### No. 92-351 IN THE SUPREME COURT OF THE STATE OF MONTANA

JOE SILVA,Plaintiff and Appellant,

-vsCITY OF COLUMBIA FALLS, Defendant and Respondent.

APPEAL FROM: District Court of the Eleventh Judicial District, In and for the County of Flathead, The Honorable Michael H. Keedy, Judge presiding.

COUNSEL OF RECORD: For Appellant: John

### H. Bothe and Lauri Wallace; Bothe 6t 

### ~auridsen, Columbia Falls, Montana For Respondent: Katherine R. Curtis, City Attorney, Columbia Falls, Montana

Filed: submitted on Briefs: November 12, 1992 Decided: May 18, 1993Justice Karla 

### M. Gray delivered the Opinion of the Court. Appellant Joe Silva (Silva) appeals from an order of the EleventhJudicial DistrictCourt, FlatheadCounty,granting summary judgment to the City of Columbia Falls, Montana (the City)

# . We affirm. On January 15, 1989, Silva, 

### a Columbia Falls police officer, suffered an industrial injury tohis left thighwhen he was kicked by an individual he was attempting to arrest. Silva was immediately eligible for workers' compensation because the injury occurred while he was on duty, and he has received benefits under the Workers' Compensation Act 

### since the date of his injury. It appears that 

### in approximately March 1989,while he was still off 

### duty due 

### to his leg injury, he fell down some steps. Silvabegan treatment forhis left thigh injury on January 20, 1989, with Dr. Chet Hope, his family doctor in Columbia Falls. On March 2, 1989, Silva applied in writing for police disability retirement benefits, based on a letter from Dr. Hope stating that Silva was currently unable to return to work 

### as a police officer. The claim was denied on March 30, 1989. According to a letter to Silva from the city attorney, benefits were denied because statements from Dr. Hope indicated that Silvafsinjury would not result inpermanent disability or permanent impairment and because

an evaluation by the Kalispell Orthopedic Clinic indicated that Silva should be able to return to work 

### in the near future. Silva was evaluated by an Evaluation Panel at St. Patrick Hospital inMissoula 

### inAugust, 1989. No specific trauma could be 2identified as the cause of Silva's left thigh pain. In addition, the evaluation indicatedthat Silva's lumbar spineproblemmightbe related to his fallingdown stepsand that theremight bepermanent partial impairment of his lumbar spine. Surgical treatment of the lumbar spine specifically was not recommended. The conclusion of the Evaluation Panel was that Silva could return to work on a gradual basis. In September 1989, the City, through its chief of police, advised Silva that he would be scheduled to begin a gradual return to work on September 27, 1989, unless he was still on certain medicationprescribed by hisdoctor. Dr. Hope subsequentlyadvised the chief of police that Silva continued to require medication for inflammation and pain; Dr. Hope was uncertain how long the medication would be needed. On March 2, 1990, Silva was examined by Dr. James H. Mahnke, a neurosurgeon, for the purpose of obtaining an opinion aboutback surgery. Dr. Mahnke's opinion,based on anmIscandone inAugust 1989 and onhis own examination,was that Silva was suffering from

a back lesion that would respond only to surgery. Dr. Mahnke did not connect the lesion to the January 1989 injury at that time. On June 6, 1990, the city attorney informed Silva that the City could no longer hold his position on the police force open. Shenoted the conclusion of the independent medicalpanel in August 1989 that he could return to work on a gradual basis and advised that the City would terminate him as a police officer unless he arranged to return to work by July 6, 1990.On June 13, 1990, Silva renewed his request for police disability retirement benefits. In renewing the request, Silva's attorney stated "it isquite apparent that he isnow precluded from returning to work as a patrolling officer 

# . . . ." The attorney subsequently forwarded a letter from Dr. Mahnke, dated June 11, 1990, stating that Silva's back lesion was attributable to his industrial injury inJanuary 1989 and that Silva "wasdisabled from working as a police officer from the time of that injury." This letter,received by the City on June 21, 1990,was the City's first medical evidence indicating that Silva was permanently disabled from performing his duties as a police officer. The Police Commission of the City of Columbia Falls (Police Commission) considered Silva's reapplication for benefits on September 7, 1990, and determined that Silva was entitled to disability retirement benefits effective on that date. Silva disputed the Police Commission's use of September 7, 1990, as his entitlementdate. The PoliceCommission subsequently decided that Silvawas entitled todisability retirement benefits effectiveJune 21, 1990, the date the City first received medical evidence that Silva was permanently disabled from performing his duties as a police officer. Silva filed a complaint inDistrict Court alleging that hewas entitled to payment of disability retirement benefits retroactive to the date of his injury. 

### He contended that the Police Commission's decisionnot topay disability retirement benefits for the period between the date 

### of his injury and June 21, 1990, wasarbitrary and capricious and that it violated 

### $5 19-10-402 and 19- 10-502, MCA. The City moved to dismiss the complaint,presented additional evidence and affidavits,and requested that itsmotion be converted to one for summary judgment. Silva filed a cross-motion for summary judgment

# . TheDistrict Courtrejected the city's argument that ithad no authority to review a local government agency's decision, but granted the City's motion for summary judgment on other grounds. The court determined that applicable statutes do not provide an express time when a transfer from the active duty list to the retired list is to take effect. It concluded that the Police Commission had discretion in deciding when an officer would be transferred to the retired list and, as a result, entitled to receive disability retirement benefits. Reviewing the evidence before it, the court then concluded that the Police Commissionhad not acted without 

### a reasonable basis 

### in making Silvalsdisability retirement benefits effective June 21, 1990- Silva appeals. The sole issue before us is whether the District Court erred in granting summary judgment in favor of the City. Initially, we note the City's argument on appeal that 

### the District Court erred 

### in refusing to dismiss Silvaqscomplaint for failure 

### to state a claim on the basis that the court had no authority for judicial review of a police cornmission~s decision regarding disability retirement benefits. We also note that the City failed to cross-appeal on this issue. Where a respondentseeksreview of rulings onmatters separateand distinct from those sought tobe reviewedby an appellant,a cross-appeal isnecessary. Rouse v. Anaconda-Deer Lodge County (1991), 250 Mont. 1, 817 P.2d 690;Johnsonv. Tindall (1981), 195Mont. 165, 635P.2d 266. Thus,

we are precluded from addressing this issue on appeal. Silva argues first that the District Court erred as a matter of law in interpreting 5 19-10-402 and 19-10-502, MCA. Our standard in reviewing a court's conclusion of law is whether the court is correct. Steer, Inc. v. Dep't of Revenue (lggO), 245 Mont. 470, 475, 803 P.2d 601, 603. Inessence, Silva argues that 55 19-10-402 and 19-10-502,MCA, require thepayment of police disability retirement benefits as of the date of the original injury or disability. Section 19-10-502, MCA, provides for both the amount and commencement of disability retirementbenefits: when an officer is transferred to the retired list, "heshall thereafter receivemonthly payments from the city's police retirement fund 

## . 

# . . ." Nothing in the statute requires payments to be made before transfer to the retired list or for any period of time prior to the transfer from the active list to the retired list. Section 19-10-402, MCA, sets forth how the determination of transferring a police officer injured or disabled in the line of duty from the active list to the retired list--for purposes of receiving the disability retirement benefits specified in 

### 5 19-10- 502, MCA--is made. The statute mandates transfer to the retired list when anofficer receivesduty-related injuriesordisabilities

### and the injuries 

### are, "in the opinion of the board of police commissioners or city council of the city or town, of such character as to impair his 

### ability to discharge his duties as an active police officer 

# . . . 

# ." Section 19-10-402, MCA. The statute is clear that the appropriate entity has discretion in making the determination as to whether and when the injuries or disabilities permanently impair the officer's ability to perform. A transferto the retired list ismandatory only upon themaking of such an impairment determination. Silva concedes that neither statute expressly states when a transfer to the retired listmust take effect. He argues that the statutes, read together, require benefit commencement as of the date of the onset of the injury or disability. Our discussion of the statutes makes it clear that such a conclusion isunwarranted. No express time for transfer to the retired list 

### is contained in either § 19-10-402 or 5 19-10-502, MCA; furthermore, 

### 5 19-10-402, MCA, does contain plain language vesting discretion in the police commission or city council authorized to make the impairment determination and 

### any corresponding transfer to the retired list. To accept Silva's argument would require this Court to insert a provision into the statute

### which is not contained therein; 

### it also would require us to insert a provision inconsistent with the legislative determination of when 

### and how disability retirement benefits are to be paid. The role of this Court is to ascertain what 

### is contained in statutes; it 

### is not our role 

### to insert or

### vary provisions of statutes adopted by the Montana legislature. See 

### 51-2-101, 

### MCA. Silva also suggests that statutes governing other retirement systems in Montana, particularly the public Employees1~etirement System (PERS), buttress his statutory interpretation of 55 19-10- 402 and 19-10-502,MCA. We disagree. Like the statutes before us, the PERS authorizesa specific entity todeterminewhether amember has become disabled. See 5 19-3-1003,MCA. Unlike the applicable statutes here, however, public employee disability retirement benefits are to commence "on the day following the member's last day of membership service." Section 19-3-1006, MCA. Thus, in the PERS, the legislature specifically provided a date certain-- related towhen themember stoppedworking--forthe commencementof benefits, Such a date certain is not contained in 5 19-10-402 or B 19-10-502, MCA. Further, 5 19-3-1006,MCA, makes it clear that the legislature is aware of how to provide for a result similar to that argued by Silva here. It did not adopt such a provision for local government police disability retirementbenefits. We conclude that 

### $5 19-10-402 

### and 19-10-502, MCA, do not require that police disability retirement benefits commence or be paid as of the date of the original injury or disability. As a result, we hold that the District Court did not err in its statutory interpretation. Silvalssecond assertion of error relates to the District Court's failure to conclude that the Police Commission acted arbitrarily and capriciously in making his disability retirement benefits effectiveJune 21, 1990. 

### Silva contends that 

### there was atotal 

### lack of record support for the police ~omrnission~s determination and that,asa result,thedecisionwas arbitrary and capricious. We note here that this case does not present itself in the usual posture of a review by this Court of a grant of summary judgment. The ~istrictCourt determined that it had inherent authority to review actions of an administrative agency under the "arbitrary and capriciousf1standard alleged by Silva in his complaint and proceeded to review the Police Commission's determination pursuant to that standard. As discussed above, the City did notproperly raise on appeal the issue

### of whether judicial review of the Police ~ommission~s decision was available, thereby precluding our review. Thus, for purposes of this appeal, we assume arguendo that theDistrict Courthad authority to reviewthe Police Commissionls action pursuant to the "arbitrary and capriciouswstandard. Our review is confined towhether the court 

### erred 

### in determining that the Police Commission's action was not Itwithout reasonable basisn and, therefore, 

### not arbitrary 

### or capricious. WebsterrsNinth New Collegiate Dictionarydefines "a~bitrary'~ to mean "existing or coming about seemingly at random or 

### by chance



### or as a capricious and unreasonable act 

### of will;*I similarly, 'Jcapriciousv is defined as "characterized by a sudden, impulsive and seemingly unmotivated notion or action," Thus, a review by a district court or this Court of an action under the "arbitrary and capri~ious~~ standard does not permit a reversal merely because the

### record contains inconsistent evidence or evidence which might support a different result. Rather, the decision being challenged must appear to be random, unreasonable 

### or seemingly unmotivated, based on the existing record. ~ike the District Court, we cannot reach such a conclusion regarding the Police Commission~s determination to make Silva's disability retirement benefits effective June 21, 1990. Silva was originally injured on the job inJanuary, 1989. H~S first application for disability retirement benefits, in March 1989, was denied. Medical evidence 

### at the time indicated that Silva would be able to return to work. In August, 1989,medical evidence indicated that Silva was able to return to 

### work on a gradual basis at that time. The firstmedical.statement that Silva would notbe able to return tohis position as a police officerwas received by the City on June 21, 1990. While Dr. Mahnke also indicated in that statement thathe thought Silva had been disabled 

### from working as a police officer from the date of the injury 

### in January 1989,that statement conflicted with the medical evidence noted above covering much of that period. We cannot conclude, on the basis of this record, that the Police Commissionlsdecision to make silvalsdisability retirement benefits effectiveon thedate the City received theMahnke letter, and 

### its refusal tomake thebenefits effective at any earlier time,

was arbitrary and capricious. substantial evidence exists to support the decision and,while other decisions also

### may have been appropriate, we cannot conclude as a matter of law that thedecision is random, seemingly.unmotivatedor unreasonable based on the record before the Police Commission, the District Court and this Court. The District Court did not err. AFFIRMED.

We concur:

### May 18,1993 CERTIFICATEOFSERVICE 

### Iherebycertifythatthefollowingorderwas sentbyUnitedStatesmail,prepaid,tothe followingnamed:

John

### H.Bothe and LaurieWallace Bothe&

### Lauridsen P.O. Box2020 ColumbiaFalls,MT 

### 59912 KatherineR.Curtis, Esq. CityofColumbiaFalls P.O. Box329 ColumbiaFalls,MT 

### 59912 EDSMITH CLERKOF

### THESUPREMECOURT