William P. Dolan, Plaintiff-Appellant,
Fire and Police Pension Association, Defendant-Appellee.
County District Court No. 12CV1559 Honorable Elizabeth A.
Brosseau Bartlett Seserman, LLC, David B. Seserman, Michael
Y. Ley, Greenwood Village, Colorado, for Plaintiff-Appellant
Hoffman Parker Wilson & Carberry, P.C., M. Patrick
Wilson, Denver, Colorado, for Defendant-Appellee
1 In this suit over firefighter occupational disability
benefits, we are asked to determine whether full-time
employment as a fire chief precludes a firefighter from
collecting occupational disability benefits because the
position of fire chief directly involves "the provision
of . . . fire protection" under the Policemen's and
Firemen's Pension Reform Act (the Act), sections
31-31-101 to -1203, C.R.S. 2016. We conclude that it does
and, therefore, affirm.
2 Plaintiff, William P. Dolan, appeals the district
court's judgment upholding the discontinuation of his
occupational disability benefits by the Fire and Police
Pension Association (FPPA), as affirmed by its Board of
3 Dolan is a career firefighter. He joined North Metro Fire
Rescue in 1986, and in 2007, he sustained a right elbow
injury that prevented him from passing the physical tests for
firefighting duties. After approximately two years of
attempted rehabilitation, North Metro terminated Dolan. He
promptly filed for occupational disability benefits with the
4 While working for North Metro, Dolan also worked for the
Elk Creek Fire Protection District in both paid and unpaid
capacities. From 1998 to 2003, Dolan was the paid fire chief
of Elk Creek. He returned to volunteer service at Elk Creek
during 2008, while rehabilitating his elbow. In May 2010, Elk
Creek again hired Dolan as its paid fire chief.
5 In July 2010, Dolan appeared at a hearing to determine
whether he was entitled to occupational disability benefits.
In pertinent part, Dolan testified he was the
"administrative chief" for Elk Creek. The hearing
officer determined Dolan was eligible for permanent
occupational disability benefits based on his injury. The
Death and Disability Review Committee of the FPPA adopted the
hearing officer's findings and awarded Dolan permanent
occupational disability benefits pending "a
certification from the [Elk Creek] Board [of Directors] that
this position at Elk Creek Fire is strictly administrative in
nature and that your job duties are not directly
involved with the provisions of fire protection."
6 The Elk Creek Board sent a copy of its contract with Dolan
to the FPPA. While the Elk Creek Board informed the FPPA that
Dolan was "Administrative Fire Chief" and was
"hired to manage the finances and the department and
does not respond as part of our fire protection activities,
" the contract signed by Dolan assigned him the title of
"Fire Chief" and required that he "carry out
all statutory duties imposed upon the Fire Chief by the
Special District Act or any other Federal, State or local law
or ordinance." The contract also stated "[t]he Fire
Chief is not required to perform firefighting or emergency
medical duties, but shall, at his discretion, act in a
command position at emergency incidents as needed and as
determined by the Fire Chief."
7 After reviewing the contract, the FPPA met with Dolan. The
FPPA was concerned that the terms of the contract required
Dolan to execute "duties . . . directly involved with
the provision of . . . fire protection" under section
31-31-806, C.R.S. 2016, making him ineligible for disability
benefits. While the substance of that meeting is a matter of
dispute, it is undisputed that following that meeting Dolan
immediately resigned from his position at Elk Creek.
8 The FPPA then began paying Dolan disability benefits,
including back pay to his last day on payroll at North Metro.
9 In early 2011, an Elk Creek Board member reached out to the
FPPA regarding Dolan's appearance at fire and emergency
scenes. Based on this information, the FPPA subpoenaed Elk
Creek's records pertaining to Dolan. Elk Creek produced
National Fire Incident Reporting System (NFIRS) reports
showing Dolan had responded to 72 incidents in 2010 and had
participated in another 170 incidents.
10 The FPPA issued a notice of determination suspending
Dolan's disability benefits in May 2011. Because the FPPA
accused Dolan of fraudulently obtaining his benefits, it held
a hearing. The hearing officer ultimately determined that
Dolan had not fraudulently obtained benefits, but because his
position at Elk Creek had involved fire protection, he was
ineligible for benefits under section 31-31-806 of the Act.
The officer recommended Dolan repay the benefits he received
after May 10, 2010, the date he signed his employment
contract with Elk Creek.
11 The Board met in July 2012 and affirmed the hearing
officer's recommendation. Dolan filed for C.R.C.P. 106
review of the Board's decision in district court. He also
asserted several common law claims against the FPPA.
12 The district court affirmed the decision of the Board.
Dolan then filed a motion to amend his complaint, which the
court denied as untimely. A trial to the court was held on
Dolan's remaining common law claims. The court found for
the FPPA and entered final judgment against Dolan in February
13 On appeal, Dolan presents two arguments. First, he argues
the Board and the district court misapplied the law in
discontinuing his disability benefits because, since his
termination from North Metro, he has never been re-employed
in a position directly involved with the provision of fire
protection under section 31-31-806. Second, he contends the
district court erred in denying his motion to ...