David J. Grycowski v. Milwaukee Employees' Retirement System/Annuity and Pension Board

2021 WI App 7

COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2019AP2295

Complete Title of Case:

DAVID J. GRYCOWSKI,

PLAINTIFF-APPELLANT,

V.

MILWAUKEE EMPLOYEES' RETIREMENT SYSTEM/ANNUITY AND
PENSION

BOARD,

DEFENDANT-RESPONDENT.

Opinion Filed: December 22, 2020
Submitted on Briefs: September 9, 2020
Oral Argument:

JUDGES: Brash, P.J., Graham and White, JJ.
Concurred:
Dissented:

Appellant
ATTORNEYS: On behalf of the plaintiff-appellant, the cause was submitted on the
briefs of Jonathan Cermele of Cermele & Matthews, S.C.

Respondent
ATTORNEYS: On behalf of the defendant-respondent, the cause was submitted on the
brief of Patrick J. McClain, assistant city attorney for the City of
Milwaukee.
2021 WI App 7

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
December 22, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2019AP2295 Cir. Ct. No. 2018CV10455

STATE OF WISCONSIN IN COURT OF APPEALS

DAVID J. GRYCOWSKI,

PLAINTIFF-APPELLANT,

V.

MILWAUKEE EMPLOYEES’ RETIREMENT SYSTEM/ANNUITY AND PENSION
BOARD,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Milwaukee County:
ELLEN R. BROSTROM, Judge. Affirmed.

Before Brash, P.J., Graham and White, JJ.

¶1 BRASH, P.J. David J. Grycowski appeals an order of the circuit
court affirming the decision of the Milwaukee Employees’ Retirement
System/Annuity and Pension Board (the Board) denying his application for Duty
Disability Retirement (DDR) benefits. Grycowski asserts that under the ordinances
No. 2019AP2295

that regulate DDR benefits, there is a separate eligibility standard for police officers
and firefighters and that he met that standard. The Board determined that there is
only a single standard for all employees of the City of Milwaukee, and that
Grycowski did not meet it. We agree, and therefore affirm.

BACKGROUND

¶2 Grycowski was hired by the Milwaukee Police Department (MPD) as
a police officer in May 1992. He asserts that during his years on the force, there
were seven incidents that occurred while he was on duty which resulted in injuries
to his lower back. He contends that the cumulative effect of these injuries has
rendered him disabled.

¶3 The first such incident—an accident involving his squad car—
occurred in June 1993. The medical reports relating to the treatment Grycowski
received for his injuries from that accident indicated that he was treated for pain in
his neck and upper back. However, the doctor who performed an independent
medical examination (IME) of Grycowski in November 1993, Dr. Michael B.
Seidman, noted that Grycowski had reported previously being treated for lower back
pain three years prior to that accident—and prior to being hired by MPD. An MRI
taken in 1990 showed that he had a bulging disc, for which he had received a
cortisone injection. This had alleviated his lower back pain until the June 1993
accident. The physical therapist treating Grycowski after the accident also noted
that Grycowski had stated that he had previous problems with his lower back.

¶4 In the course of conducting the IME in November 1993, Dr. Seidman
ordered new X-rays of Grycowski’s lower back. Dr. Seidman concluded from those
X-rays that Grycowski had degenerative disc disease, which he opined was
“pre[]existing and unrelated to the squad car accident[.]”

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¶5 The second incident was another squad accident in October 1994.
Grycowski reported to the treating physician that he had suffered an “initial low
back injury” in that October 1994 accident. (Emphasis added.) An X-ray taken
after the accident showed a narrowing of the vertebrae in the same area as the
degenerative disc disease had been noted.

¶6 Grycowski received no further treatment for lower back pain until
February 1995. At that time, Grycowski reported that he had injured his back at
home when he was bending over to pick up something from the floor. He was
hospitalized for a week and treated for severe lower back pain and numbness and
tingling down his left leg. The X-rays taken at that time again showed degenerative
disc disease in his lower back. However, in the report by the physician treating him
at that time, Dr. Michael J. Anderson, it was noted that Grycowski had stated that
he “had not had significant difficulties with [h]is back before the June 1993
accident.” In other words, Dr. Anderson was not informed of the treatment
Grycowski had received for his lower back prior to joining the police force.

¶7 The third incident was yet another squad accident in November 1995.
Another IME was conducted in December 1995, this time by Dr. Mark R.
Aschliman. In Dr. Aschliman’s initial report, he stated that Grycowski had reported
“no significant history of low back pain” prior to the squad accident of October
1994. However, Dr. Aschliman clarified that report a few weeks later, stating that
the squad accident of October 1994 was an “aggravation[] beyond normal
progression of a preexisting condition.”

¶8 The next reported incident of back injury was in May 1997, when
Grycowski was attempting to apprehend a suspect who was resisting arrest. An
MRI done in August 1997 showed “progressive narrowing” of the intervertebral

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disc space, indicative of degenerative disc disease. The spine specialist treating
Grycowski at that time, Dr. Stephen E. Robbins, recommended lumbar fusion. A
claims adjustor for the City clarified with Dr. Robbins that the lumbar strain
Grycowski had suffered in May 1997 had resolved itself with no residual issues, and
that the recommendation for back surgery was due to Grycowski’s degenerative disc
disease, which was accelerated by the October 1994 squad accident.

¶9 Grycowski underwent the lumbar fusion surgery in September 1997.
Afterwards, he returned to work with permanent lifting restrictions, as well as time
limits for sitting and standing.

¶10 Dr. Robbins continued to evaluate Grycowski on an annual basis after
his surgery. Starting in April 1999, Grycowski reported that he was having
“increasing episodes of back and leg discomfort” and was regularly missing work
as a result. In July 1999, Dr. Robbins stated that Grycowski’s back pain, which was
“related to his employment as a police officer,” had continued to worsen even
though Grycowski had been “involved extensively in physical therapy and an
exercise program,” and recommended that Grycowski “be retired on duty disability
benefits.”

¶11 Grycowski subsequently applied for duty disability benefits; he was
thirty-five years old. A duty disability assessment was performed by Dr. Andrew J.
Seter in July 1999 for purposes of addressing his application. Grycowski told
Dr. Seter that he could not return to full duty as a police officer because he was not
able to “physically or mentally perform the job.” In fact, Grycowski claimed that
he was “permanently disabled” and would “never work again” due to his back
problems—that his inability to sit, stand, or walk for any length of time meant that
he could not perform any job, for the City or any other employer, “even for a day.”

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¶12 During the assessment, Grycowski reported that he was not receiving
any treatment for his back pain at that time. Additionally, Grycowski stated that
while he did stretches “intermittently,” he had no “regular involvement in exercises
or aerobic conditioning.” Dr. Seter observed that Grycowski was “overweight and
in poor general physical condition.” Dr. Seter also noted that Grycowski “s[a]t
throughout the length of the interview without apparent difficulty.”

¶13 In his report regarding the IME, Dr. Seter stated that while Grycowski
had reported “a series of work related injuries,” he “should be viewed to have had a
degenerative disc condition of the lumbar spine which predated his work related
accidents.” Moreover, Dr. Seter opined that Grycowski’s “obesity and physical
deconditioning have likely served as much greater factors in the development of his
ongoing low back symptoms.” In short, Dr. Seter concluded that duty disability
benefits were not appropriate, and that Grycowski could return to work under the
modified duties implemented after his lumbar fusion.

¶14 Dr. Aschliman, who had conducted the IME in December 1995, also
conducted a duty disability evaluation on Grycowski in September 1999.
Dr. Aschliman referenced the previous IME he had conducted, noting that
Grycowski had initially denied having any back problems prior to the October 1994
squad accident, but that a review of additional medical records provided a “slightly
different history.” Dr. Aschliman noted that this included the June 1993 squad
accident, as well as a history of “pre[]existing moderate degenerative disc disease”
that was “unrelated in any way” to the June 1993 squad accident.

¶15 Dr. Aschliman further stated that Grycowski had “some disc disease”
that “may account” for his complaints. Additionally, Dr. Aschliman observed that
Grycowski’s condition was “compounded by his morbid obesity and significant

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physical deconditioning.” Dr. Aschliman ultimately concluded that Grycowski was
“not permanently and totally disabled from performing work in a limited capacity”
and that he “d[id] not in my opinion qualify for retirement on duty disability.”

¶16 Grycowski had back surgery again in November 1999 but continued
to have pain in his lower back and left leg.

¶17 In August 2003, Grycowski reported straining his lower back after
attempting to help a coworker who had fallen on the floor. Two months later, in
October 2003, his back was again injured while he was attempting to stop a theft
and disorderly conduct incident. Grycowski had another surgery on his lower back
in November 2003.

¶18 The final incident reported by Grycowski occurred in January 2005.
Grycowski stated that he injured his back while picking up “departmental
equipment.”

¶19 In December 2006, Grycowski applied for DDR benefits. Although
Dr. Robbins expressed the opinion that Grycowski qualified for the benefits, two
other doctors who examined him in February 2007 and May 2007 concluded that
Grycowski was able to continue employment for MPD with modified, limited
duties. However, in August 2009, Grycowski was examined by Dr. Theodore R.
Bonner, who determined that Grycowski’s psychiatric problems—he had been
diagnosed with depression, posttraumatic stress disorder, and anxiety—prevented
him from performing even his limited duties. Grycowski was thus granted DDR
benefits for psychiatric stress.

¶20 Grycowski had a fourth back surgery in November 2011. All four of
Grycowski’s back surgeries, as well as all of his back-related medical treatment and

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other additional benefits, were paid for by the City’s Worker’s Compensation
Division.

¶21 Grycowski’s DDR benefits were rescinded by the Board in
April 2015, after he was found to be fit to return to work at the police department.
Grycowski was “placed in a limited duty assignment, consistent with his medical
capabilities and permanent physical restrictions (stemming from his on[]duty
injuries).” However, Grycowski was required to obtain recertification by the
Wisconsin Law Enforcement Standards Board, as his certification had lapsed while
he was receiving DDR benefits. Furthermore, because his certification had lapsed
for more than three years, Grycowski was required to complete the entire police
academy course in order to obtain recertification. Due to his physical restrictions
relating to his back problems, he was unable to complete the course.

¶22 Because he could not get recertified, Grycowski was given the option
of accepting a civilian position with the City. He accepted the position, but
reapplied for DDR benefits in August 2016.

¶23 Dr. Stephen Barron conducted an IME on Grycowski in June 2017.
The specific question posed to Dr. Barron with regard to Grycowski’s application
for DDR benefits was whether his condition at that time was directly attributable to
the squad accident of October 1994. Dr. Barron opined that it was not; rather, he
stated that, after examining Grycowski and reviewing his extensive medical history,
the injury he sustained in that accident was “a temporary aggravation of his
preexisting condition,” and that “it is not probable the alleged work injury caused
[Grycowski’s] disability and medical condition by precipitation, aggravation, or
acceleration” of that preexisting condition.

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¶24 Grycowski’s DDR benefits application was denied by the Board in
September 2017. An appeal hearing was conducted in April 2018 by a hearing
examiner, the Honorable Gary A. Gerlach. After reviewing the evidence and
testimony presented, Judge Gerlach determined that there was credible evidence that
there was “a degenerative disease component that existed prior to and after
[Grycowski’s] initial squad accident” that has been “at least a cause if not the initial
sole cause” of Grycowski’s lower back problems “which progressively worsened
due to more injuries and surgeries.” Although Grycowski denied ever telling
Dr. Seidman that he had previously received medical treatment for lower back pain,
Judge Gerlach found it “inconceivable” that Dr. Seidman would “make up” specific
details for his report, such as Grycowski having had an MRI in 1990 showing a
bulging disc and receiving a cortisone shot.

¶25 Judge Gerlach noted that after both the 1993 and 1994 squad
accidents, Grycowski was able to return to full duty within a few days after each
accident. Furthermore, Grycowski did not report any severe, acute lower back pain
until February 1995, after bending over at home. In other words, Judge Gerlach
found that there was no evidence of an “acute episode of severe low back pain …
close in time to the 93 and/or 94 squad accidents.”

¶26 Moreover, with regard to Dr. Robbins’ support of Grycowski’s
application for DDR benefits, Judge Gerlach observed that Dr. Robbins’ opinion
that Grycowski’s herniated discs “appear to be related to his employment” did not
include “any opinion … as to the initial direct cause of injury[.]” In fact, Judge
Gerlach noted that although there were some conflicting opinions in the doctors’
reports regarding the cause of Grycowski’s lower back problems, it should be
recognized that “this case has a long history of many years,” that Grycowski’s
complete medical records were not always provided or available during those

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exams, and that Grycowski had provided “less than total disclosure … of his prior
low back condition” to the doctors.

¶27 Additionally, Judge Gerlach rejected Grycowski’s contention that he
was entitled to DDR benefits based on the cumulative effect of several on-duty
injuries. Judge Gerlach noted that eligibility for DDR benefits requires that the
“incapacity for duty must be as the natural and proximate result of an injury
occurring at some definite time and place while in the actual performance of duty.”
(Emphasis omitted.) Judge Gerlach concluded, based on previous interpretations of
the ordinance regulating DDR benefits—which included unpublished decisions of
this court—that “[e]ven assuming Mr. Grycowski’s degenerative disc disease
condition is not the sole cause of his disability it certainly is a contributing cause
which would preclude qualification for duty disability benefits” because “[h]is
injury must be the sole cause of his disability in order to recover.”

¶28 Ultimately, Judge Gerlach upheld the Board’s decision to deny
Grycowski’s application for DDR benefits. Grycowski appealed that decision to
the circuit court, which also upheld the Board’s decision. This appeal follows.

DISCUSSION

¶29 Grycowski appeals the Board’s decision pursuant to WIS. STAT.
§ 68.13 (2017-18),1 which permits judicial review by certiorari of the final decision

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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of a municipal board. See also WIS. STAT. §§ 68.01, 68.02(1).2 On certiorari
review, this court is “limited to determining whether: (1) the governmental body’s
decision was within its jurisdiction, (2) the body acted according to law, (3) the
decision was arbitrary or oppressive, and (4) the evidence of record substantiates its
decision.” State ex rel. Bruskewitz v. City of Madison, 2001 WI App 233, ¶11, 248
Wis. 2d 297, 635 N.W.2d 797. We review de novo the municipality’s decision, not
the decision of the circuit court. Id.

¶30 It is well settled law that on certiorari review “there is a presumption
of correctness and validity to a municipality’s decision.” Ottman v. Town of
Primrose, 2011 WI 18, ¶48, 332 Wis. 2d 3, 796 N.W.2d 411. In applying this
presumption to a municipality’s interpretation of its own ordinance, “we will defer
to the municipality’s interpretation if it is reasonable.” Id., ¶60. A municipality’s
interpretation is not reasonable, however, “if it is contrary to law, if it is clearly
contrary to the intent, history, or purpose of the ordinance, or if it is without a
rational basis,” or if the interpretation “directly contravenes the words of the
ordinance[.]” Id., ¶62. The petitioner bears the burden of overcoming this
“presumption of correctness.” Id., ¶50.

¶31 On appeal, Grycowski argues that the Board acted on an incorrect
theory of law in denying his DDR benefits application, citing several particular
issues. The crux of Grycowski’s argument, however, is that there is a separate
standard under the Milwaukee City Charter (MCC) for determining eligibility for

2
We note the circuit court’s discussion of the standard of review for administrative agency
decisions established in Tetra Tech EC, Inc. v. DOR, 2018 WI 75, 382 Wis. 2d 496, 914 N.W.2d
21. We agree with the circuit court’s conclusion that Tetra Tech’s application does not appear to
have been extended to the judicial review of municipal decisions, see id., ¶11 n.8., and further note
that the cases cited herein with regard to our standard of review for municipal decisions were not
abrogated by Tetra Tech.

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DDR benefits for police officers and firefighters, and that this separate standard
provides for eligibility based on the cumulative effects of injuries, as opposed to
eligibility based on a specific injury that occurred at a definitive time during an act
of duty.

¶32 This argument requires that we interpret the relevant portions of the
MCC. Like statutory interpretation, the interpretation and application of a
municipal ordinance is a question of law that we review de novo. Milwaukee Dist.
Council 48 v. Milwaukee Cnty., 2019 WI 24, ¶11, 385 Wis. 2d 748, 924 N.W.2d
153. In conducting an interpretation of municipal ordinances, this court “appl[ies]
the same principles used in statutory interpretation.” Id. To that end, we will
interpret the relevant sections of the MCC “in the context in which [they are] used;
not in isolation but as part of a whole; in relation to the language of surrounding or
closely-related [sections]; and reasonably, to avoid absurd or unreasonable results.”
State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶46, 271 Wis. 2d 633,
681 N.W.2d 110.

¶33 The section of the MCC which explains DDR benefits is set forth at
MCC § 36-05-3. The first subsection states:

DUTY DISABILITY RETIREMENT
ALLOWANCE. a. While in Active Service. Any member
in active service who shall become permanently and totally
incapacitated for duty as the natural and proximate result of
an injury occurring at some definite time and place while in
the actual performance of duty shall, upon filing a request
for retirement with the [B]oard … be entitled to a duty
disability retirement allowance … provided the medical
council or medical panel after a medical examination of such
member shall certify that such member is mentally or
physically incapacitated for further duty as a result of such
service injury and such incapacity is likely to be permanent
and such member should be retired.

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MCC § 36-05-3-a (emphasis added).

¶34 Grycowski, however, focuses on language in a subsequent subsection
which discusses DDR benefits specifically with regard to police officers and
firefighters:

… any fireman or policeman who shall become
disabled as the direct result of injury incurred in the
performance of one or more specific acts of duty shall have
a right to receive duty disability benefit during the period of
such disability of an amount equal to 75% of the current
annual salary for such position which he held at the time of
such injury.

MCC § 36-05-3-c-1-a (emphasis added). It is this language that Grycowski
contends creates a separate standard for DDR benefits for police officers.

¶35 The subsection where this language is found is entitled “Firemen and
Policemen Duty Disability.” Immediately following that title is a directive that
“[f]iremen and policemen who are eligible for duty disability retirement allowance
shall file a request therefor with the [B]oard on a form provided by it for that
purpose; such disability shall be determined as follows[.]” MCC § 36-05-3-c-1
(emphasis added). The specific language on which Grycowski relies is located in
the following subsection, which describes the application and review process for
DDR benefits, depending on date of service and date of application. That language
is in the midst of an explanation regarding the formula for determining the amount
of benefits payable to police officers or firefighters deemed to be eligible for DDR
benefits: 75% of their current annual salary. See id. This formula is different from
a formula set out in a previous subsection that is applied to other City employees
eligible for DDR benefits: those employees would receive 75% of their final
average salary. See § 36-05-3-b-1.

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¶36 In interpreting a statute or ordinance, “[c]ontext is important to
meaning.” Kalal, 271 Wis. 2d 633, ¶46. The structure of MCC § 36-05-3, when
looked at as a whole, begins by stating one general eligibility standard for all City
employees, followed by subsections explaining the administrative procedures
related to an application for benefits. In that context, the language relied on by
Grycowski is merely distinguishing a formula for determining the amount of
benefits payable to police officers and firefighters that is different from other City
employees, not creating a separate standard for determining eligibility.

¶37 Moreover, the City points out that there is limiting language in MCC
§ 36-05-3-c-1—the subsection immediately preceding the subsection where the
language at issue is located. Specifically, that limiting language states that the
subsections that follow it are for police officers and firefighters who are eligible for
duty disability retirement allowance. Id. The City contends that this limiting
language is a reference to the initial requirements of § 36-05-3-a—that the disabling
injury had to have occurred at some definite time and place—and requires that
standard to have been met. In other words, if police officers and firefighters have
met that initial standard, the formula in that following subsection will be applied to
determine the amount of their DDR benefits.

¶38 We agree. In reading the entire section on DDR benefits as a whole
rather than considering the subsections in isolation—as required by our canons of
construction, see Kalal, 271 Wis. 2d 633, ¶46—it is reasonable to interpret it as
having only one standard for all City employees for determining eligibility for DDR
benefits, and not a separate standard for police officers and firefighters.

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¶39 That is the interpretation applied by Judge Gerlach.3 Therefore, based
on that interpretation, Grycowski would have to establish that his disability was
caused by an injury to his back that occurred at a “definite time and place” in order
to be eligible for DDR benefits. See MCC § 36-05-3-a.

¶40 Thus, we turn to the evidence presented in this case. In our review of
the municipality’s decision, we consider only “the record compiled by the
municipality and do[] not take any additional evidence on the merits of the
decision.” Ottman, 332 Wis. 2d 3, ¶35. Furthermore, we may not substitute our
“view of the evidence for that of the municipality.” Id., ¶53. Moreover, we will
sustain the findings of fact of the municipality if “any reasonable view of the
evidence supports them.” Id.

¶41 Judge Gerlach found that the evidence did not establish that any of the
incidents cited by Grycowski directly caused his lower back problems. Rather,
Judge Gerlach found that there was credible evidence that Grycowski had a
preexisting degenerative disc disease in his lower back when he joined the police
force.

¶42 There is a provision set forth at MCC § 36-05-2-a-3 that bars benefits
in cases where there was a pre-existing condition:

Any pre[]existing physical condition as determined
from a medical examination conducted for the [C]ity in
connection with the employment of a member shall be
deemed a bar to coverage of any disability benefits under this
act as a direct or indirect result of such disability.

3
Grycowski argues that Judge Gerlach erred in relying on unpublished decisions of this
court for his determination of this issue, pursuant to WIS. STAT. RULE 809.23(3). However, as the
City points out, this rule applies to the courts, and is not applicable to municipal proceedings.

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¶43 Grycowski asserts that this provision is not applicable to DDR
benefits because it is located in a subsection before the DDR benefits subsection.
However, “act” is defined in MCC § 36-02-2 as the entirety of the “employe[e]s’
retirement act,” which is codified as Chapter 36 of the MCC. The bar on eligibility
when there is a preexisting condition is clearly stated to be applicable to “any
disability benefits under this act[.]” See MCC § 36-05-2-a-3 (emphasis added). As
the provisions for DDR benefits are also located in Chapter 36, the bar on
preexisting conditions is applicable to Grycowski’s claim for DDR benefits. See
Kalal, 271 Wis. 2d 633, ¶49 (the “purpose or scope” of an ordinance “may be readily
apparent from its plain language”).

¶44 Grycowski then argues that the reports of the doctors who performed
the IMEs did not specifically make a determination about his preexisting back
condition. We disagree. Judge Gerlach found that there was credible evidence that
Grycowski had self-reported his previous back problems during his first IME.
Further X-rays and MRIs taken during subsequent examinations also indicated that
Grycowski had degenerative disc disease. Although some of the medical opinions
were conflicting in their conclusions—in part because of Grycowski’s “less than
total disclosure”—Judge Gerlach observed that when the doctors were made aware
of Grycowski’s preexisting condition their opinions generally referenced that
condition as an underlying cause of Grycowski’s back problems.

¶45 Thus, Judge Gerlach concluded that Grycowski’s preexisting
degenerative disc disease was “at least a contributing cause of his low back
disability,” particularly because Grycowski had been able to return to full duty after
the first two squad accidents. As a result, Judge Gerlach found that Grycowski had
not suffered a specific injury that was “in [and] of itself medically significant,” but
rather that he had suffered “a series of minor on-duty injuries which had a

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cumulative effect of aggravating and accelerating his underlying condition.”
Therefore, although finding that Grycowski is disabled, Judge Gerlach concluded
that Grycowski did not meet the standard for eligibility for DDR benefits because
none of the injuries Grycowski sustained in the line of duty was the sole cause of
his disability. This application of the evidence to the standard set forth in MCC
§ 36-05-3 is reasonable. See Ottman, 332 Wis. 2d 3, ¶60.

¶46 Finally, Grycowski argues that the Board acted arbitrarily in failing to
consider the impact that his failure to obtain recertification had on his claim for
disability. However, the ability to obtain recertification is not a factor in
determining eligibility for DDR benefits. Rather, Grycowski’s inability to obtain
recertification was a direct effect of his back problems, which Judge Gerlach
determined were caused at least in part by a preexisting condition, and were not
directly caused by a duty-related injury. Thus, this argument fails.

¶47 In sum, Grycowski has not met his burden of overcoming the
presumption of correctness of the Board’s interpretation and application of the MCC
sections relating to DDR benefits. See id., ¶50. Accordingly, we affirm the order
of the circuit court affirming the decision of the Board to deny Grycowski’s
application for DDR benefits.

By the Court.—Order affirmed.

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