STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Clay R. Hupp, FILED
Petitioner Below, Petitioner June 13, 2014
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
vs) No. 13-0811 (Tyler County 11-AA-1) OF WEST VIRGINIA
West Virginia Consolidated Public
Retirement Board,
Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner Clay R. Hupp, by counsel Richard A. Monahan, appeals the order of the
Circuit Court of Tyler County, entered July 3, 2013, affirming the administrative decision of
Respondent West Virginia Consolidated Retirement Board to terminate petitioner’s partial-duty
retirement benefits. Respondent appears by counsel, J. Jeaneen Legato.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.
Petitioner was awarded disability retirement benefits based on duty-related hearing loss
from the State Police Death, Disability and Retirement System on October 30, 1999, when he
was approximately forty-six years old, after twenty-two years of service with the West Virginia
State Police. He subsequently served as the elected Sheriff of Tyler County from 2001 to 2008,
and then worked part-time as a security officer.
As a condition of his disability retirement, petitioner was required to undergo periodic
recertification examinations. For the most recent of these examinations, he was evaluated by Dr.
Marsha Bailey on behalf of respondent on August 10, 2010. Dr. Bailey reviewed petitioner’s
medical records, but did not perform independent testing. She reviewed petitioner’s audiograms
from 1999 and 2009, and noted no significant change between the two. She stated that petitioner
obtained hearing aids in 1999 or 2000 and upgraded to digital hearing aids in 2004. Dr. Bailey
concluded:
It is reasonable to assume that his hearing loss is a result of his work as a West
Virginia State Trooper. It is my understanding [petitioner] retired after 22 years of
service with the West Virginia State Police. He went on to serve as Sheriff of
Tyler County from January 2001 through December 31st, 2008. [Petitioner]
1
currently works as a part time Security Guard. Obviously [petitioner] is not
disabled for law enforcement work. [Petitioner’s] hearing loss is not uncommon
in the West Virginia State Police and we have several active Members with his
degree of hearing loss or worse that continue to work as a West Virginia State
Trooper.
Dr. Bailey also completed a recertification form based on her examination. In response to
question number six on the Medical Recertification Form (“In your opinion: Has the individual
recovered from his or her previously determined probable permanent disability to the extent that
he or she is able to perform adequately the essential duties of a law enforcement officer?”), Dr.
Bailey circled “yes” and wrote that petitioner “was never disabled as a law enforcement officer.”
Based on Dr. Bailey’s report, respondent voted to terminate petitioner’s disability retirement
benefits.
Petitioner requested an administrative hearing, and a hearing was conducted on February
1, 2011. The hearing examiner forwarded his recommended decision to respondent by letter
dated April 27, 2011, finding that petitioner could perform the duties required of a state trooper,
and noting: “Significant in this finding is that the only physician to opine on the subject was Dr.
Bailey, who stated, as noted above, that [petitioner] had improved.” Respondent adopted the
recommended decision on May 26, 2011. Petitioner appealed the decision to the Circuit Court of
Tyler County, and the circuit court entered its order on July 3, 2013, affirming the final order of
the retirement board based on its finding that petitioner is capable of performing the duties of a
state trooper. Petitioner appealed.
We have described the standard of review as follows:
In considering [petitioner’s] appeal, this Court applies the same standard of
review that the circuit court applied to the Board’s administrative decision. We
held in syllabus point one of Black v. State Consol. Public Retirement Bd., 202
W.Va. 511, 512, 505 S.E.2d 430, 431 (1998), that
“Upon judicial review of a contested case under the West Virginia
Administrative Procedure Act, Chapter 29A, Article 5, Section
4(g), the circuit court may affirm the order or decision of the
agency or remand the case for further proceedings. The circuit
court shall reverse, vacate or modify the order or decision of the
agency if the substantial rights of the petitioner or petitioners have
been prejudiced because the administrative findings, inferences,
conclusions, decisions or order are: ‘(1) In violation of
constitutional or statutory provisions; or (2) In excess of the
statutory authority or jurisdiction of the agency; or (3) Made upon
unlawful procedures; or (4) Affected by other error of law; or (5)
Clearly wrong in view of the reliable, probative and substantial
evidence on the whole record; or (6) Arbitrary or capricious or
characterized by abuse of discretion or clearly unwarranted
exercise of discretion.’ Syllabus Point 2, Shepherdstown V.F.D. v.
2
W.Va. Human Rights, 172 W.Va. 627, 309 S.E.2d 342 (1983).”
Furthermore, in syllabus point two of Black, we declared that
“In reviewing challenges to the findings and conclusions of the
circuit court, we apply a two-prong deferential standard of review.
We review the final order and the ultimate disposition under an
abuse of discretion standard, and we review the circuit court’s
underlying factual findings under a clearly erroneous standard.
Questions of law are subject to a de novo review.” Syllabus Point
2, Walker v. West Virginia Ethics Com’n, 201 W.Va. 108, 492
S.E.2d 167 (1997).
202 W.Va. at 513, 505 S.E.2d at 432.
McNeely v. W.Va. Consol. Pub. Ret. Bd., 226 W.Va. 553, 559, 703 S.E.2d 524, 530 (2010).
Petitioner sets forth seven assignments of error related to the discontinuation of his disability
retirement benefits pursuant to West Virginia Code § 15-2-31 (1994), which at the time
petitioner received his award of benefits provided:
The consolidated public retirement board may require any member who
has been or who shall be retired with compensation on account of disability to
submit to a physical and/or mental examination by a physician or physicians
selected or approved by the board and cause all costs incident to such examination
including hospital, laboratory, X-ray, medical and physicians’ fees to be paid out
of funds appropriated to defray the current expense of the division, and a report of
the findings of such physician or physicians shall be submitted in writing to the
consolidated public retirement board for its consideration. If from such report or
from such report and hearing thereon the retirement board shall be of the opinion
and find that such disabled member shall have recovered from such disability to
the extent that he or she is able to perform adequately the duties of a member of
the division, the board shall order such member to reassume active duty as a
member of the division and thereupon all payments from the death, disability and
retirement fund shall be terminated. If from the report or the report and hearing
thereon, the board shall be of the opinion and find that the disabled member shall
have recovered from the disability to the extent that he or she is able to engage in
any gainful employment but unable to adequately perform the duties required as a
member of the division, the board shall order the payment, in monthly
installments of an amount equal to two thirds of the salary, in the case of a
member retired under the provisions of section twenty-nine [§ 15-2-29] of this
article, or equal to one half of the salary, in the case of a member retired under the
provisions of section thirty [§ 15-2-30] of this article, excluding any
compensation paid for overtime service, for the twelve-month employment period
preceding the disability: Provided, That if the member had not been employed
with the division for twelve months prior to the disability, the amount of monthly
salary shall be annualized for the purpose of determining the benefit.
3
[Emphasis supplied.]
Petitioner’s first assignment of error is that the Board’s physician, when she determined
that petitioner was never disabled, thwarted the purpose of this statute, which is designed only to
allow the Board to determine whether existing disability continues. Though Dr. Bailey offered a
conclusion outside the bounds of the recertification examination inquiry when she stated that
petitioner was never disabled, we do not believe that her statement obfuscates the issue.1 Dr.
Bailey clarified that “hearing loss is not uncommon in the West Virginia State Police and we
have several active [m]embers with [petitioner’s] degree of hearing loss or worse that continue to
work. . . .” Regardless of Dr. Bailey’s opinion about petitioner’s degree of disability at the time
that he was certified to have a duty-related disability, she adequately conveyed the information
that was necessary for the recertification process: that petitioner currently is “able to perform
adequately the duties of a member of the division.”
Petitioner also argues that the evidence does not support the Board’s determination that
he is not disabled because (as explained in his second assignment of error) he suffers from
irreversible and progressively-worsening high-frequency hearing loss and (as explained in his
fourth assignment of error) his disability is improved only through the use of hearing aids, which
are prohibited by State Police rules regarding medical standards.2 We agree with respondent that
the particular rule cited by petitioner is contained within a series entitled “Cadet Selection” and,
inasmuch as petitioner is a long-time member of the department, is inapplicable to the question
before this Court. Furthermore, because there is no evidence that hearing aids are prohibited for
State Police officers, and because petitioner’s condition is improved through the use of hearing
aids, it is irrelevant that petitioner’s hearing loss is irreversible and progressive.3 Petitioner
obtained hearing aids after the certification of his disability for retirement purposes, and the use
1
Despite Dr. Bailey’s having opined that petitioner was “never disabled[,]” respondent
has not sought repayment of any portion of the benefits previously paid to petitioner.
2
At the time that petitioner was certified disabled, the West Virginia State Police had
enacted the following rule:
8.2.2.1. Hearing Acuity—Using an audiometer, the applicant should have
no average loss of 25 or more decibels at the 500, 1000, 2000, and 3000 Hertz
(Hz) levels in either ear with no single frequency loss in excess of 40.
W.Va. Code R. § 81-2-8.2.2.1 (June 15, 1998).
3
We recognize that “it is . . . well accepted by experts that once exposure to noise ceases,
hearing loss existing at that time must also cease any progression, unless other factors are
involved in creating the hearing loss.” Bilbrey v. Workers’ Comp. Comm’r, 186 W.Va. 319, 323,
412 S.E.2d. 513, 517 (1991). Petitioner has not performed duties as an officer of the State Police
in nearly fifteen years, and it is unlikely that any further progression in his hearing loss is
attributable to that employment. Petitioner appears to concede this in his petition for appeal.
4
of hearing aids has rendered him capable of performing the duties of a State Police officer.
Petitioner’s third assignment of error is that the Board unconstitutionally applied 2005
law—enacted approximately six years after he retired, and approximately twenty-eight years
after he first became a member of the State Police—when it revoked his disability retirement
benefits. Petitioner’s argument is based on Dr. Bailey’s affirmative response to question number
six on the Medical Recertification Form (“In your opinion: Has the individual recovered from his
or her previously determined probable permanent disability to the extent that he or she is able to
perform adequately the essential duties of a law enforcement officer?”), which compares a
retiree’s condition to a “law enforcement officer”4 rather than “a member of the division”5 as set
forth in the statute that was in effect at the time of petitioner’s retirement. As we noted above,
however, Dr. Bailey explained that several active State Police members continued to work with
degrees of hearing loss at least comparable to that of petitioner. It is clear that petitioner’s ability
was compared to the duties required of a member of the West Virginia State Police, and not
4
West Virginia Code § 15-2-31 (2009) provided:
The board may require any retirant who has been retired with
compensation on account of disability to submit to a physical and/or mental
examination by a physician or physicians selected or approved by the board and
cause all costs incident to the examination including hospital, laboratory, X-ray,
medical and physicians’ fees to be paid out of funds appropriated to defray the
current expense of the agency and a report of the findings of the physician or
physicians shall be submitted in writing to the board for its consideration. If, from
the report or from the report and hearing on the report, the board is of the opinion
and finds that the disabled retirant has recovered from the disability to the extent
that he or she is able to perform adequately the duties of a law-enforcement
officer, the board shall order that all payments from the fund to that disabled
retirant be terminated. If, from the report or the report and hearing on the report,
the board is of the opinion and finds that the disabled retirant has recovered from
his or her previously determined probable permanent disability to the extent that
he or she is able to engage in gainful employment but remains unable to
adequately perform the duties of a law-enforcement officer, the board shall order
the payment, in monthly installments of an amount equal to two thirds of the
salary, in the case of a retirant retired under the provisions of section twenty-nine
[§ 15-2-29] of this article or equal to one half of the salary, in the case of a retirant
retired under the provisions of section thirty [§ 15-2-30] of this article, excluding
any compensation paid for overtime service, for the twelve-month employment
period immediately preceding the disability award: Provided, That if the retirant
had not been employed with the Fund for twelve months immediately prior to the
disability award, the amount of monthly salary shall be annualized for the purpose
of determining the benefit.
(Emphasis supplied.)
5
See W.Va. Code § 15-2-31 (1994).
5
simply of a general law enforcement officer.
In his fifth and sixth assignments of error, petitioner argues that the circuit court failed to
acknowledge the precedential value of a prior hearing examiner’s recommended decision
(involving a different retiree) stating that hearing aids are insufficient to address the “abnormal
life-threatening situations” that might be encountered by hearing-impaired officers, and further
ignored the Circuit Court of Kanawha County’s decision (involving that same retiree) that found
the termination of benefits was inadequate in light of the lack of evidence of medical
improvement.6 Petitioner urges us to apply these principles to the case before us. With regard to
the precedential value of administrative agency decisions, this Court has indicated that a
lack of uniformity is unavoidable—after all, administrators are not automatons—
and does not in and of itself invalidate agency action. While a certain amount of
asymmetry is lawful, an agency may not adopt[] significantly inconsistent policies
that result in the creation of conflicting lines of precedent governing the identical
situation. The precept counseling avoidance of inconsistent administrative
policies at least demands that when an agency departs significantly from its own
precedent, it must confront the issue and explain the reasonableness of its current
position. Before this Court, an agency will not be permitted to [flit]
serendipitously from case to case, like a bee buzzing from flower to flower,
making up its rules and policies as it goes along.
State ex rel. Hoover v. Berger, 199 W.Va. 12, 19, 483 S.E.2d 12, 19 (1996) (quotations and
citations omitted). Similarly, circuit court decisions in and of themselves have no precedential
value in this Court. State ex rel. Miller v. Stone, 216 W.Va. 379, 382, 607 S.E.2d 485, 488
(2004). The recommended decision cited by petitioner does not appear to have been ultimately
adopted by respondent, and we thus are not faced with the concern described in Hoover that
respondent has a pattern of departing from its own precedent.
Finally, petitioner argues that the circuit failed to liberally apply disability statutes and
regulations. This assignment of error, however, is supported only by a short recitation of case
law citations, and is presented in a conclusive fashion, without reference to the appendix record
on appeal. Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure requires that
petitioner’s brief contain an argument demonstrating clearly the points of fact and law presented.
That rule also requires that such argument “contain appropriate and specific citations to the
record on appeal, including citations that pinpoint when and how the issues in the assignments of
error were presented to the lower tribunal. The Court may disregard errors that are not
adequately supported by specific references to the record on appeal.” Id. Petitioner’s final
assignment of error is wholly unsupported by evidence in that it is completely devoid of
appropriate and specific citations as contemplated by our rule. Thus, we need not further
consider this assignment of error.
6
See Burdette v. W.Va. Consol. Pub. Ret. Bd., Civil Action No. 11-AA-131 (Kan. County
Cir. Ct. May 18, 2012).
6
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: June 13, 2014
CONCURRED IN BY:
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
DISSENTING:
Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Ketchum, concurring:
I concur in the reasoning of the majority and write separately to draw attention to an
additional issue. In 1999, when petitioner took disability retirement benefits, W.Va. Code § 15-2
29 (1995) provided, in part:
. . . The member thereafter shall be entitled to receive annually and there
shall be paid [benefits] to such member from the death, disability and retirement
fund in equal monthly installments during the lifetime of such member; or until
the member attains the age of fifty; or until such disability shall sooner terminate .
..
(Emphasis supplied.) The language highlighted above—“or until the member attains the age of
fifty”—remained in West Virginia Code § 15-2-29 until the passage of legislation that became
effective in June of 2007.7
When petitioner appeared for his recertification examination on August 10, 2010, he was
approximately fifty-six years old8, had been a member of the West Virginia State Police for
7
The legislature enacted a new retirement system known as The West Virginia State
Police Retirement Act, W.Va. Code § 15-2A-1 to 15-2A-19, in 1994. It is designed to govern
members hired March 12th of that year and after. See Booth v. Sims, 193 W.Va. 323, 331 n. 6,
456 S.E.2d 167, 175 n. 6 (1994). Petitioner was hired in 1977.
8
Petitioner’s birth date has been redacted from documents contained in the appendix
record on appeal, and his precise age is thus not clear. Neither party disputed the circuit court’s
finding that petitioner was born in 1953.
7
almost thirty-three years, and was credited with nearly three years of military service9. Petitioner,
then, reached the age of fifty at a time when the statute required that his disability retirement
benefits be converted to general retirement benefits upon his attaining the age of fifty. Inasmuch
as petitioner’s disability retirement benefits should earlier have been discontinued on the basis of
his age, the circuit court did not err when it affirmed respondent’s decision to terminate those
benefits.
9
Similarly, the law in effect at the time that petitioner applied for and received disability
retirement benefits required that “[t]he retirement board shall retire any member of the division
of public safety when the member has both attained the age of fifty-five years and completed
twenty-five years of service as a member of the division, including military service credit. . . .”
W.Va. Code § 15-2-27(a) (1995). It further provided that “[w]hen a member has or shall have
served twenty years or longer but less than twenty-five years as a member of the division and
shall be retired under any of the provision of this section before he or she shall have attained the
age of fifty years, payment of monthly installments of the amount of retirement award to such a
member shall commence on the date he or she attains the age of fifty years. W.Va. Code § 15-2
27(c) (1995). The circuit court noted that petitioner applied for and began receiving regular
retirement benefits on December 1, 2010, on the basis of twenty-five years of service, with
twenty-two of those spent in contributing service and three spent in military service.
8