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
                                                                    Oct 09 2012, 9:01 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




                                    October 9, 2012


                              OPINION - FOR PUBLICATION


ROBB, Chief Judge
                                  Case Summary and Issue

        Paul Bryson suffered back injuries while on-duty and became unable to perform his

duties as a firefighter. After administrative proceedings, the Indiana Public Employees

Retirement Fund Board (“PERF”) determined Bryson was entitled to Class 2 impairment

disability benefits pursuant to Indiana Code section 36-8-8-12.5. The trial court set aside

PERF’s decision and concluded Bryson was entitled to Class 1 impairment disability

benefits. PERF appeals, raising the sole issue of whether the trial court erred by setting aside

PERF’s decision and concluding Bryson is entitled to Class 1 impairment disability benefits.

Concluding the trial court did not err, we affirm.

                                Facts and Procedural History

        Beginning in 2001, Bryson was employed as a firefighter for the Brownsburg Fire

Territory and was a member of the 1977 Police Officers’ and Firefighters’ Pension and

Disability Fund (the “1977 Fund”). In 2008 and 2009, Bryson suffered a series of three

injuries while working. On May 21, 2008, Bryson and other Brownsburg firefighters were

attempting to reattach the firehouse bay door. Bryson stood on top of a ladder and “resist[ed]

the force of a commercial garage door opener without getting knocked off” the ladder.

Appendix of Appellee at 23. In the process, he felt a sharp pain in the left side of his lower

back. Bryson sought medical attention that same day. Dr. Cyndi Speelman diagnosed

Bryson with a lumbar strain, prescribed medication and a rehabilitative exercise plan, and

restricted his physical labor for five days.




                                               2
       In her notes, Dr. Speelman also states, “[Bryson] denies any history of serious back

injuries, though he has had occasional strains and sprains. He had a similar episode about 3

years ago (not work-related) for which he did not seek medical treatment and which resolved

in a few days. He has also seen a chiropractor occasionally.” Appendix of Appellant at 205

(parentheses in original). Lieutenant Thaddeus Dolzall, Bryson’s supervisor, later testified

that Bryson had never come to him before with a substantial injury, but that he did after the

May 21 incident. Although Bryson was cleared to engage in regular work duties after a week

of restricted activity, Lieutenant Dolzall also stated that Bryson’s work performance slowed

down in the months after the injury.

       On December 17, 2008, another incident occurred. Bryson and other firefighters

were performing “bailout drills,” wherein a firefighter, wearing protective gear weighing at

least sixty-five pounds, would jump out of a second story window and rappel down the side

of the building using a rope that was wrapped around his waist. Bryson performed this drill,

followed by a similar bailout drill that required jumping out of a window and getting to the

ground using a ladder. When Bryson completed the second bailout drill, he was ordered to

move the large ladder. Immediately after moving the ladder, Bryson took a step away from

the ladder “and then just buckled. . . . just like a wounded animal. He just collapsed[.]”

App. of Appellee at 38.

       Bryson sought medical attention with Dr. Rebecca Peters, who diagnosed Bryson with

a lumbar strain, prescribed medication, and restricted his ability to perform manual labor at




                                             3
work for one week. Even after Bryson returned to unrestricted work, Lieutenant Dolzall

stated that Bryson was obviously hurt and could not perform well.

       On August 1, 2009, Bryson suffered a third incident while on duty. Bryson helped the

department test a fire hose, which entailed pulling about three-hundred feet of a fire hose off

a fire truck. Lieutenant Dolzall estimated the hose weighed approximately sixty to eighty

pounds per one-hundred feet. After finishing the test, Bryson complained to Dolzall that he

was in pain. The next morning he sought medical care. Dr. Keith Huff diagnosed Bryson

with a left sacroiliac joint sprain and prescribed medication.

       Bryson subsequently consulted with his own physician, Dr. Thomas Black, who

diagnosed Bryson with degenerative disc disease and herniated disc syndrome.                In

September, Bryson also consulted with Dr. Van Evanoff, Jr., who prescribed vicodin, steroid

injections, and physical therapy, and recommended Bryson return to work but not do any

heavy lifting or repetitive bending. Ultimately, Dr. Evanoff determined Bryson’s degree of

impairment to be 0%. Bryson was also referred to Dr. Robert Huler, who performed an MRI

and concluded the results demonstrated multilevel lumbar degenerative disk disease, two

small disk herniations, and a small disk bulge. In his recommendations, Dr. Huler stated, “I

do have a great concern that [Bryson] will continue to suffer recurrent injuries as his

symptoms appear to be precipitated with relatively minor twisting motions most likely

secondary to his known and pre-existent lumbar degenerative disk disease.” App. of

Appellant at 230.




                                              4
       Bryson requested a determination of disability with the Brownsburg Fire Territory’s

Local Pension Board. In March 2010, the Local Pension Board held a hearing and

determined Bryson had a Class 1 covered impairment pursuant to Indiana Code sections 36-

8-8-12.3(b) and -12.5(b). The 1977 Fund, however, issued a determination finding Bryson’s

impairment was Class 2 rather than Class 1.          After Bryson appealed the Fund’s

determination, an administrative law judge (“ALJ”) held a hearing and issued a

recommended order including findings of fact and conclusions of law. The ALJ also

concluded Bryson’s impairment was a Class 2 impairment. PERF’s medical consultant, Dr.

Omkar Markland, reviewed Bryson’s medical history. Dr. Markland informed PERF in a

letter that “I agree with the evaluations conducted previously on Mr. Bryson by Dr. Evanoff

and Dr. Huler. He has multi-level degenerative lumbar disk disease with probable herniation

of lumbar disk. These degenerative changes have been pre-existing to the initial work-

related injury he had in May 2008.” Id. at 107. Dr. Markland also noted that at the time

Bryson was functioning very well, but that even mild to moderate physical activity could

aggravate his condition. For these reasons, Dr. Markland determined Bryson’s degree of

impairment to be 8%. PERF affirmed the ALJ’s recommended order.

       Bryson petitioned the trial court for judicial review, challenging PERF’s conclusion.

After a hearing, the trial court issued an order setting aside PERF’s final order and

concluding Bryson’s impairment qualified as a Class 1 impairment. PERF now appeals.

Additional facts will be supplied as appropriate.




                                             5
                                  Discussion and Decision

                                   I. Standard of Review

       Under the Administrative Orders and Procedures Act (“AOPA”), a court may reverse

an agency’s decision only if the agency action is:

       (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
       with law;
       (2) contrary to constitutional right, power, privilege, or immunity;
       (3) in excess of statutory jurisdiction, authority, or limitations, or short of
       statutory right;
       (4) without observance of procedure required by law; or
       (5) unsupported by substantial evidence.

Ind. Code § 4-21.5-5-14(d). Appellate courts stand in the same position as the trial court, and

review is limited to the issues set forth in the AOPA. Pendleton v. McCarty, 747 N.E.2d 56,

61 (Ind. Ct. App. 2001), trans. denied. “We give deference to an administrative agency’s

findings of fact, if supported by substantial evidence, but review questions of law de novo.”

Bd. of Comm’rs of LaPorte Cnty. v. Great Lakes Transfer, LLC, 888 N.E.2d 784, 789 (Ind.

Ct. App. 2008). Statutory interpretation is a question of law. Id.

       In such [statutory] interpretation, the express language of the statute and the
       rules of statutory interpretation apply. We will examine the statute as a whole,
       and avoid excessive reliance on a strict literal meaning or the selective reading
       of words. Where the language of the statute is clear and unambiguous, there is
       nothing to construe. However, where the language is susceptible to more than
       one reasonable interpretation, the statute must be construed to give effect to
       the legislature’s intent. The legislature is presumed to have intended the
       language used in the statute to be applied logically and not to bring about an
       absurd or unjust result.

In re J.J., 912 N.E.2d 909, 910 (Ind. Ct. App. 2009) (quotation omitted). Although pension

fund statutes should be liberally construed in favor of their intended beneficiaries, we should


                                              6
not read into such statutes obligations against pension funds and the taxpayers which the

legislature did not intend. Hilligoss v. LaDow, 174 Ind. App. 520, 529, 368 N.E.2d 1365,

1370 (1977).

                           II. Indiana Code Section 36-8-8-12.5

       The Indiana Code chapter governing the 1977 Fund provides the procedures for a

member of the 1977 Fund to request disability benefits. Indiana Code section 36-8-8-12.3

provides that a hearing shall be conducted to determine whether a member has a covered

impairment at the member’s request. That section also provides “[a] covered impairment is

an impairment that permanently or temporarily makes a fund member unable to perform the

essential function of the member’s duties . . . .” Ind. Code § 36-8-8-12.3(b).

       Another section of that chapter provides:

       (b) At the same hearing where the determination of whether the fund member
       has a covered impairment is made, the local board shall determine the
       following:
       (1) Whether the fund member has a Class 1 impairment. A Class 1 impairment
       is a covered impairment that is the direct result of one (1) or more of the
       following:
               (A) A personal injury that occurs while the fund member is on duty.
               ***
       (2) Whether the fund member has a Class 2 impairment. A Class 2 impairment
       is a covered impairment that is:
               (A) a duty related disease. A duty related disease means a disease
               arising out of the fund member’s employment. A disease shall be
               considered to arise out of the fund member’s employment if it is
               apparent to the rational mind, upon consideration of all of the
               circumstances, that:
                      (i) there is a connection between the conditions under which the
                      fund member’s duties are performed and the disease;
                      (ii) the disease can be seen to have followed as a natural incident
                      of the fund member’s duties as a result of the exposure
                      occasioned by the nature of the fund member’s duties; and

                                               7
                     (iii) the disease can be traced to the fund member’s employment
                     as the proximate cause; . . .
                     ***
       (3) Whether the fund member has a Class 3 impairment. A Class 3 impairment
       is a covered impairment that is not a Class 1 impairment or a Class 2
       impairment.

Ind. Code § 36-8-8-12.5(b).

       It is undisputed that Bryson has a covered impairment. The issue is whether his

covered impairment is Class 1, as he argues, or Class 2, as PERF argues. The parties do not

point to, nor do we find, prior Indiana cases interpreting Indiana Code section 36-8-8-

12.5(b). The ALJ reasoned that the requirement that a covered impairment be a “direct

result” of a work injury in order to qualify as a Class 1 impairment necessitates that the work

injury be the “sole and independent cause of the impairment.” App. of Appellant at 97.

Because the ALJ determined Bryson’s covered impairment was a “progressive, pre-existing

disease that may have been exacerbated by firefighting duties,” the ALJ concluded Bryson’s

work injuries were not the sole and independent cause of his covered impairment, and

therefore Bryson’s impairment was not a Class 1 impairment.

       The trial court, on the other hand, determined Bryson’s covered impairment was

“severe, and at times disabling back pain,” but it also noted that “[e]ven a minor injury or an

injury that merely aggravates pre-existing conditions can be a ‘personal injury.’” Id. at 81-

82. The trial court consequently concluded that “[w]hether one considers [Bryson]’s covered

impairment to be ‘back pain’ or ‘degenerative disc disease,’ it is the direct result of his on

duty injuries.” Id. at 82.



                                              8
       PERF argues the ALJ’s interpretation of Indiana Code section 36-8-8-12.5(b) was

reasonable, and, as such, the trial court should have deferred to the ALJ’s judgment. See

LTV Steel Co. v. Griffin, 730 N.E.2d 1251, 1257 (Ind. 2000) (“An interpretation of a statute

by an administrative agency charged with the duty of enforcing the statute is entitled to great

weight, unless this interpretation would be inconsistent with the statute itself.”); cf. Pierce v.

State Dept. of Corr., 885 N.E.2d 77, 89 (Ind. Ct. App. 2008) (“[A]n agency’s incorrect

interpretation of a statute is entitled to no weight. If an agency misconstrues a statute, there

is no reasonable basis for the agency’s ultimate action and the trial court is required to

reverse the agency’s action as being arbitrary and capricious.”) (citations omitted). We

disagree with the ALJ’s interpretation of Indiana Code section 36-8-8-12.5(b).

       The ALJ’s interpretation of the statute is that it requires the on-duty injury to be the

sole and independent cause of a resulting impairment in order for the impairment to be Class

1. In application, this would necessitate that the fund member was perfectly healthy and

without any pre-existing conditions, at least in relation to the part of the body impacted by an

on-duty injury, in order to qualify as Class 1. We do not think that an impairment being the

“direct result” of a personal injury sustained while on duty requires this exclusivity. We

conclude 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-


                                                9
existing condition, so long as the pre-existing condition did not previously prevent the fund

member from performing his or her job duties.1

        Bryson’s supervisor testified that Bryson was one of the hardest working firefighters

he oversaw prior to the series of on-duty injuries, and that he could not recall Bryson ever

notifying him of any substantial injuries or bouts of pain in the seven years before these

injuries. After his third injury, doctors concluded he had degenerative disc disease and that it

pre-existed any of the injuries. While the only evidence in the record supports the fact that it

was pre-existing, before the string of injuries Bryson was more than capable of performing

his job duties, and after the injuries he became so impaired that he was determined to have a

covered impairment for the purposes of Indiana Code section 36-8-8-12.3(b). Although Dr.

Evanoff gave Bryson a 0% impairment rating, Dr. Markland determined his impairment

rating was 8%. The ALJ’s recommended order, which PERF affirmed, included a finding of

fact that “Bryson’s current condition is that he feels worse than he ever has. He cannot sleep,

cannot sit comfortably, and cannot stand. When he rides a lawnmower it hurts because he

bounces up and down. Bryson has not returned to work.” App. of Appellant at 93. The

evidence undisputedly shows Bryson had a pre-existing condition, but it also reveals his pre-

existing condition did not impair his ability to work prior to the string of injuries here at




        1
          PERF argues the trial court erred by not affirming the ALJ’s finding that Bryson’s covered
impairment was degenerative disk disease because Bryson did not specifically object to that finding. Even if
PERF is correct, we conclude such error would be harmless error because of our conclusion that Bryson’s
having had a pre-existing condition is immaterial to whether his impairment was the direct result of his on-duty
injuries where his pre-existing condition in no way impacted his ability to perform his job duties prior to the
injuries.

                                                      10
issue. Thus, we conclude Bryson’s impairment was a direct result of the injuries that

occurred while he was on duty, and he therefore has a Class 1 impairment.

                                         Conclusion

       We conclude Bryson has a Class 1 impairment because despite having a medical

condition that pre-existed his on-duty injuries, his pre-existing condition did not impair his

ability to perform his job duties prior to the injuries. Thus, his covered impairment is the

“direct result” of his three on-duty personal injuries for the purposes of Indiana Code section

36-8-8-12.5(b)(1) and the trial court did not err in setting aside PERF’s determination

otherwise.

       Affirmed.

BAKER, J., concur.

BRADFORD, J., dissents with opinion.




                                              11
                              IN THE
                    COURT OF APPEALS OF INDIANA

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




BRADFORD, Judge, dissenting.

       I agree with the majority’s statutory interpretation that an on-duty personal injury that

exacerbates a pre-existing medical condition can “direct[ly] result” in a Class 1 covered

impairment under Indiana Code section 36-8-8-12.5(b)(1). However, because I do not

believe Paul Bryson’s covered impairment satisfies that standard, I respectfully dissent.

       Upon review, the record reveals that Bryson’s covered impairment is degenerative

disc disease, whereas his three on-duty personal injuries were diagnosed as lumbar strains.

The record also shows that Bryson recovered from these injuries and was released to work

accordingly without restriction. Most notably, after Bryson’s third injury, “Dr. Evanhoff

gave him an impairment rating of 0% of the whole body….” Appellant’s App. p. 90.

       Although the medical evidence suggests that Bryson’s disease rendered him

susceptible to recurrent lumbar strains and enhanced resulting pain, his three actual injuries



                                              12
were labeled, “secondary.” Appellant’s App. pp. 90, 94. As such, “[Bryson’s injurious]

activities did cause him physical pain, but the changes seen in the lumbar spine are not the

result of those incidents.” Appellant’s App. p. 93. His lumbar strains did not cause or

exacerbate his degenerative disc disease. Consistent with this conclusion:

       When asked what keeps Bryson from performing the essential function of the
       firefighter, Dr. Markland agreed with Dr. Huler that Bryson is subject to acute
       bouts of pain. Because these bouts are transient, he can recover, but he is more
       prone to have pains in the future. Bryson is unable to perform as a firefighter
       because he has a greater possibility of exacerbating pain. Therefore in Dr.
       Markland’s opinion, Bryson has a covered impairment.

Appellant’s App. p. 93.

       I would conclude that Bryson’s personal injury did not exacerbate a pre-existing

condition as required for Class 1 coverage. Rather, Bryson’s degenerative disc disease puts

him at risk of reinjury with debilitating pain. Given Bryson’s safety-sensitive position as a

firefighter, this risk renders him unable to perform the duties of his employment. The record

supports the conclusion that, among other things, Bryson’s work as a firefighter generally

contributed to his degenerative disc disease. Therefore, he should be entitled to Class 2

coverage.

       I would reverse the trial court’s judgment and affirm the agency’s decision on these

other grounds.




                                             13
