Dolan v. Fire and Police Pension Ass'n
2017 COA 55
| Colo. Ct. App. | 2017Background
- William P. Dolan, a career firefighter, sustained an on-the-job elbow injury in 2007 and was later awarded permanent occupational disability benefits by the Fire and Police Pension Association (FPPA).
- After termination from North Metro Fire Rescue, Dolan accepted a paid, full-time fire chief position with Elk Creek Fire Protection District in May 2010; his contract entitled him to perform statutory fire chief duties and to assume command at incidents "as needed."
- The FPPA initially awarded benefits conditioned on Elk Creek certifying the position was strictly administrative; Elk Creek provided a contract using the title "Fire Chief" and describing operational duties.
- NFIRS reports and witness testimony showed Dolan responded to and participated in numerous incidents in 2010, sometimes acting in a command role.
- The FPPA suspended and then discontinued Dolan’s disability benefits under § 31-31-806 (reemployment in a full‑time position whose duties are "directly involved with the provision of . . . fire protection"). The FPPA Board upheld the suspension; the district court affirmed, and Dolan appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether employment as Elk Creek fire chief was "directly involved with the provision of . . . fire protection" under § 31-31-806 | Dolan: "Directly involved" requires physical, hands‑on firefighting or restoration to active service; his chief role was administrative and did not disqualify him | FPPA: The board may determine whether duties are directly involved; a chief who directs emergency operations and can assume command is directly involved | Held: The board reasonably determined Dolan’s duties were directly involved with fire protection; benefits were properly discontinued |
| Whether the Board’s decision was supported by competent evidence | Dolan: NFIRS reports and testimony were unreliable and the FPPA lacked first‑hand witnesses of his on‑scene roles | FPPA: Contract, NFIRS reports, and eyewitness testimony provided sufficient probative evidence for the board to weigh | Held: Competent evidence existed (contract, witness testimony, NFIRS reports); credibility and weight were for the board |
| Whether Dolan could timely add a § 1983 procedural‑due‑process claim by amending his complaint | Dolan: Amendment was timely; no substantial discovery or trial date; due process violation arose from hearing procedures | FPPA: The claim was untimely; Dolan should have raised it earlier under C.R.C.P. 106(b) | Held: District court did not abuse discretion denying leave to amend as untimely; claim was an as‑applied challenge subject to 106(b) time limits |
Key Cases Cited
- Kilbourn v. Fire & Police Pension Ass'n, 971 P.2d 284 (Colo. App. 1998) (addressing retroactivity of § 31‑31‑806 and application to reemployment involving police protection)
- Agee v. Trustees of the Pension Board of the Cunningham Fire Protection Dist., 518 P.2d 310 (Colo. App. 1974) (interpreting "active service" in prior Act; attendance at fires/training counted as active service)
- Ross v. Fire & Police Pension Ass'n, 713 P.2d 1304 (Colo. 1986) (administrative review: no competent evidence means a decision is arbitrary and capricious)
- Polk v. Denver Dist. Court, 849 P.2d 23 (Colo. 1993) (denial of leave to amend is discretionary; review for abuse of discretion)