The Joplin Globe, Joplin, MO

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June 20, 2011

Disabled firefighter files lawsuit over disability pay

By Debby Woodin news@joplinglobe.com

JOPLIN, Mo. — A disabled Joplin firefighter has filed a lawsuit against Joplin and its Police and Firemen’s Pension Fund over the calculation of his disability pay.

Tom Robertson contends that the city incorrectly calculated the benefits he is due for a duty-related disability. He is receiving slightly more than a third of the wages he made when he was working. He contends in the suit that he should receive half.

He asked the board in April to overrule the city’s calculation, but the board did not do so. He asked the board in May to change its ruling, and the board declined.

AT ISSUE

The board chairman, Mayor Mike Woolston, said the lawsuit centers on the interpretation of the pension fund’s disability pay provisions.

“They read it one way; we read it another,” Woolston said. “The suit is not a great shock to me. I anticipated it after the board last discussed it” in May.

Brian Head, city attorney, said, “The issues that are presented are ones the board considered on multiple occasions and, at this point, the board of trustees will defend its decision vigorously.”

The lawsuit was filed in Jasper County Circuit Court in Joplin.

The attorney representing Robertson, Dan Tobben of the Danna McKitrick firm in St. Louis, contends that Robertson should be entitled to half the average pay he earned when he worked. He was accepted for disability in January because of a lung condition caused by exposure to smoke at a fire.

But the city calculated his benefit at 37.5 percent of his average pay, contending that the benefit is reduced by one-twentieth for years of service below the retirement level of 20 years.

The lawsuit also contends that the benefit calculation incorrectly rounded Robertson’s years of employment to 15 instead of using his full tenure of 15 years and 11 months. Tobben contends that Robertson should be paid as though he had served 20 years because he sustained a disability that prevented him from serving further.

Robertson expected about $1,900 a month, but after the reduction, he is scheduled to receive $1,400, he said at the pension board meeting in April.

Changes made in the plan in 1993 and 1999 are central to the dispute.

Head said at a pension board discussion in May that the plan, created in 1946, underwent changes several times in which disability benefits were left at half pay. But in 1993, changes approved by the members required a reduction, or offset, if the 20-year threshold of service was not reached when a benefit was sought.

That change was made when Joplin hired a police chief who was 45 years old and could not complete the plan’s required 20 years of service before reaching the plan’s retirement age, which then was 60, Head said.

UNDISCLOSED CHANGE?

Tobben has contended that the city changed the calculation without the knowledge of those who are covered when other provisions in the plan were amended in those years. He said those covered by the plan were unaware of the disability reduction.

“Technical changes can be made to the plan that don’t affect the membership’s rights, but you can’t change the rights unless there has been a vote of the membership affected,” Tobben told the pension board in May. “No firefighter understood they were voting to reduce benefits to a firefighter injured on the job.”

Tobben told the pension board that he saw nothing in the plan’s language during those elections that allowed the reduction. “If members are not aware of that, the city charter does not allow it,” he said.

After a board member said the plan members must have been aware of the change in calculation if they voted in favor of the changes, Robertson told the board: “I don’t think anyone would have voted to reduce the duty disability. This is not about Tom Robertson. This is about protecting every police (officer) and firefighter in the plan.”





Damages



THE LAWSUIT SEEKS the benefit pay change for Tom Robertson, along with attorney fees and costs, and an amount of damages that is not specified but is stated as being in excess of $25,000.

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