# FILED March 27, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

STA NLE Y A. IS OM , SR., ) C/A NO. 03A01-9708-CH-00333 ) Plaintiff-A ppellant, ) KNOX CHANCERY ) v. ) HON. F REDERICK D.McDONALD, ) CHANCELL OR KNOX COUNTY RETIREMENT & ) PENSION B OARD and KNOX ) COUNTY, TENNESSEE, ) VACATED ) AND Defendants-Appellees. ) REMANDED

CATHE RINE F. QU IST, Deputy Law Director, Knoxville, for Defendants-Appellees. JIM D . OWE N, Kno xville, for Plain tiff-Appe llant.

O P I N I

O N
Franks, J.
Plaintiff’ s action for back bene fits was dismis sed by the Chancell or, and plaintiff has appealed.

This action aros e from a dispute about di sabilit y benefits . Plainti

ff was an employee of Knox County,and on May 13, 1988 he was injured i n the course of his employment. As a resu lt of his injuries, plaintiff was entitled to both w orker’s2

compensation benefit

s and disabili

ty benefit

s under the Knox County Employ ee Benefit S ystem Plan (“P lan”). Pursu ant to the term s of the Plan , plaintiff’s disa bility benefits w ere reduce d by any work er’s comp ensation be nefits he rec eived. This reduction conti

nued in one form or another unt il April 1,1995. On No vember 2 , 1995, the S upreme C ourt issued a n opinion in McCaleb v. Saturn Corp. , 910 S.W.2d 412 (Tenn. 1995). On January 22, 1996, plaintiff’s attorney notified the defendan t Knox Cou nty Retirement and Pen sion Board (“Board”) of his bel

ief that based upon McCaleb , plainti ff was entitled t

o a refund of any prev ious of fsets. T he attorn ey also no tified K nox C ounty by an identica l letter. The Boar

d has n ot is sued a

fina l ord er or judgme nt in resp onse t

o the clai m. On Ma y 24, 1996, plaintiff filed this action in Kn ox County Cha ncery Court, essentially al

leging breach of cont

ract based upon the Board’ s failure t o refund the money. The defendant s filed a motion t

o dismiss which was grant ed on July 14, 1997. Tennessee Code Anno tated §27-9-101 provides:

Anyone who may be aggrieved by any final or

der or judgment of any board or commission funct ioning under the laws of this stat e may have said order or judgment reviewed by the courts, where not otherwise specifically provided, in the manne r provided by this chapter. Under T.C.A.§27-9-102:

Such party shal

l, within si

xty (60) days from the entry of the order or judgmen t, file a petition of certiorari in the c hancery cou rt of any coun ty in which any one or more of t he petitione

rs, or any

one or more of the material def endants res ide, or have their principa l office, stating briefly the issues i

nvolved in the cause,

the substance of t

he order or judgment complained of, of the

respects in which t

he petitione

r claims the or

der or judgment

is e rro neou s, a

nd prayi ng for an ac cord ant r

evie w. The failur e to file in Ch ancery Cou rt within the sta tutory time limits results i n the Board’s decisi

on becoming final, and onc e the decision i s final, t he1 According to the Appellees’ Brief “Appellan t and his counsel had appeared before the Appellee/Board on several occasions since 1 988 but never later appeared at a reg ularly scheduled monthly meeting of th

e Appellee/Board nor did the Appellant request to be placed on a meeting agenda.”

2 This section provides: If any err or in any acc

ount or record

is discovere

d which would

result in any

Participant’s account or benefit being more or less than it would have been had the e rror not been discovered or had the recor d been correc t, the Employer sh all correct the error by adj usting, to the extent reasonable and practicable, the indiv idual account or benefit, as the case may be. Any such correction shall be co nclusive and binding on all Participants.
3 Chan cery Cou rt is with out juris diction t o review the Bo ard’s ac tion. Thankiwe v. Traughber , 909 S.W.2d 802 (Tenn. App. 1994). The rule is mandator y and jurisdicti onal in c ivil case s. Id. (Citations omitted).

In this case, the plaintiff has not soug ht review through the statutory procedures. The Board has not acted upon the clai

m for refund. Since t

he Board has not yet rendere d a “final o rder or judg ment” on the claim, it w as not app ropriate to seek review in the Cha ncery Cour t. 1 Any of the Board’s past final orders or judgments regardi

ng plaintiff’ s case cannot be chal lenged because no appeal was perfected withi

n sixty ( 60) days, i

n accordance with the statute. The plaintiff’s current claim, how ever, relates to th e Board’ s alleged fa ilure to correc t its “error” purs uant to Section 9.06 of the

Plan. 2 The Bo ard must f irst render a fin al decision re garding this cla im i n order fo

r the pla int iff to s eek r evie w in t he Cha ncer y Cou rt. T.C. A. §27-9-101. Accordingly,we vacate the judgment of t he Trial Court and re

mand with instruct

ions that t

he matter be refer

red to the Board, wit

h directions

that the parties comply

with all necess ary procedure s to adjudicat e this clai

m to a final decision by t

he Board. We asse ss costs one -half to each party and rem and with in structions to4

proceed in accordance wit h this Opinion.

__________________________

Herschel P. Franks, J.
CONCUR:

___________________________ Don T. McM urray, J.

___________________________ William H. Inman, Sr.J.