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Wood v. Public Employees Retirement
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA January 1994 Term __________ No. 21694 __________ NORMAN E. WOOD, M.D., Petitioner Below, Appellee, v. WEST VIRGINIA PUBLIC EMPLOYEES RETIREMENT SYSTEM, AN AGENCY OF THE STATE OF WEST VIRGINIA, Respondent Below, Appellant ________________________________________________ Appeal from the Circuit Court of Marshall County Honorable John Madden, Circuit Judge Civil Action No. 92-C-226 M REVERSED _________________________________________________ Submitted: May 3, 1994 Filed: July 8, 1994 G. Charles Hughes Moundsville, West Virginia Attorney for the Appellee Mary Blaine McLaughlin Assistant Attorney General Charleston, West Virginia Attorney for the Appellant JUSTICE WORKMAN delivered the Opinion of the Court. Syllabus 1. "'A writ of mandamus will not issue unless three elements coexist--(1) a clear legal right in the petitioner to the relief sought; (2) a legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy.' Syllabus Point 2, State ex rel. Kucera v. City of Wheeling, 153 W. Va. 538, 170 S.E.2d 367 (1969)." Syl. Pt. 3, Halstead v. Dials, 182 W. Va. 695, 391 S.E.2d 385 (1990). 2. The mere submission of an affidavit in response to a request from the West Virginia Public Employees Retirement Board seeking independent evidence of a public employee's employment, where credit for retirement purposes is in question, does not alone constitute credible evidence of employment sufficient to grant a public employee credit for the period in question. Workman, Justice:

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The West Virginia Public Employees Retirement System ("PERS") appeals from the September 3, 1992, order of the Circuit Court of Marshall County, directing it to grant the Appellee, Dr. Norman E. Wood, contributing service credit for the period of June 1, 1968, through December 31, 1972. After reviewing and considering the record submitted in conjunction with applicable law, we conclude that the circuit court's ruling was in error, and accordingly, we reverse. In June 1972, Dr. Wood submitted an application for employment as a full-time physician at the West Virginia Penitentiary in Moundsville ("penitentiary") to fill a vacancy created by the retirement of the previous physician,See footnote 1 with whom he had been associated. While the record is somewhat unclear as to the actual date on which Dr. Wood became employed as a full- time prison doctor, Gertrude Campbell, a penitentiary payroll division employee, stated by affidavit that he first became employed as a ninety-day exempt employee on July 1, 1972, and was placed on an original payroll register on December 1, 1972. Dr. Wood filed a grievance with the West Virginia Education and State Grievance Board ("Board") on October 17, 1989, based on his belief that the time credited him had been miscalculated to his detriment.See footnote 2 See W. Va. Code

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