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Hay v. Schwartz12/29/1998
tirement Sys., 864 S.W.2d 372, 373 (Mo. App. 1993). Our standard of review is set out in section 536.140, which provides, in pertinent part, as follows:
"2. The inquiry may extend to a determination of whether the action of the agency"
"(1) Is in violation of constitutional provisions;"
"(2) Is in excess of the statutory authority or jurisdiction of the agency;"
"(3) Is unsupported by competent and substantial evidence upon the whole record;"
"(4) Is, for any other reason, unauthorized by law;"
"(5) Is made upon unlawful procedure or without a fair trial;"
"(6) Is arbitrary, capricious or unreasonable;"
"(7) Involves an abuse of discretion."
"3. Whenever the action of the agency being reviewed does not involve the exercise by the agency of administrative discretion in the light of the facts, but involves only the application by the agency of the law to the facts, the court may weigh the evidence for itself and determine the facts accordingly. The law applied by the agency as aforesaid may include the agency's own rules. In making such determination the court shall give due weight to the opportunity of the agency to observe the witnesses, and to the expertness and experience of the particular agency."
In our review, we must not substitute our judgment for that of the Board. Paulson v. Missouri Dep't of Revenue, 961 S.W.2d 63, 65 (Mo. App. 1998). Rather,
"we must ascertain whether the board could reasonably have made its findings and reached its decision on the basis of all the evidence before it. If its findings are clearly contrary to the overwhelming weight of the evidence, we must reverse and order further action as the case may require. Knapp v. Missouri Local Gov't Employees Retirement Sys., 738 S.W.2d 903, 912 (Mo. App. 1987).
" uestions arising as to uncontroverted or conceded facts are questions of law finally determinable by the courts." Id. at 912.
I.
Although Hay alleges what he denominates as two claims of error in two points relied on, it is evident that the claim alleged in his second point is simply an extension of the claim alleged in his first point in that he is claiming in both that he presented undisputed, credible, competent, and substantial evidence to the Board that established that his permanent mental disability arose out of and in the course of the actual performance of his duty as fire marshall and, as such, he made a prima facie case for benefits. As part of this claim, he contends in his denominated Point II that, because the Board did not make a specific finding that the undisputed and unimpeached testimony and reports of his expert witnesses were incredible and unworthy of belief, it was not free to disregard it and was required to accept such testimony as true, the upshot being that he presented competent and substantial evidence supporting his application for benefits. Because we believe Hay's two points are essentially only one, we will address and discuss them together.
Section 70.680 governs claims by employees of covered political subdivisions of the state for benefits, such as Hay's claim here. It provides, in pertinent part, as follows:
"1. Any member in service with five or more years of credited service who has not attained the age and service requirements of section 70.645 and who becomes totally and permanently physically or mentally incapacitated for his duty as an employee, as the result of a personal injury or disease, may be retired by the board upon written application filed with the board by or on behalf of the member; provided, that after a medica
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