 1999 Minn. Laws, ch. 222, art. 2, § 12 at 1445-
46, 1533.

                                                8
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.” Citizens Advocating

Responsible Dev. v. Kandiyohi Cnty. Bd. of Comm’rs, 713 N.W.2d 817, 832 (Minn.

2006) (quotations omitted).       Olson focuses on (1) the board’s many references to

“inherently dangerous” rather than “inherent dangers”; (2) his argument that descending

this spiral staircase was an inherent danger; (3) his claim that the board gave

disproportionate discussion to the reason for his need to relieve the fourth-floor control-

room deputy; and (4) the fact that only one board member discussed whether the inherent

danger of descending the staircase was “specific” to his position. We have rejected

Olson’s first two arguments as meritless when applied to a sufficiency-of-evidence

argument. Olson’s last two arguments may go to the weight of evidence but do not go to

the sufficiency of the evidence to support the PERA board’s decision.

        The record reflects the PERA board’s consideration of the application of the

statutory definition of duty disability to the circumstances of Olson’s injury, and the

record contains sufficient evidence to support the PERA board’s decision that Olson

failed to establish that he is entitled to duty disability benefits.

       Affirmed.




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