# FILED
April 15, 1998 Cecil W. Crowson Appellate Cou rt Clerk 

### IN THE COURT OF APPEALS OF TENN ESSEE

AT NASHVILLE

LEON PARDUE, JR., ) ) Plaintiff/Appellant, ) ) Appeal No. ) 01-A-01-9707-CH-00312 VS. ) ) Davidson Chancery ) No. 96-1232-II THE METROPOLITAN GOVERNMENT ) OF NASHVILLE & DAVIDSON ) COUNTY and the METROPOLITAN ) EMPLOYEE BENEFIT BOARD, ) ) Defendant/Appellee. )
APPEALED FROM THE CHAN CERY COUR T OF DAVIDSO N COUNTY AT NASHVILLE, TENNESSEE THE HONORABLE CAROL L. Mc COY, CHANCELLOR

ANN BUNTIN STEINER STEINER & STEINER 214 Second Avenue North Suite 203 Nashville, Tennessee 37201- 1644 Attorney for Plaintiff/Appellant JAMES L. MURPHY, II I Director of Law Department of Law of the Metropoli tan Government of Nashvill e and Davidson County CHRISTI E. PEARSON 204 Metropolitan Courthouse Nashville, Tennessee 37201 Attorney for Defendant/Appellee

AFFIRMED AND REMAN DED

BEN H. CANTRELL, JUDGE CONCUR: TODD, P.J., M.S. KOCH, J. 

## O P I N I O N- 2 - In this appeal of the Metropolitan Benefit Board’s deni al of a disability pension, the petitioner asserts that the decision is unsupported by substantial and material evidence, that the Board shou ld ha ve given m ore weight to the trea ting physician’s testimony, and that the reviewing co urt shoul d have con ducted a de novo review of the Board’s decision. The Chan cery Court of Davids on County conducted a limited r

eview and

dismissed the petition.We affirm.

I.

Leo n Pardue, Jr., an employee of the Metropolitan Public W ork s Department, applied for a medical pension in Novemb er of 1994. Hi s claim, supported by the opinion of his tr ea ting physician, w

as that a degenerative j oint disease and chronic

pain syndr

ome rendered him unable to perform his duties as a loader and driver of a chippe r truck . The Metropolitan Benefit Board referred Mr. Pardue to independent medical and psyc hological specialist

s , a nd the specialists reported that they could find no objective basis for work restricti ons. On August 14, 1995, the Board denied the disabil ity application.

From August of 1995 until February of 1996 the question bounced from
one committee to another, to the Board and back to the committees. The record was periodicallysupplemented with other medical evidence, and at one p ointthe pension
com mi ttee recommended that the Board reconsider its prior action and grant Mr. Pardue a pension retroactive t o September of 1994. The motion failedin a tie vote before the Board. On February 26, 1996, the Board voted for a final time and refused, by a vote of four to three, to reconsider its prior denial.

II.- 3 - O n appe al Mr. Pardue argues th at the Board’s action should be reviewedunder the Tennessee Administrati ve Procedures Act, Tenn. Co de Ann. § 4- 5-101, et seq. TheBoard, however, is an ag ency of the Metropolitan Gov ernment of Nashville and Davidson Co un ty, and the Administrativ e Procedures Act does not
cover “county and munic i pal boards, commissions, commit tees, departments or offices.” See Tenn. Code Ann. § 4-5-106(a).The proper meth od of re viewing a decision denying a pensi on to a civil servant is by the common law writ of certiorari. Kendrick v. City of C

hat tanooga , 799 S.W.2d 668 (Tenn. App. 1990); Tenn. Code Ann. § 27-9-114.

Under the common law writ our r evi ew of the evidence is severely limited. We only examine the record to see if there is any material evidence to support the Board’s action. Watts v. Civil Service B d. , 606 S.W.2d 274 (Tenn. 1980); Lansden v. Tucker

, 321 S.W.2d 795 at 797 (Tenn. 1959). In this case there is evidence in the record from which the Board could conclude that Mr. Pardue w as not disabled. More than one examining physician rend e red an opinion that Mr. Par due could return to work.

III.

In a related argume nt, Mr. Pardue contends that i n weighing the evidence before it, the Board should have given greater weight to the testimony of his treating physician. The cases cited for that proposition, howev er, do not support the argument. In Cro s sno v. Publix Shirt Factory, 814 S.W.2d 730 (Tenn. 1991), a worker’s compensation c ase decided by a trial j udge, the Supreme Court said: When the medical testimony differs, the trial judge must obviouslychoose which view to b eli eve. In doing so, he is allowed, among other things, to consi d er the q ualificationsof the experts, the circums tances of the i r examination, the info rmation ava ilable to them, and the evaluation of the importance of that information by other experts.- 4 -

814 S.W.2d at 731. While the trial judge did giv e more weight to the tr eating physician’s testimony in that case, the rule announced by the Supreme Court
concernsthe credibility of the witnesses r ath er than whether the witness was a treating or a consulti ng physician.

The Board’s authority is derived from section 3.28.060 of th e Metropolitan Code. That section provides:

The board sha ll have the exclusive author ity to determine the disability and continuatio n of disability of a disabled member . . . An applicant

for a disability pension shall furnish to the board a “disabilit y report,” as prov

ided in this sec tio n, and such other medical or other information as mayreasonably be

required by

the board for the purpose of esta blishing disability. The board may secure additional medical or ot her e vidence as it deems necessaryand appropriate. On the basis of the disability report, medica l and other information as the board has assembled, the board shall thereupon determine whether or not the applicant is a di sabled member. . . .”

This provision does not require the Board to give more weig ht to any parti cu lar

part of the evidence before it. We think that the Board has the power to make its own decision with respect to the credibility of the witnesses.

IV.
Finally, Mr. Pard ue argues that the courts should review the record de
novo under

section 12.07(h) of the Metropolitan Charter. That section , applicable only to a review of a decision by the Civil S erv ice Comm ission, p rovides f or a de novo review of a decision dismissing an employee fr om the service.

In Bush v. Employee

Benefit Board , 792 S.W.2d 932 (Tenn. App. 1990),
we held that the Benefit Board of the Metropolitan Government and the Civil Service Commission are distinct and separate boa rds exercising di screte functions prescribed- 5 -

by the Met ropolitan Charter. The char ter provisions affecting one board or commission do not apply to the other. Ther efore, the de nov o review provi sions affecting the Civil Serv ice Commission do not apply to the Benefit Board.

The judgment of the trial court i s affirmed. The cause is remanded to the Chancery Court of Dav idson County for any

further proceedings necess ary. Tax the costs on appeal to the appellee.

____________________________ BEN H. CANTRELL, JUDGE

CONCUR:

_______________________________ HENRY F. TODD, PRESI DING JUDGE MIDDLE SECTION

_____________________________ WILLIAM C. KOCH, JR., JUDGE