No. 94-296
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
STEPHEN P. WEBER,
Petitioner and Respondent,
PUBLIC EMPLOYEES' RETIREMENT BOARD,
Respondent and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Thomas C. Honzel, Judge presiding
COUNSEL OF RECORD:
For Appellant:
Kelly A. Jenkins, Special Assistant Attorney
General, Helena, Montana
For Respondent:
Eric B. Thueson, John A. Kutzman, Attorneys
at Law, Helena, Montana
Submitted on Briefs: January 12, 1995
Decided: March 9, 1995
Filed:
Cl&k
Justice W. William Leaphart delivered the Opinion of the Court.
The Board of Administration of the Public Employees Retirement
Division (PERB) appeals from the decision of the District Court of
the First Judicial District, Lewis and Clark County, which reversed
the decision of PERB denying Stephen Weber (Weber) disability
retirement benefits under Title 19, Chapter 3, Part 10, MCA.
Issues
1. Did the District Court improperly assume jurisdiction over
Weber's petition for judicial review which was filed more than
thirty days after Weber was personally notified of the
Administrative decision but within thirty days of the written
memorandum of decision?
2. Did the District Court commit reversible error in
concluding that PERB misapprehended the effect of the medical
deposition testimony of Dr. Etter?
Backsround
From 1981 through September 9 of 1988 when he resigned his
position, Weber was the assistant administrator of the Tort Claims
Division (now known as the Insurance and Legal Division) for the
Montana Department of Administration. Weber suffers from Multiple
Sclerosis (MS), a disorder which affects the brain and nervous
system and is characterized by the appearance of "plaques" (scar
tissue) on the nerves which can disrupt the transmission of nerve
impulses. The symptomology of the disease includes numbness; lost
Or reduced mobility; loss of strength and coordination;
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deterioration of vision; and deterioration of speech. Another
aspect of this disease is that it is often characterized by
alternating periods of increased and decreased symptoms
("exacerbations" and "remissionI'), such that an MS victim may
appear normal during a period of remission, which may last for
days, weeks, or even months. Additionally, MS is known to be
aggravated by physical and emotional stress.
Weber has had MS at least since the early 1970s. Although he
was tentatively diagnosed with MS in 1976, he was not conclusively
diagnosed until June of 1991, when he underwent an MRI (Magnetic
Resonance Image) of his head. He had experienced symptoms
consistent with MS over the twenty-year period beginning around
1970, but given the non-debilitating nature of his symptoms for
most of that time, along with the invasive nature of past
techniques for confirming MS (spinal tap), his physicians had
elected not to aggressively pursue a diagnosis. Consequently,
Weber did not know he had MS when he left his job with the State in
September of 1988, at which time he was suffering from what are now
known to have been stress related complications of the disease,
including double vision, loss of concentration and energy, ringing
in his ears, and slurred speech. At the time of leaving his job in
1988, Weber attributed those symptoms to work-related stress.
In August of 1988, Weber learned that his position was being
reclassified from pay grade level 16 to level 14. He believed that
this pay reduction, as well as other problems he was having with
his superiors at the time, was in retaliation for his refusal to
authorize payment of what he felt was an inflated claim submitted
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to his department by another State agency, an opinion with which
the Montana State Auditor concurred.
In August of 1989, Weber sued the State of Montana, alleging
that his superiors' treatment of him prior to his resignation
created an intolerable work environment and amounted to a
constructive discharge. On September 27, 1990, a jury agreed and
awarded Weber more than $30,000 in damages. This verdict was
upheld by the Montana Supreme Court on May 5, 1992, in Weber v.
State of Montana (1992), 253 Mont. 148, 831 P.2d 1359.
After learning that the physical problems he was experiencing
at the time he left his job were in fact stress induced
exacerbations of MS, Weber filed for disability retirement benefits
from the Public Employees' Retirement System (PERS) on August 6,
1991. In order to qualify for PERS disability benefits, the
claimant must prove that he has become unable to perform the duties
of his job by reason of physical or mental incapacity while in
active service. Section 19-3-1002, MCA. Furthermore, the
disability must be permanent, or of extended or uncertain duration
as determined by PERB on the basis of competent medical opinion.
Section 19-2-303(15), MCA.
In his application for disability benefits, Weber alleged that
he became unable to effectively perform his job at the Tort Claims
Division by August of 1988. At the hearing, Weber and his wife
testified regarding his physical condition in 1988. Weber also
presented the deposition testimony of his physician, Helena
internist Dr. Harry Etter, who testified that in his opinion, and
to a reasonable degree of medical certainty, Weber was disabled
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from performing his job by the.time he resigned his position in
1988.
On December 19, 1991, PERB denied Weber's application for
benefits. Weber requested administrative review of this denial
pursuant to the Montana Administrative Procedure Act, §§ 2-4-101
through 2-4-711, MCA. A contested case hearing was held on August
28, 1992, and on February 4, 1993, the hearing examiner recommended
that Weber's application for benefits be denied. On April 29,
1993, the parties presented oral argument to PERB concerning their
objections to the hearing examiner's proposed findings and
conclusions. On May 17, 1993, PERB adopted all of the hearing
examiner's proposed findings of fact, all but one of the
conclusions of law, and adopted the examiner's recommendation that
Weber's application for benefits be denied.
In support of its denial of benefits, PERB relied on previous
statements made by Weber which tended to show that he resigned his
position with the State in order to preserve the higher pay-out of
his unused benefits, and not because he believed himself to be
disabled; that he believed himself capable of continuing in his
job; that he offered to remain in his job if his pay would not be
cut; that he failed to seek medical attention for what he claimed
was a particularly difficult exacerbation; and that in the course
of his wrongful discharge trial, he characterized his health
subsequent to his military service as excellent.
Although PERB did not employ a medical expert, it nonetheless
concluded that Weber was not disabled at the time of his
resignation. PERB relied on Dr. Etter's response to a hypothetical
5
question posed by PERB's counsel &cross-examination to support
its denial of Weber's application for disability benefits.
Issue 1
Did the District Court improperly assume jurisdiction over
Weber's petition for judicial review which was filed more than
thirty days after Weber Was personally notified of the
Administrative decision but within thirty days of the written
memorandum of decision?
PERB contends that its final decision was stated in the record
at the April 29, 1993 hearing, at which time Weber and his
attorneys were present and were personally notified of its
decision. On May 5, Weber requested a written memorandum of
decision, as allowed by § Z-4-623(5), MCA. Accordingly, on May 17,
1993, a written memorandum of decision was mailed to Weber and his
attorneys. Weber's petition for judicial review was filed June 8,
1993. PERB contends that the thirty-day period for filing a notice
of appeal began to run from April 29, 1993, the date PERB orally
announced its decision as opposed the May 17, 1993, the date it
forwarded a written memorandum of decision to Weber. The minutes
of the April 29, 1993, hearing indicate that the PERB attorney,
"explained that the next step, after the Board reaches its final
determination, when it rules on the exceptions before it and
renders a final decision in writing, is that under the law either
party has a right to petition [the] District Court for judicial
review."
Under the Montana Administrative Procedure Act, a party
seeking judicial review of an agency decision must petition for
6
such review "within 30 days after service of the final decision of
the agency . . . .'I Section 2-4-702(2) (a), MCA. We find, in the
case at hand, the decision of the agency did not become "final" and
was not served until May 17, 1993, when PERB issued a written
document entitled "Findings of Fact, Conclusions of Law and Final
Decision." Weber's petition for judicial review was filed within
thirty days of May 17, 1993 and therefore was timely.
Issue 2
Did the District Court commit reversible error in concluding
that PERB misapprehended the effect of the medical deposition
testimony of Dr. Etter?
In its written memorandum, the District Court acknowledged
that, normally, its review of an administrative decision is
restricted to a determination as to whether or not the
administrative findings of fact are clearly erroneous, and whether
the agency's interpretation of the law is correct. Steer, Inc. v.
Dep't of Revenue (1990), 245 Mont. 470, 474, 803 P.7.d 601, 603.
The District Court then relied on this Court's decision in Shupert
v. Anaconda Aluminum Co. (1985), 215 Mont. 182, 187-88, 696 P.2d
436, 439, for the proposition that the reviewing court is in as
good a position as the lower tribunal to evaluate deposition
testimony. Roadarmel v. Acme Concrete Co. (1989), 237 Mont. 163,
168, 772 P.2d 1259, 1262.
In Shupert, this Court reviewed a decision by the Workers'
Compensation Court and stated as follows:
Ordinarily, this Court will not substitute its judgment
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for that of the Workers' Compensation Court in
determining the weight and credibility to be given
testimony. The reason for this is that this Court defers
to the lower court's assessment of the demeanor and
credibility of witnesses. Rule 52 (a) , M.R.Civ.P.
However, when the critical evidence, particularly medical
evidence, is entered by deposition, we have held that
"this Court, although sitting in review, is in as good a
position as the Workers' Compensation Court to judge the
weight to be given such record testimony, as
distinguished from oral testimony, where the trial court
actually observed the character and demeanor of the
witness on the stand. Hert v. J.J. Newberry Co. (1978),
178 Mont. 355, 359-60, 584 P.2d 656, 659.
Shuuert, 696 P.2d at 439.
The District Court was correct in concluding that there is no
operative distinction between our reasoning in Shuoert and the
facts in the present case where the testimony of Dr. Etter was by
way of deposition. That being the case, the District Court was in
as good a position as the hearing examiner to judge the weight of
Dr. Etter's deposition medical testimony.
In applying the Shupert rationale that a reviewing court is in
as good a position as the trier of fact to review deposition
testimony, it must be noted that the standard of review on the
overall case remains the same. In McIntyre v. Glen Lake Irrigation
District (1991), 249 Mont. 63, 813 P.2d 451, we reviewed a decision
of the Workers' Compensation Court which was based upon deposition
medical testimony as well as live testimony from the claimant and
his spouse. In McIntvre we held that, although we could make an
independent review of the deposition testimony, in the final
analysis, we were still restricted to determining whether there was
substantial credible evidence to support the decision of the
Workers' Compensation Court. McIntyre, 813 P.2d at 454.
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The present case differs procedurally from McIntvre where the
Workers' Compensation Court had heard live testimony from the
claimant and had reviewed deposition medical testimony. Here, the
District Court did not hear any live testimony. Rather, it was
reviewing the proceedings of PERB which adopted a proposed decision
from a hearing examiner who heard testimony and reviewed both
medical and non-medical depositions. In other words, in the
present case, the live testimony is two steps further removed from
this Court than in McIntvre. Thus, unlike McIntvre, we are not
reviewing the district court to determine whether there is
substantial credible evidence to support its decision. Rather, we
are reviewing the District Court to determine whether it, in turn,
properly applied the correct standard of review to the
administrative decision of PERB. That is, did the District Court
determine whether the administrative findings of fact were clearly
erroneous and whether the agency's interpretation of the law was
correct. We conclude that the District Court, although engaging in
an independent review of the medical deposition, specifically
applied the three-part clearly erroneous standard. State Comp.
Mutual Insurance Fund v. Lee Rost Logging (19921, 252 Mont. 97,
102, 827 P.2d 85, 88. Further, we determine that the District
Court correctly applied that standard.
In support of Weber's claim for disability benefits, Dr. Etter
testified (by way of deposition) that Weber had been suffering from
MS for at least the last twenty years, but that the disease had not
become disabling until 1988 when Weber underwent a period of job
stress. He indicated that the MS symptoms had been progressively
9
worsening since the stressful work events in 1988. Accordingly,
Dr. Etter concluded that, since 1988, the MS had continuously
disabled Weber from the kinds of accounting and administrative
functions he performed for the State.
Weber, however, did not realize that he was suffering from MS
until he was definitively diagnosed with MS in 1991 when he
underwent an MRI. It was then that he realized that MS, coupled
with the stress of his job with the State, caused the deterioration
of his job performance in 1988. He therefore filed for PERS
disability retirement benefits on August 6, 1991.
PERB did not present any medical testimony of its own. PERB
does not deny that Weber has MS now or that he has had the disease
for a number of years including the time period surrounding the
stressful events in the late summer and early fall of 1988.
Further, the agency does not dispute that MS is a progressive and
debilitating disease with symptoms that come and go. The agency
agrees that Weber is presently disabled from the last job he held
with the State of Montana.
Since PERB did not present any medical testimony of its own,
Dr. Etter's testimony and medical conclusions were uncontradicted.
The medical opinions of a claimant's treating' physician are
entitled to special weight and should not be disregarded absent
specific legitimate reasons for doing so. Embrey v. Bowen (9th
Cir. 19881, 849 F.2d 418, 421.
In contending that Weber was not disabled at the time of his
resignation, PERB relied on previous statements made by Weber in
1988 at which time Weber indicated that he was resigning his
10
position in order to preserve the higher pay-out of his unused
benefits--not because he believed himself to be disabled. As the
District Court acknowledged, these statements, made by Weber in
1988, do nothing more than show that Weber did not believe himself
to be disabled at that point in time. The statements do not
conclusively prove that he was not, in fact, disabled at that time.
PERB places considerable weight on Dr. Etter's response to a
hypothetical question posed by PERB's counsel. Counsel for PERB
asked Dr. Etter to assume the following: that he had been shown
statements by Weber indicating that Weber felt he was capable of
performing the job functions that he had at the State; that Weber
felt so at the time he terminated his employment at the State; that
he felt so for some extended period of time after that; and that in
fact Weber anticipated that he could do that job and do the job of
a CPA in private practice. Counsel for PERB then posed the
following question, "on the basis of that information, would you
believe that he was completely disabled from performing his job
functions with the State?" Dr. Etter responded, "if he told me
that, then I would not think he was disabled, no, for performing
those tasks."
The question posed by counsel for PERB did not acknowledge
that multiple sclerosis is an incurable, progressive disease
subject to periods of remission and exacerbation. Furthermore, the
hypothetical question did not consider the possibility that the
statements attributed to Weber in 1988 might have been made during
a period of remission and thus Weber may have believed himself to
be in perfectly good health when, in fact, he was not. See Estes
11
v. Railroad Retirement Board (9th Cir. 1985), 776 F.2d 1436, 1438,
in which the Court noted that "multiple sclerosis can be disabling
notwithstanding normal activity in periods of remission."
PERB also claims that Weber was ineligible to claim disability
benefits because he was not continuously disabled from the time he
left his job in 1988 until the time he applied for benefits in
1991. In concluding that Weber was not eligible for benefits, PERB
chose to treat the testimony of Weber and his wife as insufficient.
In its Finding of Fact No. 17, PERB stated:
Despite an exhaustive search of the record for
corroborating evidence, except for Stephen Weber's and
Beverly Weber's testimonv at hearinq, no evidence was
submitted that Mr. Weber's MS symptoms did not completely
abate following the August 1988 attack. [Emphasis
added.]
In its Finding of Fact No. 20, PERB stated:
Mr. Weber contends that the August 1988 "attack" was the
beginning of a change in character of the effect of MS on
his life and his abilities in that for the first time not
all of the symptoms of MS completely abated after this
attack. The particular symptom alleged not to resolve
was double vision. This contention is rejected as not
supported by a preponderance of credible evidence. The
onlv evidence to suooort this contention is the hearinq
testimonv of Stephen and Beverlv Weber [emphasis added].
Although choosing to discount the testimony of the Webers,
PERB did not attempt to refute the testimony of Stephen and Beverly
Weber by offering medical testimony of its own to show that from
1988 to 1991 Weber was capable of performing the duties of his
executive position with the State even though he was relatively
symptom free during that period. All that PERB offered in support
of these findings were statements made by Weber in 1988 before he
knew his problems were related to MS. It should be noted that PERB
12
concedes that by May of 1991 Weber was disabled and, had he still
been working for the State at that time, it is quite probable that
disability benefits would have been appropriate. We hold that the
District Court did not err when it ruled that PERB's findings were
clearly erroneous in that PERB misapprehended the effect of Dr.
Etter's testimony. Further, the District Court did not err in its
definite and firm conviction that PERB, in denying Weber disability
benefits, committed a mistake. Lee Rost Loosing, 827 P.2d at 88.
We affirm the District Court's conclusion that, based on the
available medical evidence, Weber has been continuously disabled
from performing the duties of the Assistant Administrator of the
Tort Claims Division since his departure from that position on
September 9, 1988.
By way of clarification, it should be noted that the present
case differs from Moran v. Shotgun Willies, Inc. (Mont. 19951, (No.
94-361, decided February 15, 19951, another administrative appeal
decision handed down earlier this month. In Moran, we affirmed the
district court determination that there was competent substantial
evidence to support the hearing officer's findings and conclusions
and therefore the agency (Human Rights Commission) abused its
discretion and exceeded its authority under § 2-4-621(3), MCA, when
it rejected the hearing officer's findings. Moran, slip op. at 8.
Unlike the Human Rights Commission in Moran, PERB, in the present
case, did not disagree with its own hearing officer. Rather, PERB
adopted the hearing officer's findings of fact so the competent
substantial evidence test of § 2-4-621(3), MCA, was not an issue.
Also, Weber raised, and the District Court applied, the "clearly
13
erroneous" standard rather than the "'abuse of discretion" standard
utilized in Moran--both of which are permissible standards under §
2-4-704(2) (a), MCA. In applying the three pronged "clearly
erroneous" standard, Lee Rest Loqqinq, 827 P.2d at 88, the District
Court did not find that there was a lack of substantial credible
evidence to support PERB's decision. Rather it relied upon the
second and third prongs of the test and found that PERB
misapprehended the effect of the testimony and, further, that it
had a firm conviction that PERB had committed a mistake.
Affirmed.
14
Justice Karla M. Gray, concurring in part and dissenting in part.
I concur in the Court's opinion on issue 1 and, with great
reluctance, respectfully dissent from that opinion on issue 2. My
reluctance is personal, based on my own familiarity with MS and the
heartbreak of watching a close relative progress through the early
stages of that incurable and progressive disease to a state of
total physical incapacitation. My dissent, however, is based on
my perception that the Court's legal analysis of issue 2 is
erroneous.
It is important to keep in mind at the outset that the burden
of establishing entitlement to disability benefits is on the
claimant. Under § 19-3-1002, MCA (19911, an employee who has
become disabled while in active service is eligible for disability
retirement benefits. "Disabled" means "unable to perform his
duties by reason of physical or mental incapacity." Section 19-3-
1001, MCA (1991).
I raise the matter of who carries the burden because the Court
suggests, at least by implication, that the PERB itself had some
affirmative burden to meet. The Court does so by making the
following statements:
1. "Although PERB did not employ a medical expert . . .'
2. "PERB did not present any medical testimony of its own."
3. "Since PERB did not present any medical testimony of its
own . . .I'
4. "PERB did not attempt to refute the testimony of Stephen
and Beverly Weber by offering medical testimony of its
own . . .I'
15
These repeated statements suggest that the PERB had a burden to
come forward with evidence, rather than merely to determine whether
Mr. Weber had carried his burden of proving by a preponderance of
the evidence that he was disabled--that is, unable to perform the
duties of his position--by MS in September 1988 when he resigned.
The Court's apparent shifting of the burden is erroneous; it also
reflects a lack of focus and clarity in other areas of the Court's
opinion on this issue.
In fact, the record in this case clearly supports the PERB's
finding that Mr. Weber did not meet his burden of proving that he
was disabled by MS from performing his job at the time of his
resignation in September 1988. Indeed, the only unequivocal
testimony supporting Mr. Weber's claim came from Mr. Weber and his
spouse; the PERB did not find Mr. Weber or his spouse credible
based on Mr. Weber's statements at the time of his resignation,
during his wrongful discharge suit and to a variety of health care
providers between 1986 and 1991 that evidenced no serious MS-type
symptoms. This is the province of the trier of fact, not the
District Court or this Court. I cannot agree to the reviewing
courts substituting their judgment for that of the factfinder.
Nor do I agree with the Court that the PERB misapprehended the
effect of Dr. Etter's deposition testimony. It is critical to note
that Dr. Etter provided the only medical opinions in this case and
he offered two such opinions. His first opinion, supporting Mr.
Weber's claimed disability as of August 1988, was based entirely on
Mr. Weber's statements to him at a significantly later date; it was
16
not based on any medical testing done in 1988 or, indeed, on any
medical records for the period from August 1988 through August
1991.
Dr. Etter's second medical opinion did not support Mr. Weber's
claim of disability in August 1988. That opinion was based on
statements which had been made by Mr. Weber to others at various
pertinent times, specifically regarding his health and the reasons
he left his position with the State; those statements were
inconsistent with Mr. Weber's statements to Dr. Etter.
In short, faced with statements made to others by Mr. Weber
which were inconsistent with those made to Dr. Etter, the doctor
changed his medical opinion to one which did not support Mr.
Weber's claim. How the Court can conclude that the PERB
misapprehended the effect of Dr. Etter's testimony in this regard
is inexplicable to me under these circumstances. Equally
inexplicable is the Court's use of such a technique to reject the
entirety of the PERB's decision.
Indeed, the weight of the medical evidence in this case
supports the PERB's determination. During more than thirty visits
to the VA Medical Center at Fort Harrison from October 1988 to May
1991, not a single complaint was recorded from Mr. Weber of an MS-
related symptom. In fact, doctors who saw Mr. Weber from August
1988 through May 1991 recorded a lapse of double vision complaints
during that time. Importantly, Dr. Etter-relied on by the
District Court and this Court as Mr. Weber's treating physician--
saw Mr. Weber once in August 1988 and did not mention any
17
complaints of MS or stress-related symptoms made by Mr. Weber at
that time. He did not see Mr. Weber again until October 1991. As
discussed above, his medical opinion that Mr. Weber was disabled in
August 1988 was not based on medical testing or medical records for
the period August 1988 through August 1991; rather, it was based
entirely on Mr. Weber's statements to him regarding his condition
at that time.
In further regard to Dr. Etter's testimony, the Court states
that the medical opinions of a claimant's treating physician are
entitled to special weight and should not be disregarded absent
specific legitimate reasons for doing so. While I agree with these
general principles, it is my view that there are at least two
specific legitimate reasons for not giving Dr. Etter's medical
opinion supporting Mr. Weber's claim special weight in this case.
First, Dr. Etter was not Mr. Weber's only treating physician during
the period at issue; indeed, Dr. Etter did not even see Mr. Weber
between the time of the resignation and 1991. Second, Dr. Etter's
medical opinion was based entirely on the "history" Mr. Weber
provided him, and that opinion changed dramatically when presented
with other statements made by Mr. Weber which were inconsistent
with those Mr. Weber made to Dr. Etter.
Finally, I note in this regard that giving special weight to
a treating physician does not compel a factfinder to determine that
a claimant is credible; nor does it require giving such special
weight to only one portion of that physician's testimony that all
other evidence of record--including a contrary opinion from that
18
physician--is counterbalanced. Yet that is the effect of the
Court's determination that the PERB "misapprehended the effect" of
Dr. Etter's deposition testimony.
The Court also suggests that Mr. Weber's earlier statements
about his health show only that he did not believe himself disabled
at the time of his resignation in September 1988. I could not
disagree more. On the record before us, Mr. Weber is the only
person in a position to state directly the extent to which he was
actually disabled--that is, totally unable to perform his job--in
September 1988. His various statements regarding his health during
that time, made in part in the context of a lawsuit in which he
successfully established that he was wrongfully discharged, are
evidence of the state of his health at that time and of his ability
to perform his job at that time.
In this regard, the Court also makes an anomalous comment on
Mr. Weber's inconsistent health-related statements which relates
back to my earlier-expressed concern regarding burden shifting.
The Court states that Mr. Weber's inconsistent statements "do not
conclusively prove that he was not, in fact, disabled at that
time." While the Court's statement is correct, it is also
irrelevant. Mr. Weber carried the burden of establishing his
eligibility for disability benefits; the PERB had no burden to
establish his ineligibility.
Finally, the Court attempts to undercut the hypothetical
question posed to Dr. Etter, and Dr. Etter's response, by stating
that the question did not acknowledge that MS is an incurable,
19
progressive disease subject 'to periods of remission and
exacerbation. Here, the Court is apparently trying to rescue a bad
situation by suggesting that it has more specialized knowledge of
the disease and its ramifications than does Dr. Etter, the supposed
expert in this case. Moreover, the Court's undoubtedly true
statement about the nature of MS has no relevance to whether Mr.
Weber was, in fact, disabled by that progressive disease at the
time he resigned from his job in September 1988. That is the issue
before us.
I conclude that substantial credible evidence supports the
PERB's numerous and detailed findings. I conclude also that the
PERB did not misapprehend the effect of Dr. Etter's testimony or,
indeed, any other testimony; nor am I left with any conviction that
a mistake was made by the PERB. I would reverse the District Court
and reinstate the PERB's decision.
20