The Joplin Globe, Joplin, MO

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January 9, 2014

Attorneys argue Joplin pension lawsuit appeal

SPRINGFIELD, Mo. — Appellate judges asked a number of questions Thursday centered on why Joplin’s Police and Firemen’s Pension Fund rules would have been written with offset language if they were not intended to allow for benefits to be reduced before full retirement requirements were met.

The Missouri Court of Appeals heard arguments by attorneys for both sides in a pension board appeal of a Jasper County Circuit Court ruling that an injured fireman’s disability pay was not calculated correctly.

The lawsuit was filed by former firefighter Tom Robertson, who suffered a duty-related lung injury and was granted disability by the pension board. His benefits were calculated at 37.5 percent of his working pay rather than 50 percent. The award was reduced for the time he lacked meeting the fund’s 20-year full retirement threshold. He challenged the decision in court, contending that a rule used to figure retirement benefits for workers who took early retirement was incorrectly applied to disability cases. Other local firefighters who are members of Local 2618, International Association of Fire Fighters, joined Robertson’s lawsuit.

Karl Blanchard, a Joplin attorney representing the pension board, told the appellate court Thursday that the issue is simple.

One section of the pension rules, Section 5.1, reads that benefits are to be paid at 100 percent of the normal retirement benefit and refers to a second section, Section 3.1, that is to be considered as part of the calculation, he said. “Section 3.1 clearly says that when a person has less than 20 years, it is to be reduced by one-twentieth” of the worker’s average monthly pay, Blanchard told the court.

The attorney for Robertson and the firefighters, Dan Tobben of St. Louis, said that Section 3.1 is intended to apply to people who are taking early retirement, not disability, because they have reached the age of 60 but do not have 20 years of service.

Tobben said that Section 5.1 and its language describing a calculation of 100 percent of normal retirement benefits, which in Section 3.1 is described as 50 percent of average monthly pay, “is the key part” that applies to disability cases.

Appellate Judge Don Burrell said he did not mean to oversimplify Tobben’s argument, but “what jumps out at me using that argument is that the rest of this is just surplus language,” if Section 3.1 is not meant to apply to disability cases as well as retirements.

Appellate Judge Gary W. Lynch said that Section 3.1 says the normal retirement benefit is to be adjusted by the years of service less than 20. “You’re saying the adjustment is not part of the normal monthly retirement benefit?” Tobben said yes. He said the Section 3.1 language is not meaningless, “it simply applies to normal retirements.”

Tobben said the plan uses a different multiplier for nonduty disability pay, which reaches the same result in the benefit amount but illustrates that different language is used for the different coverages.

Using the calculation that was applied to Robertson could, Tobben said, result in a low benefit to a new police officer or firefighter who does not have many years on the job. Tobben said that is an absurd result, which the law does not intend.

Blanchard countered that firefighters receive workers’ compensation pay so the pension plan is not the only source of pay for an injured worker.

To allow full benefits for workers who do not reach the prescribed length of service would jeopardize the solvency of the fund if a tragedy happened that involved a number of emergency workers, Blanchard told the panel. That is one reason why the disability benefits would be limited, he said.

It could take several weeks for the appeals court to issue a ruling, said Brian Head, Joplin’s city attorney.

Those covered by the pension plan recently approved a measure that would give the pension board the authority to buy disability insurance if that would save the plan money rather than paying those benefits out of the pension fund. Head said that will go into effect if the City Council also approves the measure, and he expects it to be placed on the agenda for the council’s next meeting, which is set for Jan. 21.

Background

TOM ROBERTSON worked for the Joplin Fire Department for 15 years and 11 months. His disability pay is $500 a month less than what his average monthly wage was determined to be.

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