
    Johnny CRYER, Plaintiff-Appellant, v. CITY OF ALEXANDRIA Through the ALEXANDRIA POLICE PENSION AND RELIEF BOARD, Defendant-Appellee.
    No. 82-393.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 10, 1983.
    Michael Shannon, Alexandria, for plaintiff-appellant.
    B. Dexter Ryland, Alexandria, for defendant-appellee.
    Before CULPEPPER, DOUCET and YELVERTON, JJ.
   YELVERTON, Judge.

Johnny Cryer applied to the City of Alexandria, through the Alexandria Police Pension and Relief Board, for disability retirement benefits. The Pension Board denied the application, finding Cryer ineligible for benefits because he did not become disabled while in the performance of his duties. He then sued the City which responded with exceptions of no right or cause of action. The trial court sustained the exception of no cause of action and dismissed the suit. We affirm.

The petition alleges that during his adolescent years, Cryer suffered a dislocation of a shoulder while riding a bull. In later years the dislocation recurred frequently and became increasingly more difficult to correct. Plaintiff joined the Alexandria Police Department as a Police Lieutenant on March 1,1968. The dislocation hindered the performance of his duties. For these reasons he underwent surgery in 1977 in an attempt to repair the problem. The surgery was unsuccessful and resulted in an even greater limitation of his shoulder. The petition alleges that because petitioner was unable to resume his duties as police lieutenant due to his physical incapacity, his employment was terminated in late 1978.

Based on these allegations Cryer contends that he was “disabled while in the performance of his duties”, as provided by La.R.S. 33:2234(A).

There are two retirement systems applicable to the Alexandria Police Department. The first one, known as the Police Pension and Relief Fund, was the only system in effect when plaintiff became a policeman in 1968. He was a member of that system throughout his ten years on the police force. Disability retirement under that system is provided by R.S. 33:2234(A), as follows:

“The board shall retire from service in the police department any member of the department found by a majority vote of the board to have become physically or mentally, permanently or temporarily, disabled while in the performance of his duties, as determined by the report of the department physician, and shall place the retired member on the pension or relief roll.” (emphasis supplied.)

Both the District Court and the Pension Board construed the underscored language “disabled while in the performance of his duties” to mean that to qualify, plaintiff must have become disabled as a result of an injury suffered while in the performance of his duties, i.e., the disability must have been caused solely by an injury in the line of duty. Since plaintiffs disability was not caused by an injury which occurred in the line of duty, but instead by an incident that occurred in his youth before he joined the department, the conclusion was reached that he was not eligible for retirement disability.

We agree with this interpretation. We cannot subscribe to the argument that the language “while in the performance of his duties” means no more than a temporal relationship between the disability and the job, or that plaintiff need establish no more than that he became disabled while employed. Although we find no case specifically interpreting this language, we find abundant evidence in other laws dealing with the numerous statewide retirement systems in this State that the Legislature is well aware of the distinction between disability that is job related and disability for any cause, and that the language in R.S. 33:2234 means just what it says: disability retirement is available only to one who becomes disabled from an injury while in the line of duty.

The meaning and intent of a statutory provision is to be determined by a consideration of its language and all other laws on the same subject matter, and a construction should be placed on the provision in question which is consistent with the express terms of the statute and with the obvious intent of the Legislature in enacting it. Hoffpauir v. City of Crowley, 241 So.2d 67 (La.App. 3rd Cir.1970).

This construction of the language of R.S. 33:2234 is reinforced by a consideration of the disability retirement provisions of the second system applicable to policemen in the City of Alexandria. This later system, known as the Municipal Police Employees Retirement System, was created in 1973. Under this system a member qualifies for disability benefits if he is found to be totally disabled (a) solely as the result of injuries sustained in the performance of his official duties, or (b) for any cause provided the member has at least five years of creditable service. La.R.S. 42:702(1) and R.S. 33:2376(B). Similar provisions are to be found in R.S. 42:702 applicable to the State Police Retirement Fund, the Firefighters’ Retirement System, and the Sheriffs’ Pension and Relief Fund, except that in the latter system ten years of creditable service is required before benefits are allowed for disability for any cause. The eligibility requirements for disability benefits for 16 statewide retirement systems are set out in R.S. 42:702. Not one of them allows disability for any cause before at least five years of creditable service has been earned.

Germane to the instant case, and indicative of the Legislative intent with regard to the definition of disability, we note the following language in the concluding paragraph of R.S. 42:702:

“Any disability claimed by a member of a state or statewide retirement system must have been incurred after commencement of service in the system with which the claim is filed. Disability claims shall not be honored in the case of preexisting conditions.”

Plaintiff seeks benefits only under R.S. 33:2234. The petition reveals that at the time he became disabled, he had more than five years creditable service. Since he does not seek to recover under the provisions of the retirement system later enacted allowing members of the department to receive disability benefits regardless of whether they were disabled during the performance of duty, provided they had served five years, it is obvious that plaintiff elected not to join the new system when it came into existence, but instead elected to remain under the benefits of the system in effect when he joined the department in 1968, R.S. 33:2234.

We conclude that no disability benefits are available, regardless of the years of service, to members of the Police Pension and Relief Fund System, unless disability is caused by an injury in the line of duty. The Municipal Police Employees Retirement System, on the other hand, broadens the scope of protection to its members with five or more years of service credit. While the eligibility requirements under the new system are less limiting than under the old system, we note that the percentage of pay contribution required of members under the new system is higher than the contribution under the old system. Perhaps this is the reason why plaintiff elected to remain in the old pension system. Whatever the reason, he elected to remain in the Police Pension and Relief Fund System and his rights are confined to its provisions. We are powerless to give the statute a construction contrary to its plain language. Accepting the allegations of the petition as true and giving the petition the most liberal construction, nevertheless we agree with the District Court that plaintiff did not become disabled while in the performance of his duties, and his suit was properly dismissed. The actuarial integrity of the pension fund commands this result.

The judgment of the trial court dismissing plaintiff’s suit is affirmed. Costs of appeal are to be paid by plaintiff.

AFFIRMED.

DOUCET, J., dissents and assigns written reasons.

DOUCET, Judge,

dissenting.

I respectfully dissent, being of the opinion that aggravation of a pre-existing condition is compensable pursuant to LSA-R.S. 33:2234. Accordingly, plaintiff’s petition, although subject to an exception of vagueness, states a cause of action.

According to plaintiff’s petition, he began employment with the Alexandria Police Department in March of 1968, at which time he had a pre-existing shoulder injury which resulted in dislocation. In the years that followed, plaintiff alleges he “continued to suffer frequent dislocation of his shoulder, which dislocation became increasingly more difficult to correct causing petitioner continual pain and anxiety.” Plaintiff further claims that the condition continued to be aggravated to the point it hindered his performance of duties and hospitalization was required. The surgery was unsuccessful and resulted in increased disability, therefore, plaintiff applied to the City of Alexandria through the Alexandria Police Pension and Relief Board for disability retirement benefits as provided by LSA-R.S. 33:2234. The requests were denied. Thereafter, plaintiff’s employment with defendant was terminated. Suit followed wherein plaintiff sought the aforesaid benefits and full, general and equitable relief. Defendant subsequently filed peremptory exceptions of no right of action and no cause of action.

The law concerning the peremptory exception of no cause of action was summarized in Haskins v. Clary, 346 So.2d 193 (La.1977) as follows:

“[1] The peremptory exception of no cause of action tests the legal sufficiency of the petition, and is triable on the face of the papers. For the purpose of determining the validity of the exception, all well-pleaded allegations of fact are accepted as true, and if the allegations set forth a cause of action as to any part of the demand, the exception must be overruled. Pence v. Ketchum, 326 So.2d 831 (La.1976); Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975); Louisiana State Board of Medical Examiners v. England, 252 La. 1000, 215 So.2d 640 (1968).
Liberal rules of pleading prevail in Louisiana and each pleading should be so construed as to do substantial justice. La.C.C.P. art. 865; Pence v. Ketchum, supra; Eschete v. City of New Orleans, 258 La. 133, 245 So.2d 383 (1971). When it can reasonably do so, the court should maintain a petition so as to afford the litigant an opportunity to present his evidence. Pence v. Ketchum, supra, Hero Lands Company v. Texaco, Inc., supra; Eschete v. City of New Orleans, supra; Erath Sugar Company v. Broussard, 240 La. 949, 125 So.2d 776 (1961).
* * * * * *
Louisiana Code of Civil Procedure Article 931, which prohibits the introduction of evidence to support or controvert the objection that the petition fails to state a cause of action, limits the availability of such an objection as a vehicle for affirmative defenses to those which are disclosed by the petition itself. See, Steeg v. Lawyer’s Title Insurance Corporation, 329 So.2d 719 (La.1976); American Creosote Company v. Springer, 257 La. 116,241 So.2d 510 (1970); Roloff v. Liberty Mutual Insurance Company, 191 So.2d 901 (La.App. 4th Cir.1966); Smith v. Williams, 152 La. 948, 94 So. 859 (1922); McMahon, The Exception of No Cause of Action in Louisiana, 9 Tul.LRev. 17 (1934-35).
The general rule applicable to trial of such exceptions is that an exception of no cause of action must be overruled unless the allegations of the petition exclude every reasonable hypothesis other than the premise upon which the defense is based; that is, unless plaintiff has no cause of action under any evidence admissible under the pleadings. West v. Ray, 210 La. 25, 26 So.2d 221 (1946); Babineaux v. Southeastern Drilling Corp., 170 So.2d 518 (La.App. 3d Cir.1965). Because a petition is subject to more than one interpretation or is vague, does not mean that it is fatally deficient. A vague, uncertain, or indefinite petition is subject to an exception of vagueness, but not to an exception of no cause of action. Brunson v. Mutual Life Ins. Co. of N. Y., 189 La. 743,180 So. 506 (1938); Goldsmith v. Virgin, 122 La. 831, 48 So. 279 (1909).” (Emphasis added).

LSA-R.S. 33:2234 provides in pertinent part:

A. The board shall retire from service in the police department any member of the department found by a majority vote of the board to have become physically or mentally, permanently or temporarily, disabled while in the performance of his duties, as determined by the report of the department physician, and shall place the retired member on the pension or relief roll. (Emphasis added).

At the present time there are two retirement systems applicable to the Alexandria Police Department, one of which is R.S. 33:2234, supra, and the other being R.S. 33:2376. Only the former is applicable to plaintiff nonetheless counsel for defendant, in hearings befor the trial court, referred to R.S. 33:2376 as being suggestive of the legislative intent in enacting R.S. 33:2234.

The relevant portions of R.S. 33:2376 state:

A. Eligibility for disability benefits, procedures for application for disability benefits, procedures for the certification of continuing eligibility for disability benefits, the authority of the board of trustees to modify disability benefits, and procedures governing the restoration to active service of a formerly disabled employee are specifically described and provided for in R.S. 42:702 through R.S. 42:706.
B. The board of trustees shall award disability benefits to eligible members who have been officially certified as disabled by the State Medical Disability Board. The disability benefit shall be determined as follows:
Upon application for retirement due to a total and permanent disability, any member with at least five years creditable service, unless the disability is caused solely as the result of injuries sustained in the performance of his official duties, and who is unable to engage in any gainful employment shall receive a disability benefit equal to sixty percent of his average final compensation. Any member who is totally and permanently disabled from performing the duties as an employee as defined in R.S. 33:2372(2), but is able to engage in a gainful employment, shall receive thirty percent of his average final compensation. For disability retirement purposes only, the average final compensation shall consist of the highest paid thirty-six consecutive months salary earned prior to the date of the cause of the disability. In no case shall the disability benefit be approved by the board of trustees until all employee and employer contributions are paid to the retirement system, covering through the date of the cause of the disability claim or the date of termination of employment, or both, whichever is applicable.

As counsel for defendant noted at trial court proceedings, “in the second pension it seems clear that they recognized the deficiency of the first pension” inasmuch as those with the requisite amount of service are afforded benefits even in those circumstances where the disability is not incurred in the line of duty and those without the requisite years of service are afforded benefits only where the disability is total and permanent and “caused solely as the result of injuries sustained in the performance of his official duties.” R.S. 33:2376. LSA-R.S. 42:702(1) also refers to “totally disabled (a) solely as the result of injuries sustained in the performance of his official duties.” Thus it appears that the legislature intends to limit the right of recovery prospectively, with regard to employees to whom R.S. 33:2234 is not applicable and those without the requisite amount of service, to those injured in the line of duty and as a sole result thereof are rendered totally disabled.

On the other hand, R.S. 33:2234 provides benefits where a member of the police department is “permanently or temporarily, disabled while in the performance of his duties.” There is no reference to injury occurring in the performance of duty rendering the member disabled. Furthermore, there is no indication that the sole cause of the disability must be an injury in the line of duty. There is no definition of “disability”, nor is there any jurisprudence indicative of the above clause’s interpretation.

It is axiomatic that remedial statutes are to be liberally construed. State v. Boniface, 369 So.2d 115 (La.1979). What is a liberal construction is ordinarily one which makes the statutory rule or principle apply in more situations than would be the ease under a strict construction. State v. Boniface, supra; Wiley v. Missouri Pacific Railroad Co., (La.App. 3rd Cir.1982) Docket No. 82-229. Applying the proper rules of interpretation to R.S. 33:2234, the only statute applicable to plaintiff, I believe that the statute allows for benefits where the performance of official duties causes an injury to become disabling. A like result would be reached if we were to apply the analogous egg-shell principle found in tort law or the workmen’s compensation maxim that aggravation of a pre-existing condition is compensable. There is no indication that a contrary result was intended insofar as R.S. 33:2234 is concerned. The petition states a cause of action, albeit it does so rather vaguely.

Whether plaintiff could prove that performance of his duties caused his pre-exist-ing injury to become disabling is irrelevant to our review of whether petitioner should be allowed his day in court.

For the reasons assigned, I respectfully dissent. 
      
      . The formal judgment indicates that the dismissal was based on the sustaining of an exception of no right of action. However, this was clearly an inadvertence or typographical mistake, since a colloquy in the record between court and counsel indicates that the court recognized plaintiff had an interest in the right asserted and that he had a right of action. Therefore, we address the exception of no cause of action.
     
      
      . The question of whether plaintiff is entitled to benefits is subject to judicial review in spite of, or in view of action taken by the board. Hoffpauir v. City of Crowley, 241 So.2d 67 (La.App. 3rd Cir.1970), Wr. denied 242 So.2d 578.
     