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IN THE CIRCUIT COURT OF THENINTH JUDICIAL CIRCUIT, IN ANDFOR ORANGE COUNTY, FLORIDADAVID MIXON,Petitioner,CASE NO.: 2007-CA-14980-Ov. WRIT NO.: 07-67CITY OF ORLANDO,POLICE PENSION BOARD,Respondent./Before ADAMS, THORPE, PERRY, JJ.FINAL ORDER GRANTING PETITIONFOR WRIT OF CERTIORARIDavid Mixon (“Petitioner”) timely filed this petition seeking certiorari review of the Cityof Orlando Police Pension Board of Trustees’ (“Board”) final order dated November 8, 2007,denying his application for service-connected disability pension funds. This Court hasjurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(c)(3). We dispense with oralargument pursuant to Florida Rule of Appellate Procedure 9.320.The Petitioner joined the Orlando Police Department (“OPD”) on August 18, 1991. Hispre-employment physical examination failed to reveal any pre-existing condition that wouldpreclude him from receiving disability pension funds. On October 22, 2002, the Petitioner wasinvolved in an automobile accident while on duty. While stopped at a red light, another vehiclestruck the Petitioner’s patrol vehicle. The rear end of the Petitioner’s vehicle was completely1

destroyed. The Petitioner was taken to the hospital by ambulance where he was treated andreleased.Subsequent to the accident the Petitioner suffered from extreme pain in his lower backand sought treatment from Dr. Grady McBride who prescribed physical therapy and shots for hispain. Additionally the Petitioner was treated by a chiropractor, Dr. Dennis Filosa, whoconcluded that the Petitioner’s injury was the result of his auto accident, and not the result of apre-existing injury. The Petitioner returned to work while undergoing pain management shotsand utilizing a lighter, nylon gun belt in an effort to minimize the strain on his back.Petitioner’s second on-duty auto accident occurred on October 17, 2005, while travellingon the interstate. His patrol vehicle was caught between two other vehicles in the front and rear.The resulting injuries to the Petitioner’s neck and back caused him severe and intense pain.Following medical treatment the Petitioner was placed on modified duty, effectively limiting hisphysical activity in order to help manage his pain.Petitioner pursued all medical options, save for surgical fusion of vertebrae in his lowerback, to relieve his pain. His doctor’s informed him that in any event surgery would still leavethe Petitioner in a condition where he would be unable to fulfill the requisite duties of a policeofficer. With that being the case, the Petitioner chose to file his line of duty disability pensionapplication with the Board.On September 24, 2007, an evidentiary hearing was held before the Board. The evidenceincluded testimony by the Petitioner; deposition and physicians’ reports by Dr. Faissal Zahrawi,who conducted the Independent Medical Exam (“IME”), and Dr. Alexander Jungreis; as well asphysician reports from Dr. Grady McBride and Dr. Michael Broom.2

Dr. McBride found that the Petitioner suffered from: (1) lumbosacral strain, (2) L5-S1spondylolisthesis, and (3) bilateral carpal tunnel syndrome, after his 2002 accident. In hisopinion, the Petitioner’s symptomatology resulted from his accidents. Eventually Dr. McBridedetermined that the Petitioner reached maximum medical improvement (MMI) and 0% PPI forhis 2002 accident. He cleared the Petitioner for return to regular work duty as of April 30, 2003.Following the Petitioner’s second accident, Dr. McBride diagnosed the Petitioner with: (1)cervical strain, (2) cervical degenerative disc disease, and (3) small disc herniation at C6-7. Asthe Petitioner was being treated by another doctor for his lower back, Dr. McBride found that thePetitioner had reached MMI for his cervical spine and cleared him for return to regular duty.Dr. Alexander Jungreis examined the Petitioner on numerous occasions beginning inMarch 2003. His initial diagnosis was that the Petitioner suffered from: (1) lumbarspondylolysis and (2) lumbar dystonia secondary to lumbar spondylosis. After numerous MRI’s,Dr. Jungreis’s assessment of the Petitioner was that he suffered from: (1) lumbar spondylosis, (2)bilateral L5 pars defect without anterolisthesis, (3) lumbar herniated disc, and (4) chronic painsyndrome. In preparing his physician’s report for the Board, Dr. Jungreis gave the Petitioner a9% disability rating and indicated that the Petitioner could not return to normal duty, even if asuccessful surgical fusion was performed. Finally, to the best of his knowledge, Dr. Jungreisstated that the Petitioner’s injury was sustained in the line of duty and not due to a pre-existingmedical condition.Dr. Michael Broom examined the Petitioner after Dr. Jungreis referred him there for asurgical evaluation. An MRI from December 2005, revealed desiccation at L5-S1 with mildprotrusion and high intensity zone, L5 pars defect and slight spondylosthesis of L5-S1. Inpreparing his physician’s report for the Board, Dr. Broom gave the Petitioner an 8% disability3

ating and indicated that the Petitioner’s 2005 accident aggravated his condition. Dr. Broom alsonoted that the Petitioner’s L5 pars defect and spondylolisthesis were present prior to 2005. OnMay 30, 2007, Dr. Broom added an addendum to the Petitioner’s file stating that after reviewingthe Petitioner’s pre-employment x-rays he saw evidence of probable L5 pars defects, but noevidence of spondylolisthesis. 1Dr. Faissal Zahrawi performed the Board’s Independent Medical Examination (IME) onthe Petitioner. He concluded that the Petitioner had a bulged L5-S1 disc and bilateralspondylolysis, but no spondylolisthesis. In Dr. Zahrawi’s IME report, he stated that thePetitioner had a preexisting condition and the positive effects were not a result of a motor vehicleaccident. The Petitioner’s motor vehicle accidents aggravated his back problems that had beenpresent prior to his employment. In Dr. Zahrawi’s opinion, the Petitioner could perform mostactivities expected of a police officer.After the hearing the Board concluded that the Petitioner was permanently and totallydisabled, the first prong in the Board’s standard procedure to determine pension eligibility. TheBoard next concluded that the Petitioner suffered from a preexisting condition, the aggravationof which caused his present condition. On this basis, the Board denied the Petitioner’sapplication for line of duty disability retirement. The Board issued a Final Order stating theirconclusions, and it is from this Final Order that the Petitioner seeks review before this Court.The Court’s review of an administrative agency decision is governed by a three-partstandard of review: (1) whether procedural due process was accorded; (2) whether the essentialrequirements of the law were observed; and (3) whether the decision was supported by1 Dr. Broom’s physician’s report indicates L5 pars defect since childhood, and spondylolisthesis existing prior to theinjury. His addendum, however, indicates no spondylolisthesis on his pre-employment x-ray. The record does notclarify whether Dr. Broom is contradicting himself, or if he believes that the spondylolisthesis developed betweenchildhood and the second accident.4

competent substantial evidence. Haines City Cmty. Dev. v. Heggs, 658 So. 2d 530 (Fla. 1995).“It is neither the function nor the prerogative of a circuit judge to reweigh evidence and makefindings [of fact] when [undertaking] a review of a decision of an administrative forum.” Dep’tof Highway Safety & Motor Vehicles v. Allen, 539 So. 2d 20, 21 (Fla. 5 th DCA 1989).Petitioner presents two arguments in his petition for writ of certiorari. First he argues thatthe Board’s decision was not supported by competent substantial evidence, and that the decisionconstituted a departure from the essential requirements of law. Second the Petitioner argues thathe is entitled to disability pension pursuant to state statute and supporting case law. He arguesthat the Board’s decision denying his application therefore constituted a departure from theessential requirements of law. The responsibility of this Court is to determine whether sufficientevidence was presented to the Board for an informed decision to be made. Should this Court andthe Board disagree about the proper result in this case, the opinion of this Court cannot replacethe decision of the Board. Prior case law instructs this Court, “that it is neither the function northe prerogative of the circuit court to reweigh evidence and make findings [of fact] when[undertaking] a review of a decision of an administrative forum.” Dept. of Highway Safety &Motor Vehicles v. Allen, 539 So. 2d 20, 21 (Fla. 4th DCA 1989).With regards to the Petitioner’s first argument, the Board ultimately relied on Dr.Zahrawi’s opinion that the Petitioner was disabled due to aggravation of a preexisting condition.The deposition testimony and exhibits from Dr. Zahrawi were entered into evidence at theBoard’s hearing. After reviewing Dr. Zahrawi’s testimony in whole, along with the medicalexhibits and reports submitted with this petition for writ of certiorari, this Court finds that theBoard relied on competent substantial evidence in denying the Petitioner’s pension application.5

This decision follows directly from precedent set out by the Fourth District Court ofAppeal. This Court must follow the decision set out in Pompano Beach Police & Firemen’sPension Fund v. Franza, 405 So. 2d 446 (Fla. 4th DCA 1981). In Franza, two doctor’s testifiedthat a pension applicant (the police chief of Pompano Beach) was not able to perform the tasksrequired of his position, and a third doctor stated that the applicant could perform most tasks butexpressed concern that the applicant could not handle the responsibility of the position of policechief. Id. at 447. A fourth doctor disagreed completely with his colleagues and stated that theapplicant could perform the duties of the office involved. Id. That Board relied on the fourthdoctor’s testimony and denied the pension application. Id. After reversal by the circuit court, theFourth District Court of Appeal reversed the decision of the circuit court, stating: “[s]ince wefind the record contains substantial competent evidence supporting the agency decision, it waserror for the circuit court in its appellate capacity to overturn that decision.” Id.The instant case analogizes with the decision in Franza. The Board here used thetestimony of a single doctor, Dr. Zahrawi, as their basis for denying the Petitioner’s applicationfor disability pension. In Franza, the court stated: “his testimony, though in conflict with theother doctors in varying degrees, is neither inherently incredible nor improbable and thus it aloneconstitutes substantial competent evidence upon which the [Board] could rest their decision.” Id.Likewise this Court finds that Dr. Zahrawi’s testimony is neither inherently incredible norimprobable and therefore constitutes competent substantial evidence upon which the Boardrendered their decision.Petitioner next argues that he is entitled to line of duty disability pension pursuant toChapter 185, Florida Statutes and the holding from Crawley v. Orlando Firefighter’s PensionBoard of Trustees, 10 Fla. L. Weekly 951a (Fla. 9th Cir. Ct. June 23, 2003). He contends that6

the Board departed from the essential requirements of law by failing to follow these two sourcesof legal authority.Chapter 12, Article I, of the Orlando City Charter sets forth the pension fund andretirement plan (“Plan”) that is applicable to members of the OPD. It was adopted in 1943pursuant to a special act of the Florida Legislature. Ch. 22414, Laws of Fla. (1943). Section 9 ofthe Plan governs line of duty disability pension and provides that “[a]ny active member of thepolice department who shall become permanently and disabled, if the disability is directly causedby and attributable to the performance of duty as a member of the department, shall be entitled toa monthly pension . . . .” Orlando, Fla., Charter, ch.12, art. I, 9(1), (2007).In addition to the Plan provisions, special acts and ordinances creating and amending theOrlando Police Pension Plan, the Plan is governed by Chapter 185, Florida Statutes. In 1999, theFlorida Legislature amended Chapter 185 with Chapter 99-1, Laws of Florida (1999). Theseamendments clarified a question as to whether or not local law plans (like the Orlando PolicePension Plan) were required to comply with Chapter 185, and therefore provide minimumbenefits and meet minimum standards for their plans. Accordingly Chapter 185, Florida Statuteswas amended to read:This chapter hereby establishes, for all municipal pension plans now or hereinafterprovided for under this chapter, including chapter plans and local law plans,minimum benefits and minimum standards for the operation and funding of such plans,hereinafter referred to as municipal police officers’ retirement trust funds.§185.01(2), Fla. Stat. (2007).In addition to clarifying the issue of local law plan compliance with Chapter 185, theamendments provided that minimum benefits were also to be based on the availability of revenueto fund them.7

Citing Chapter 185, the Petitioner informs this Court that the Orlando Police PensionPlan (and the other local law plans in effect on October 1, 1998), “shall be required to complywith the minimum benefit provisions of this chapter only to the extent that additional premiumtax revenues become available to incrementally fund the cost of such compliance as provided ins. 185.16(2).” §185.35, Fla. Stat. (2007). Petitioner argues that from a plain reading of section185.35 minimum benefits can be only be incrementally increased, as funds become available, forregular retirement pensions. Section 185.35 specifically references section 185.16(2), and notthe disability pension section 185.18.To support this contention the Petitioner presents the Crawley case. The court inCrawley reviewed a similar petition for writ of certiorari, concerning a pension board’s denial ofa firefighter’s line of duty disability pension application. Crawley, 10 Fla. L. Weekly Supp. 951a(Fla. 9th Cir. Ct. June 23, 2003). Our sister panel in the same circuit reviewed Crawley’spetition under Florida Statues Chapter 175. While we recognize the Respondent’s argument thatthis is a different chapter from the instant case, this Court would be remiss to not consider thereasoned approach of the Crawley court.On appeal, the Crawley court acknowledged the pension board’s argument that section175.351, “allows for a local law plan to wait until additional premium tax revenues becomeavailable to seek amendments to the local law plan which would provide extra benefits tofirefighters.” Id. The court, however, made an important distinction in finding that theminimum benefits referred to in section 175.351(b) were those set out by section 175.162(2)(a),and not those contained within the disability pension section. Id.They found that since the board had not found Crawley to be permanently disabled basedon one of the four enumerated disability exceptions in 175.191(3), her pension application8

should not have been denied. Id. With that decision, the Crawley court granted the petition forwrit of certiorari and quashed the pension board’s final order denying her disability pensionapplication. Id.Just as Florida Statutes Chapter 175 was drafted with firefighter’s pensions in mind,Chapter 185 was drafted to provide for police officer’s pensions. Sections of both chaptersmirror each other, and the reasoning behind the Crawley decision, while not controlling, iscertainly highly persuasive to this Court. Section 185.35, as previously mentioned, provides thatcompliance with the minimum benefits requirement is necessary “only to the extent thatadditional premium tax revenues become available to incrementally fund the cost of suchcompliance as provided in s. 185.16(2).” §185.35, Fla. Stat. (2007).Exactly as it appears in Chapter 175, section 185.35 refers back to the section relating toregular retirement benefits (section 185.16(2)), and not the disability pension section (section185.18). Just as Chapter 175 enumerates four exceptions to disability retirement, Chapter 185presents five exceptions:(3) A police officer will not be entitled to receive any disability retirementincome if the disability is a result of:(a) Excessive and habitual use by the police officer of drugs,intoxicants, or narcotics;(b) Injury or disease sustained by the police officer while willfully andillegally participating in fights, riots, civil insurrections or whilecommitting a crime;(c) Injury or disease sustained by the police officer while serving in anyarmed forces;(d) Injury or disease sustained by the police officer after employment hasterminated;(e) Injury or disease sustained by the police officer while working foranyone other than the city and arising out of such employment.§185.18(3), Fla. Stat. (2007).9

Pre-existing conditions are not present in this list of exceptions, as the Petitioner correctlyargues. This Court believes that the Board failed to recognize that they could not denyPetitioner’s pension application based solely on the existence of a pre-existing condition.In conclusion, the City of Orlando Police Pension Board was within their purview inrelying solely on Dr. Zahrawi’s testimony regarding the Petitioner’s fitness for duty. However,in line with the decision in Crawley, the Board should not have denied the disability applicationas a pre-existing condition is not one of the five enumerated exceptions to receiving a disabilityretirement pension.Accordingly, it is hereby ORDERED and ADJUDGED that Petitioner David Mixon’sPetition for Writ of Certiorari is GRANTED and the Final Order of the City of Orlando PolicePension Board of Trustees is QUASHED.It is FURTHER ORDERED and ADJUDGED that Petitioner David Mixon’s Motionfor Attorneys’ Fees and Costs is GRANTED, the assessment of which is REMANDED to thelower court.It is also FURTHER ORDERED and ADJUDGED that Petitioner David Mixon shallhave costs taxed in his favor, if he files a proper motion pursuant to Florida Rules of AppellateProcedure 9.400(a) with the lower tribunal within thirty days of the issuance of the mandate inthis matter.DONE AND ORDERED in Chambers, at Orlando, Orange County, Florida on this_18__day of _____June___, 2009._____/S/_______________________JANET C. THORPECircuit Judge_________/S/____________________JOHN H. ADAMSCircuit Judge______/S/_______________________BELVIN PERRYCircuit Judge10

CERTIFICATE OF SERVICEI HEREBY CERTIFY that a true and correct copy of the foregoing Order has beenfurnished via U.S. mail to:Erin J. O’Leary, Esq., Brown, Garganese, Weiss & D’Agresta. P.A., 225 East Robinson Street,Suite 660, P.O. Box 2873, Orlando, FL 32802-2873Robert D. Klausner, Esq., Stuart A. Kaufman, Esq., and Adam P. Leviten, Esq., Klausner &Kaufman, P.A., 10059 N.W. 1st Court, Plantation, FL 33324Jay L. Smith, Police Pension Board of Trustees, 100 S. Hughey Avenue, Orlando, FL 32801Lee Ann Freeman, Orlando Police Department Advocate, 100 S. Hughey Avenue, Orlando, FL32801______/S/_______________________Judicial Assistant11