Opinion
No. CV 04-4000064-S
June 29, 2006
MEMORANDUM OF DECISION
The plaintiff, a retired Waterbury police officer, is appealing the administrative determination of the defendant City of Waterbury Retirement Board ("Defendant Board"). Such appeal is filed pursuant to § 35.20 of Title III of the Final Amended Ordinance Regarding the Pension and Retirement System of the City of Waterbury, effective November 10, 2003. See Plaintiff's Exhibit 1. Specifically, the plaintiff is appealing the award of disability pension by the Defendant Board, claiming that the Board abused its discretion when it failed to award him a disability pension that took into account the extent of his actual disability.
Section 35.20 states in pertinent part: "[A]ny person aggrieved by any decision of the Retirement Board may, within thirty (30) days from the date when such decision was rendered, take an appeal to the Superior Court for the Judicial District of Waterbury in New Haven County . . . The Court, upon such appeal, and after a hearing theron, may reverse or affirm, wholly or partly, may modify or revise the decision appealed from, or may remand the matter to the Retirement Board for further proceedings . . ."
The Court finds the following facts. The plaintiff was hired by the City of Waterbury on November 30, 1981. (Return of Record (ROR), Item 1a.) At all times pertinent to this action, the plaintiff was a member of the Defendant City of Waterbury's Police Department and as such, a member of Local 1237, Council 15, American Federation of State, County, and Municipal Employees. ROR 5a. The Plaintiff submitted an application for a disability pension on February 27, 2004 (ROR 1a). As of that date, the plaintiff's terms and conditions of employment were set forth in a collective bargaining agreement ("the Agreement") between the plaintiff's bargaining unit and the Defendant City of Waterbury, effective July 1, 2000 through June 30, 2005 (Plaintiff's Exhibit 1). Pursuant to Article 23 (entitled "Pension"), § 12 of the Agreement, the Plaintiff was evaluated by two physicians appointed by the Defendant Board for the purpose of establishing the existence of and the extent of his disability (ROR, 1d and 1f). The findings of Dr. Richard Loyer and Dr. Richard Dyer were sent to Ms. Marie Rocco, representative of the Defendant Board, on April 5, 2004 and April 29, 2004 (ROR, 1d and 1f). Dr. Loyer stated that the Plaintiff was unable to perform his job as a police officer due to his inability to tolerate the weight placed on his lower back by the heavy police gun belt, which weighed approximately 12-13 pounds. Dr. Loyer reviewed the Plaintiff's MRI scan of the lumbar spine, indicating some degenerative changes in the lumbosacral spine area and made a diagnosis of chronic lumbosacral spine strain/degenerative disc disease. He also stated that the Plaintiff was not disabled from performing other work (ROR, 1d). Dr. Dyer diagnosed the Plaintiff with chronic lumbar strain, discogenic, stable at the present time. He also stated that the Plaintiff was unable to return to his occupation as a police officer because his lumbar symptoms are aggravated by the duties required by the job. Dr. Dyer also stated that the Plaintiff is able to find other lighter employment (ROR, 1f).
The Defendant Board conducted a hearing in regards to the Plaintiff's application for a disability pension on June 10, 2004 (ROR, 3a). At the hearing, Plaintiff's counsel summarized the Plaintiff's history of employment with the Waterbury Police Department. He then outlined the Plaintiff's disabilities for the Board, including disability percentages assessed by other physicians who had treated and/or evaluated the Plaintiff. In addition to the lower back problems, counsel for the Plaintiff also introduced medical records regarding a hearing loss suffered by the Plaintiff which also supported his application for a disability pension (ROR, 3a). The Defendant Board unanimously voted to approve a disability pension in the amount of $49,591.80 for the Plaintiff (ROR, 3a, p. 6). This appeal ensued.
The Plaintiff's pension was subsequently re-calculated with the appropriate amount of weekly base pay to reflect an annual disability payment of $51,066 (ROR, 1c, Tab B).
In support of his appeal, Plaintiff argues that the Board's decision concerning the amount of his pension was illegal, arbitrary and an abuse of discretion in one or more of the following ways: a) the decision was not supported by substantial evidence; b) the decision was not lawfully correct; c) the disability pension was limited to an amount equal to the Plaintiff's service pension; d) the Board failed to award an amount for Plaintiff's multiple disabilities, including his permanent back injury and permanent hearing loss in both ears; e) the Board prejudged the matter outside the record; f) the Board unlawfully considered and decided the matter in a private, executive session outside the record; g) the Board failed to explain its method for determining the amount of the disability pension on the record; h) the Board's method for determining the amount to award for a disability pension is arbitrary and subject to abuse; i) the Board was unlawfully influenced by political and social pressures not appearing on the record; j) the Board breached its fiduciary duty to the Plaintiff as set forth in Title III of the Waterbury Code of Ordinances, as amended by the Board of Aldermen of the City of Waterbury in April of 2003; k) the Board's decision violated the Plaintiff's due process and equal protection rights; l) the Board awarded 75% of base pay, in accordance with the Union Contract in force, which is exactly the amount the Plaintiff had earned for years of service and the Board gave no credit beyond a service pension for a back injury or significant hearing loss suffered in the line of duty, contrary to established precedent and caselaw; m) the Board's decision was contrary to the intent of the parties to the Agreement; and n) the Board's failure to follow its longstanding practice and policy, described in subparagraph "l," of awarding such pensions was unreasonable and an abuse of discretion in light of the expectations the parties to the Agreement and union members, who reasonably relied on a maintenance of such practice and policy when entering into the Agreement.
Plaintiff filed his Third Amended Complaint on April 7, 2005.
In the Plaintiff's Brief, Plaintiff argued that 1) the Board applied the wrong section of the Agreement when determining the amount of the disability pension; and 2) the Board was required by precedent to award the Plaintiff an amount greater than what he was entitled to receive for a service pension. The Plaintiff argues that the Appellate Court's decision in Downey v. Retirement Board of Waterbury, 66 Conn.App. 105 (2001), is controlling in this case and requires either that this Court exercise its equitable powers and award the Plaintiff an additional amount of compensation consistent with the extent of his disabilities, or, in the alternative, that the decision be remanded to the Board with an order that it must determine how much additional compensation he will be awarded for his disabilities. Finally, the Plaintiff argued the Board was bound by previous disability award decisions wherein police and firemen received a percentage of disability compensation over and above the amount of their service pension.
The Plaintiff also argued in his brief that the Board's attempted modification of Article 23, section 12 of the Agreement by way of a town ordinance dated November 10, 2003 was invalid pursuant to the Municipal Employees Relations Act ("MERA"). During oral argument, counsel for the Board conceded that the November 2003 ordinance was passed after the effective date of the Agreement and therefore could not be controlling in this case regarding the award of the plaintiff's pension. Accordingly, the Court will not address this issue as it is deemed moot. Further, Plaintiff also argued that the Board had failed to pay him his pension retroactive to June 10, 2004. At oral argument, counsel for the Plaintiff conceded this argument was made inadvertently, and that the Plaintiff had in fact been receiving disability pension compensation since March 6, 2004. Accordingly, the Court will not address this argument as it is also moot.
The Board argues that Article 23, section 12 of the Agreement authorized the Board to award the Plaintiff any amount, in its discretion, it deemed appropriate on account of his disability, provided said amount could not be less than 50% of the Plaintiff's annual rate of regular compensation. The Board further argues that the holding in Downey was not controlling in the present case as the facts and circumstances of this case are distinguishable from those in Downey. For the reasons stated below, the Court finds for the Defendant.
The issues presented are 1) whether the Plaintiff was entitled to receive a disability pension; 2) if so, whether the Plaintiff received an award in accordance with the terms of the Agreement; and 3) whether the Board abused its discretion in regards to its June 2004 award.
SCOPE OF REVIEW
The first issue to be addressed is whether the Plaintiff had standing to bring this appeal. "The test for determining [classical] aggrievement encompasses a well settled twofold determination: first, the party claiming aggrievement must demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest shared by the community as a whole; and second, the party claiming aggrievement must establish that this specific personal and legal interest has been specially and injuriously affected by the decision." In re Allison G., 276 Conn. 146, 156-57, 883 A.2d 1226 (2005). There is no claim in this case that aggrievement is lacking. Further, the Court finds adequate support in the record that the Plaintiff has demonstrated a specific personal and legal interest in the subject matter of the Defendant Board's decision regarding the amount of his disability award, and that his interests were specially and injuriously affected by the Board's decision. Thus, the Court finds that the Plaintiff was aggrieved by the Board's decision. The Court will now address the standard of review to be applied in this case.
In Duglenski v. Retirement Board, CV 04-0183615S (October 5, 2005) ( 40 Conn. L. Rptr. 93), the Court (Brunetti, J.) articulated the appropriate standard of review in regards to appeals from decisions of administrative agencies.
The standard of review in appeals from the decisions of administrative agencies is well established. Judicial review of an agency decision is limited to determining, whether in view of all the evidence, "the agency acted unreasonably, arbitrarily or illegally or abused its discretion . . . [c]onclusions of law reached by an administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts and could reasonably and logically follow from such facts." Alexander v. Retirement Board, 57 Conn.App. 751 (2000), quoting O'Callaghan v. Commissioner of Social Services, 53 Conn.App. 191, 203 (1999). "Courts are not to substitute their judgment for that of the board . . . and decisions of local boards will not be disturbed so long as honest judgment has been reasonably and fairly exercised after a full hearing . . . Upon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons." (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206, 658 A.2d 559 (1995). The court's function is limited to the examination of the record to determine whether the ultimate decision was factually and legally supported to ensure the board did not act illegally, arbitrarily or in an abuse of its discretion. Ferrier v. Personnel and Pension Board, 8 Conn.App. 165, 167 (1986). "The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board's decision." (Internal quotation marks omitted.) Francini v. Zoning Board of Appeals, 228 Conn. 785, 791, 639 A.2d 519 (1994).
"The substantial evidence rule governs judicial review of administrative fact-finding under [the Uniform Administrative Procedure Act] . . . Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . This substantial evidence standard is highly deferential and permits less judicial scrutiny than a clearly erroneous or weight of the evidence standard of review . . . The burden is on the [plaintiff] to demonstrate that the [agency's] factual conclusions were not supported by the weight of substantial evidence on the whole record." MacDermid, Inc. v. Department of Environmental Protection, 257 Conn. 128, 136, 778 A.2d 7 (2001). "Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts." O'Callaghan v. Commissioner of Social Services, 53 Conn.App. 191, 203, 729 A.2d 800 (1999), quoting Burinskas v. Dept. of Social Services, CT Page 12240 240 Conn. 141, 146-47, 691 A.2d 586 (1997). "Where the administrative agency has made a factual determination, the scope of review ordinarily is expressed in such terms as substantial evidence or sufficient evidence . . . Where, however, the administrative agency has made a legal determination, the scope of review ordinarily is plenary." (Citations omitted.) Christian Activities Council, Congregational v. Town Council, 249 Conn. 566, 581, 735 A.2d 231 (1999).
FINDINGS OF FACT CONCLUSIONS OF LAW
In the present action, the Board made a legal determination as to the extent of its obligation to pay a disability pension to the Plaintiff pursuant to the Agreement, and a factual determination as to what amount, if any, he should receive as an award based upon the extent of his disability. The Court will first address the Board's legal determination. There is no dispute that the July 2000 Agreement between the parties contained the terms and conditions governing retirement and pension benefits to which the Plaintiff was entitled.
Article 23, § 3 states: "Any police participant who has served as a member of the Police Department for at least fifteen (15) years, who has completed twenty (20) years of service, regardless of age, as a full-time employee of the City of Waterbury shall, at his option, be eligible for retirement, and upon his written request to the Retirement Board of the City of Waterbury shall be permanently retired." Section 4 of Article 23 states in pertinent part: "Any police participant who satisfies the eligibility requirements of Section 3 hereof . . . shall be entitled to an annual pension for life in an amount equal to one-half of the amount of compensation . . . received by him, at the permanent rank or grade held by him at the time of his retirement, payable monthly. In the case of any police participant, eligible for his retirement at his option, who shall continue in the service of the Police Department after the said date of eligibility for retirement, there shall be added to such pension, at the time of his permanent retirement, a sum equal to two and one-half (2.5%) percent of his said compensation, for each additional completed year he continues in said service until the date of his permanent retirement The parties agree that the maximum amount of the service pension prescribed by this Section shall be 100% of base pay and that the maximum number of years of service, for retirement purposes, for the purpose of this section, shall be thirty (30) years of service with the City."
Section 12 of Article 23 addresses disability pensions. It states in pertinent part: "Any police participant totally and permanently disabled during the performance of essential duties pertaining to his employment by the City of Waterbury, irrespective of duration of his employment, shall upon application in a form prescribed by the Retirement Board, be retired for disability, provided proof of total disability is submitted to the Retirement Board substantiated by reports of examinations to be made by at least two (2) impartial competent medical examiners appointed by the Retirement Board . . . The City of Waterbury guarantees that effective upon the signing of this contract no pension payable to a police participant employed by the Police Department on account of total and permanent disability sustained during the performance of essential duties pertaining to employment by the City of Waterbury as provided herein, shall be less than one-half (1/2) the annual rate of regular compensation, plus longevity of the disabled employee at the time of retirement . . ."
During oral argument and in his brief, the Plaintiff asserted the position that he is entitled to a disability pension award that is "properly calculated" under § 12, Article 23. He further states that the Board was required by the decision in Downey, supra, to award the Plaintiff some amount over and above the amount to which he was entitled as a service pension. The Court will address each of these arguments in turn.
The first issue is whether the pertinent Agreement provisions are clear or ambiguous. "In determining whether a contract is ambiguous, the words of the contract must be given their natural and ordinary meaning . . . [A] contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself . . . The contract must be viewed in its entirety, with each provision read in light of the other provisions . . . If the language of the contract is susceptible to more than one reasonable interpretation, the contract is ambiguous." Charette v. Waterbury, 80 Conn.App. 232, 244-45 (2003), citing United Illuminating Co. v. Wisvert-Connecticut, LLC, 259 Conn. 665 (2002). The Plaintiff argued in his Third Amended Complaint that the Board's decision was contrary to the intent of the parties to the agreement.
The Court is not permitted to speculate as to the intent of the parties in the absence of proof of ambiguity. "Although ordinarily the question of contract interpretation, being a question of the parties' intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law . . . When only one interpretation of a contract is possible, the court need not look outside the four corners of the contract." Bentz v. Halsey, 54 Conn.App. 609, 616 (1999). After a careful review of Article 23 and all of its sections, the Court is of the opinion that the contract is clear on the issue of when an employee is eligible to retire, whether it be a service or disability retirement, and the minimum amount of pension award to which the employee is entitled.
An employee with 22 years of service who suffers from a permanent and total disability may, at their own option, apply for a service pension or a disability pension. In regards to the service pension, the employee is entitled to receive compensation equal to 1/2 of the employee's annual rate of regular compensation based upon completion of their twentieth year of service. In addition, that employee is entitled to receive an additional 2.5% of the annual rate of compensation at the time of retirement for each additional year they worked for the Police Department beyond their twentieth year of service. If, however, the employee chooses to file for a disability pension, as in the case of the Plaintiff, the employee is entitled, pursuant to Article 23, § 4 of the Agreement, to receive a minimum of 1/2 the employee's annual rate of regular compensation, plus longevity, at the time of retirement. Therefore, pursuant to the terms of the Agreement, which both parties conceded was in effect at the time of the Plaintiff's application for retirement, the Plaintiff was entitled to receive a minimum award of $34,044.00. The Board, however, exercising its discretion as an administrative agency, chose to award the Plaintiff a higher amount, an amount equal to a service pension.
Plaintiff first argues that the Board failed to "properly calculate" the disability pension award pursuant to Article 23, § 12. This argument is incorrect. Based upon the plain meaning of § 12, the Board was obligated to award the Plaintiff an amount not less that 1/2 of the Plaintiff's annual rate of regular compensation, plus longevity, at the time of retirement. The Plaintiff's annual rate of compensation at the time of retirement was $63,960.00. Adding the Plaintiff's longevity ($930.00) and holiday pay ($3,198.00), the total compensation was $68,088.00 (ROR, 1.c. Tab B). Half of this figure, or $34,044.00, is the minimum amount to which the Plaintiff was entitled pursuant to the Agreement. The fact that the Board chose to award the Plaintiff a pension amount which exceeded this figure is not evidence that the pension amount was improperly calculated.
Plaintiff further argues that the Appellate Court's decision in Downey, supra, stands for the proposition that it is an abuse of discretion for a retirement board to award a disability pension in an amount that is equal to that of a service pension because such an award fails to compensate the employee for the extent of their disability. This Court finds that the facts in Downey are distinguishable from those of the present case and thus, the holding in Downey is not controlling in this case. Downey involved a Waterbury firefighter who filed for a disability pension pursuant to the collective bargaining agreement in place at the time of his retirement. The Board initially awarded the plaintiff a disability pension of 62% of his annual rate of regular compensation, but was later ordered to re-calculate the rate at 72% to account for five years of service which were not previously appropriately credited. Downey v. Retirement Board, 66 Conn.App. at 107-12. Pursuant to Article 23, § 9 of the agreement in effect in Downey, supra, the plaintiff was entitled to a receive a service pension of 2% of the annual rate of regular compensation for each year of service. Downey, supra, at 109.
In addition, Article 23, § 11 of the agreement stated "[T]he parties hereto agree that, effective as of July 1, 1977, any provision of the Charter to the contrary notwithstanding, an employee who applies for, and receives, a disability pension . . . shall be entitled to, and shall receive, a maximum disability pension of seventy-six percent (76%) of annual pay . . ." See Downey, supra at 117, footnote 10. The defendant in Downey argued that a disability award can include an amount for the disability and still properly be an amount that is less than what the employee would have received for a service pension.
Downey is distinguishable from the case at bar and thus is not controlling for several reasons. First, the Board in the present case is not arguing that the Plaintiff should receive an amount of disability compensation that is less than an amount he would receive for a service award. The Board, in fact, has awarded the Plaintiff an amount that exceeds what he is entitled to pursuant to the Agreement. Second, the Appellate Court in CT Page 12244 Downey found that the defendant failed to take into consideration the extent of the plaintiff's disabilities when it awarded the plaintiff his pension, which was equal to his length of service. The Court arrived at this conclusion based on the fact that the record reflected that the Board only discussed the plaintiff's years of service and never commented upon the extent of the plaintiff's disabilities. In the present case, the Board was presented with the medical evaluations of the Plaintiff by Drs. Dyer and Loyer. These records were reviewed and considered by the Board prior to their vote. In addition, the Board also engaged in a discussion concerning their discretion to award any amount they deemed appropriate in regards to a disability pension, provided they gave due consideration to the disability. The Plaintiff alleged in his amended Complaint that the Board prejudged the matter outside the record, and that the Board unlawfully considered and decided the matter in a private, executive session outside the record. Neither of these arguments were briefed by the Plaintiff; nor were they raised at oral argument by the Plaintiff. As such, they are considered abandoned by the Plaintiff and will not be further considered. See Collins v. Goldberg, 28 Conn.App. 733, 738 (1992).
Upon making a motion, board member Patrick Jones stated "Yes. After a review of the independent medical examinations and after review of your relevant police contract, I make a motion to approve a disability pension in the amount of $49,591.80 for John Cosgrove . . ."
The June 4, 2004 hearing addressed two disability applications, one for the plaintiff and another for Mr. John O'Connor. One of the members of the Board, J. Paul Vance, Jr. stated "I think that the substance of that decision (referring to Downey) says that there needs to be addressed if you grant a disability pension. It could be anywhere from 0 to 100% based on the contract but there need be some discussion as to the difference between the service pension and the disability pension and if, in fact, this board chooses in their discretion to add an additional percentage . . ."
The Court also finds the following arguments, asserted as claims in his Third Amended Complaint, but neither briefed nor raised at oral argument, abandoned by the Plaintiff pursuant to Collins v. Goldberg, supra: first that the Board was unlawfully influenced by political and social pressures not appearing on the record; second, the Board's breach of its fiduciary duty to the Plaintiff; and third, the Board's decision violated the Plaintiff's equal protection and due process rights.
The present case and the facts of Downey are also distinguishable in regards to the disability provisions in the contracts. In the present case, the parties agreed that there would be a minimum amount to which the employee would be entitled, namely 50% of annual base pay plus longevity. In Downey, there was no articulated minimum amount, but only a maximum disability award of 76% of annual pay. By its very language, the parties intended to establish no guidelines in the Agreement in the present case, providing the Board with broad discretion to award the applicant any amount over the 50% of annual pay plus longevity. In the case-at-bar, the Board chose to award an amount far in excess of the minimum authorized by the agreement. The Board in Downey awarded the plaintiff a 72% award, yet there was no evidence that the Board ever considered the medical evidence of the plaintiff's disability, nor was there any evidence as to whether Mr. Downey was capable of performing other work.
In Downey, the Appellate Court was troubled because it concluded that the defendant had ignored the plaintiff's medical reports, physical condition and disability when it determined the plaintiff's pension award. Downey, supra, at 114. The issue that must be addressed, therefore, is whether the Board in the present action in fact considered the Plaintiff's medical condition when it made its determination. "This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . The reviewing court must take into account [that there is] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence . . . (Internal quotation marks omitted.) Christopher R. v. Commissioner of Mental Retardation, supra, 277 Conn. 611-12. "The substantial evidence rule is a compromise between opposing theories of broad or de novo review and restricted review or complete abstention. It is broad enough and capable of sufficient flexibility in its application to enable the reviewing court to correct whatever ascertainable abuses may arise in administrative adjudication. On the other hand, it is review of such breadth as is entirely consistent with effective administration." (Internal quotation marks omitted.) Smith Bros. Woodland Management, LLC v. Planning Zoning Commission, 88 Conn.App. 79, 89, 868 A.2d 749 (2005).
The Supreme Court has stated with regard to zoning commissions: "When a zoning agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the commission's decision." Harris v. Zoning Commission, 259 Conn. 402, 420, 788 A.2d 1239 (2002). In Cumberland Farms, Inc. v. Groton, 262 Conn. 45, 51 n. 8, 808 A.2d 1107 (2002), the Supreme Court further stated with regarding to zoning agencies: "Where a zoning agency has stated its reasons for its actions, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the [board] was required to apply under the zoning regulations . . . It is well settled that a court, in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own." (Internal quotation marks omitted.) In addition, the Supreme Court stated with regard to zoning commissions: "If there is conflicting evidence in support of the zoning commission's stated rationale, the reviewing court . . . cannot substitute its judgment as to the weight of the evidence for that of the commission . . . The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." (Emphasis added; internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 453, 853 A.2d 511 (2004).
The Appellate Court, however, held with regard to a planning and zoning commission that "if the commission has not articulated its reasons [in support of its decision on the record], the court must search the entire record to find a basis for the [commission's] decision." (Internal quotation marks omitted.) 200 Associates, LLC v. Planning Zoning Commission, 83 Conn.App. 167, 177-78, 851 A.2d 1175 (2004). "The principle that a court should confine its review to the reasons given by a zoning agency . . . applies [only] where the agency has rendered a formal, official, collective statement of reasons for its action . . . It does not apply to mere utterances of individual members of the agency." (Citation omitted; internal quotation marks omitted.) Harris v. Zoning Commission, supra, 259 Conn. 420.
Applying the principles as articulated above to the facts of this case, the Court finds that the defendant Board did not articulate its reasons for the specific award granted to the Plaintiff. However, the Court is able to search the record to find a basis for the Board's decision. First, as was stated above, § 12 of Article 23 of the Agreement states that the only qualification regarding the award of a disability pension is that it shall not be less than 1/2 of the employee's annual rate of regular compensation. There was nothing prohibiting the Board from providing the Plaintiff with a higher amount, as it did in this case. Further, there was nothing in the Agreement which required the Board to pay the Plaintiff any specific amount, over and above 50% of the annual rate of regular compensation. Contrary to the Plaintiff's assertions, the Downey decision does not stand for the proposition that the Board was required to award the Plaintiff any additional amount of compensation on account of his disability. Rather, the Appellate Court stated that the Board was not allowed to completely disregard the medical evidence and opinions admitted into the record concerning the nature and extent of the Plaintiff's disability.
In Downey, the Appellate Court found that the opinions of the medical experts were either disregarded or disbelieved. Citing Tanner v. Conservation Commission, 15 Conn.App. 336, 341 (1988), the Appellate Court stated that "[W]hile we recognize that an administrative agency is not required to believe any of the witnesses, including expert witnesses . . . it must not disregard the only expert evidence available on the issue when the commission members lack their own expertise or knowledge . . ." The Plaintiff argues that the Board must have disregarded the medical evidence in this case because the Board did not award anything over and above the amount of a service pension. This argument fails for two reasons. First, as was stated previously, the Board did award an amount beyond what was required in the Agreement. Second, in Battaglia v. Retirement Board, CV 123090 (June 5, 1995) (Pellegrino, J.), the Court held that the fact that the defendant Retirement Board awarded only 2% more under a disability retirement than the plaintiff would have received under normal retirement did not persuade the Court that the defendant Board's assessment was arbitrary, clearly erroneous, or an abuse of discretion. The Court held "[A]s with most situations that require assessing monetary losses or disabilities, there is no grid that can be formulated to arrive at a fair numerical amount in every case since every case is unique. In most instances, we must rely on the judgment of the factfinder who will weigh various components and arrive at a decision it feels is fair and equitable . . ." In addition, Plaintiff's argument regarding the Board's lack of a specific methodology for determining the amount of a disability pension award is also unavailing. In Finno v. Retirement Board, City of Waterbury, CV 113949 (September 9, 1994) (Kulawiz, J.), the Court held that "[i]t would be extremely burdensome to the Board to enact standards beyond those set forth in the Police Union Contract . . . The court declines to remand this case to the Retirement Board for their setting of standards or policies as the court believes that the arena of collective bargaining between the City and the Police Union is the proper forum for any change in disability retirement formula involving those parties" (emphasis added).
In addition, the fact that the Board may not have set forth their reasons for their decision with as much clarity as possible does not render it invalid: ". . . [o]ur Supreme Court has previously noted that the members of local administrative bodies `may well be laymen and cannot be expected to set forth the reasons for their action in language which would satisfy the meticulous criticism of a legal expert . . .'" DeMars v. Zoning Commission, 142 Conn. 580, 584 (1955). The Court finds that, upon searching the record, there was sufficient evidence to substantiate the Board's decision. The two independent medical examiners both concluded that the Plaintiff, though no longer able to perform police work, was able to perform other work. Thus, he was not found to be totally and completely disabled from obtaining some other type of gainful employment. In contrast, there was no finding in Downey that the Plaintiff was capable of working in some other capacity other than as a firefighter, nor can one search the record and make such a finding. In addition, unlike the defendant's position in Downey, the Board is not attempting to argue that the Plaintiff ought to be awarded a certain amount for his disability and still be paid less than the amount of his service pension. The Board has decided, after considering all the evidence, to pay the Plaintiff an amount equal to his service pension, which is higher than the minimum amount to which he is entitled under § 12 of Article 23 of the Agreement.
Finally, the Plaintiff also argues that the Board was bound by its previous awards to other retirees in rendering its decision in this case. Conn. Gen. Stat. § 4-180a(b) states in pertinent part: ". . . [n]o written order or final decision, regardless of when rendered, may be relied on as precedent by an agency unless it also has been indexed by name and subject." There is no evidence in the record to demonstrate that other Board decisions have been so indexed; thus, the Board was under no obligation to rely upon them as precedent in this case.
CONCLUSION
Based upon all the evidence, the Court finds that the Defendant's decision was not arbitrary, clearly erroneous or an abuse of discretion. The decision was consistent with the applicable collective bargaining agreement in effect at the time of the Plaintiff's disability retirement application, as well as with applicable statutory and caselaw authority. Accordingly, the appeal is dismissed.