Mitchell v. Public Employes' Retirement Board

TANZER, J. This appeal from a denial of disability retirement benefits by the Public Employes’ Retirement Board (PERB) presents similar facts and identical legal issues to those in Hoskinson v. PERB, 23 Or App 328, 542 P2d 157 (1975), except that this claimant had been a fireman for almost 30 years prior to the discovery of his heart disease. Claimant asserts that PERB erred in that it failed to accord him the presumption found in the Occupational Disease Law at ORS 656.802 that heart disease of a fireman is occupationally caused. That statutory presumption, however, is limited in its application to the Workmen’s Compensation Law, ORS 656.804. Disability cases under the Public Employes’ Retirement Act are controlled by ORS 237.171 which mentions firemen specifically, but makes no provision for a presumptive causal relationship between firefighting and heart disease. The compensation presumption does not apply to a public retirement case any more than a provision of one insurance policy applies to another policy. Therefore, PERB did not err in failing to consider it and, as in Hoskinson, we will not interfere on review with the Board’s resolution of conflicting evidence. Affirmed.