APPEAL FROM THE LAWRENCE CIRCUIT COURT. The Honorable E. Michael Hoff, Special Judge. Cause No. 47C01-1210-PL-1651.
ATTORNEY FOR APPELLANT: LIBERTY L. ROBERTS, Church Church Hittle & Antrim, Indianapolis, Indiana.
ATTORNEYS FOR AMICI CURIAE, Indiana Association of Cities and Towns and Indiana Municipal Lawyers Association: DAVID E. BAILEY, PATRICK L. PROCTOR, Eilbacher Fletcher, LLP, Fort Wayne, Indiana.
ATTORNEYS FOR APPELLEE: EDWARD J. MERCHANT, JOHN A HENRY, Ruckelshaus Kautzman Blackwell Bemis & Hasbrook, Indianapolis, Indiana.
BARNES, Judge. FRIEDLANDER, J., and MATHIAS, J., concur.
The City of Mitchell (" the City" ) appeals the trial court's denial of its complaint for declaratory judgment related to Randy Phelix's claim for medical expenses. The Indiana Association of Cities and Towns and the Indiana Municipal Lawyers Association filed an amici curiae brief in support of the City. We reverse.
The City raises two issues, which we revise and restate as whether the trial court properly found that the City was required to pay Phelix's medical expenses under Indiana Code Section 36-8-4-5.
Phelix was employed as a police officer for the City from November 1997 through March 2008. During his employment, Phelix dismantled methamphetamine labs as part of his duties. At some point, Phelix was diagnosed with diabetes, peripheral neuropathy, systolic hypertension, and renal disease. In March 2008, Phelix advised the City that he was unable to perform his duties as a result of his health conditions, and he requested disability benefits from the Public Employees' Retirement Fund (" PERF" ) pursuant to Indiana Code Section 36-8-8-12. The City's pension board conducted a hearing on Phelix's request and found that " Phelix was suffering from an occupational disease as that term was defined in I.C. § 36-8-8-12.5(b)(1)(C)" and that " Phelix had a Class 1 impairment as defined by I.C. § 36-8-8-12.5(b)(1)(C)."  App. p. 37. The pension
board's findings were sent to PERF for review. On June 2, 2008, PERF disagreed with the City's pension board. PERF found that Phelix had a Class 3 impairment with a 20% degree of disability. Phelix appealed PERF's determination that his disability, neuropathy, was a Class 3 disability and that he had a 20% degree of impairment. Phelix maintained that " his disability was a Class 1 impairment because it was the result of his unprotected exposure to chemicals while dismantling methamphetamine labs as part of his law enforcement duties." Id. PERF's medical director, Dr. Omkar Markland, determined that Phelix's neuropathy was " caused at least in part by his diabetes, thus making it a Class 3 impairment, not a Class 1 impairment." Id. PERF referred Phelix to Dr. Brent Furbee, who concluded that " Phelix certainly described sensorimotor abnormalities of his distal extremities that could be consistent with peripheral polyneuropathy." Id. at 38. On December 1, 2008, PERF issued an amended determination, finding that Phelix had a Class 2 impairment with a 20% disability. Phelix did not appeal that determination.
In January 2009, Phelix asked the City to pay his medical expenses pursuant to Indiana Code Section 36-8-4-5. The City directed Phelix to file a claim with the City's worker's compensation carrier. In the claim, Phelix alleged that " he had suffered a work related injury from exposure to chemicals used in manufacturing methamphetamine" and that " the exposure caused him to have diabetes and tingling in his hands and feet." Id at 39. The worker's compensation carrier obtained medical records and had Phelix evaluated by a neurologist. The neurologist issued a report stating that " it was 'impossible to determine' whether the neuropathy Phelix complained of was caused by diabetes or toxic exposure." Id. at 40. On January 21, 2010, the carrier denied Phelix's claim for worker's compensation benefits on the grounds that the " [c]laim did not occur in [the] course and scope of [Phelix's] employment." Id. Phelix
did not challenge the denial of his worker's compensation
claim by making an application to the worker's compensation
board. See ...