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Dolan v. Fire and Police Pension Association

Court of Appeals of Colorado, First Division

April 20, 2017

William P. Dolan, Plaintiff-Appellant,
Fire and Police Pension Association, Defendant-Appellee.

         Arapahoe County District Court No. 12CV1559 Honorable Elizabeth A. Weishaupl, Judge

          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


          GRAHAM JUDGE

         ¶ 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.

         I. Background

         ¶ 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 Directors (Board).

         ¶ 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 FPPA.

         ¶ 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 2016.

         ¶ 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 ...

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