(dissenting).
I respectfully dissent because I think the uncontroverted facts entitle plaintiff to disability retirement as a matter of law.
The majority characterizes the evidence without revealing what it really was. I believe its characterization is inaccurate. Plaintiff was entitled to service retirement on March 1, 1969. On February 5, 1969, he wrote the pension board, recited that he had been under the care of Dr. E. W. Coffman for emphysema since August 2, 1967, and requested disability pension upon his retirement. The board arranged for examination of plaintiff by two doctors. Both examined him a month after his retirement at which time he was employed by Frommelt Industries. The doctors made separate letter reports to the board. Both found emphysema.
Dr. McKay wrote:
“It is my impression that this man has moderate emphysema. I do not feel that it is incapacitating at this time.” (italics supplied).
Dr. Hazlet wrote:
“It is difficult to establish any very severe disability even from this patient’s complaints. Physical examination, X-rays, and vital capacity studies suggest that he has a very minimal degree of emphysema. It is my impression from physical examination that he has no significant disability at this time.” (italics supplied).
Neither doctor purported to discuss the effect of emphysema upon plaintiff’s duties as a fireman. Each evidently evaluated the condition in terms of its effect upon his industrial employment or his general ability to function. However, as the majority recognizes, the determinative issue is its effect upon his duties as a fireman.
It is also significant that neither doctor made any recommendation as to whether plaintiff should receive a disability pension. Cf. §411.5(9), The Code.
Based solely upon the letters from the two doctors, without according plaintiff either notice or hearing, the board rejected his request for disability pension. No findings appear in the record. The sole hint of the reason for the board’s action is in its secretary’s notification letter to plaintiff wherein he was told, contrary to fact, “ * * * the doctors have reported that your physical condition does not qualify you for a disability pension.”
Subsequently, plaintiff retained counsel who wrote the board to request reconsideration of plaintiff’s application, enclosing affidavits of plaintiff, Dr. Coffman, and two retired firemen. The affidavits of plaintiff and the two firemen who had served with him reported his frequent ex*817posure to smoke and other noxious fumes in his duties as a fireman and the exertion involved in fighting fires. Plaintiff pointed out how his emphysema caused shortness of breath and limited his performance prior to his retirement. Dr. Coffman recounted his 1967 diagnosis of plaintiff’s emphysema. He added:
“Emphysema is a disease of the lungs of a degenerative and permanent nature for which there is no curative treatment. The condition of emphysema causes the patient’s lungs to lose normal elasticity, and therefore, the lungs do not collapse properly in the respiratory process. As a result, one suffering from emphysema, such as Mr. Reisner, is not able to expel and displace the air in his lungs as well as one not inflicted with the disease.
“Mr. John V. Reisner, with his emphysema condition as it existed on the date of his retirement from the City of Du-buque Fire Department in February of 1969 and prior thereto, was physically incapacitated and disabled from the performance of some of the duties required of him as a fireman in that his exposure to smoke, noxious fumes and gases would have an extremely adverse effect upon his condition. Because of the detrimental effect of emphysema upon the respiratory process, Mr. Reisner would be overcome physically by the inhalation of smoke and noxious fumes much more quickly than a fireman not suffering from emphysema. In addition to affecting the performance of his duties, repeated exposures to the inhalation of smoke and noxious fumes and gases would also further aggravate and wors-sen Mr. Reisner’s emphysema condition. Furthermore, physical activity, exertion and strain incidental to his duties would cause Mr. Reisner to become winded and short of breath and therefore adversely affect his ability to perform those duties of a fireman requiring physical endurance. Mr. Reisner’s incapacity and disability as stated above is permanent.”
Thus, only plaintiff’s evidence met the issue of the effect of plaintiff’s disease upon his duties as a fireman. Indeed, except in his evidence the record is silent both as to the physiological significance of emphysema and the duties of a fireman. After referring plaintiff’s request for reconsideration to its attorney, the board minutes show it reviewed its position on rejection of plaintiff’s claim and voted to “uphold its original conclusion for want of any evidence of error.”
This case is indistinguishable from Butler v. Pension Board of Police Department, 259 Iowa 1028, 147 N.W.2d 27 (1966). There it was undisputed that Mrs. Butler suffered from heart disease contracted on active duty as a police matron. Five examining doctors agreed Mrs. Butler had heart disease but two of them, members of the medical board, did not think she should have disability retirement. Here it is undisputed that plaintiff suffers from emphysema contracted on active duty as a fireman. Three examining physicians agreed plaintiff has emphysema, but, arguably at least, two of them did not think he should have disability retirement.
In Butler the court reviewed the qualifications and duties of a police matron and noting the uncontroverted facts that Mrs. Butler had heart disease and her duties required exertion held she was disabled for duty as police matron within the meaning of Code § 411.6(5). In this case the board’s doctors did not even purport to evaluate plaintiff’s disease in relation to his duties as a fireman. We are not therefore called upon, as was the court in Butler, to reject their recommendations in view of uncontroverted facts.
It is sufficient here to note all doctors agreed plaintiff has emphysema. The disease is degenerative, incurable and permanent. It is established that the disease was caused by inhalation of smoke and noxious gases while plaintiff was on active duty as a fireman. A fireman’s duties involve exertion and require efficient respiration. *818The disease is aggravated by exposure to inhalation of smoke and noxious gases. The work of a fireman entails such exertion and exposure as a matter of course. Plaintiff can no longer be said to have the qualifications of a fireman and must be viewed as disabled under Code § 411.6(5).
The illegality here as in Butler was not in the board’s weighing of evidence but in its misapplication of the law. In both situations the boards failed to give effect to the statutory language declaring eligibility for disability pension by reason of “incapa-cit[y] for further performance of duty.” Although we have never judicially construed the language of the statute, we applied it in Butler as not requiring a showing of disability from all activity. 259 Iowa at 1033, 147 N.W.2d at 30:
“To show that she was disabled as a police matron it was not necessary that she be disabled from all activity. A heart condition may disable a police officer. [citation].”
Unless we articulate the standard to be utilized by medical boards and boards of trustees in assessing “incapacit[y] for further performance of duty,” we invite future miscarriage of the law similar to that which occurred here. The standard implicit in Butler is that one has such incapacity when because of the affliction involved he is unable properly to perform all of the material duties of his position. The Massachusetts court in Quincy Retirement Board v. Contributory Retirement Appeal Board, 340 Mass. 56, 60, 162 N.E.2d 802, 805 (1959), referred to it as “the substantial inability of [a pension applicant] to perform the duties of his particular job or work of a similar nature or for which his training and qualifications fit him.” There a fireman with some limitation of right knee flexion because of cartilage removal was held totally incapacitated for duty under a statute similar to ours. See also Mansperger v. Public Employees’ Retirement System, 6 Cal.App.3d 873, 86 Cal. Rptr. 450 (1970) (adopting the Quincy definition) ; 1A Appleman, Insurance Law and Practice, § 671 (1965) (disability insurance payable when the insured is unable to perform all of the material duties of his job).
When tested by this standard, any reasonable view of the evidence compels the conclusion as a matter of law that plaintiff is physically incapacitated for further performance of duty as a fireman within the meaning of Code § 411.6(5). Emphysema (like limited knee flexion) is as disabling to a fireman as heart disease to a police matron.
Here, just as in Butler, the board misapplied § 411.6(5) and in doing so acted illegally. I would therefore find plaintiff is entitled to a disability pension and reverse the case.
REYNOLDSON and HARRIS, JJ., join in this dissent.