Opinion
No. 79-45.
Submitted May 22, 1980.
Decided May 30, 1980.
Ken M. Gozur, Washington, D.C. and Andrew C. Bisulca, were on brief, for petitioner.
Judith W. Rogers, Corp. Counsel, Richard W. Barton, Deputy Corp. Counsel and Margaret L. Hines, Asst. Corp. Counsel, Washington, D.C., were on brief, for respondent.
Before NEWMAN, Chief Judge, PRYOR, Associate Judge, and YEAGLEY, Associate Judge, Retired.
Petitioner, Paul Echard, seeks review of a decision of the Police and Firemen's Retirement and Relief Board denying him disability retirement. The Retirement Board based its denial of disability retirement on its conclusion that petitioner's disability "would not prevent the officer from performing useful and efficient service in the same grade or class of position last occupied."
Review jurisdiction derives from D.C. Code 1978 Supp., § 1-1510 and D.C. Code 1973, § 11-722.
Petitioner contends that there was not substantial evidence in the record to support the Board's conclusion and that the Board employed an improper standard for evaluating disability. Because there is substantial evidence of record to support the Board's findings, we affirm.
The evidence in the record before the Board shows that petitioner, a member of the Metropolitan Police Department since 1968, was injured while on duty in March 1977, when a resisting suspect attacked him and his police dog with an iron bar. Petitioner's injuries included facial contusions and lacerations as well as a comminuted fracture of the right elbow involving the lateral humeral condyle. In an emergency room, his arm was placed in a cast. The following morning petitioner reported to the Police and Fire Clinic where he was referred to Dr. Leonard T. Peterson, a private practitioner of orthopedic surgery, for continuing care. Dr. Peterson treated petitioner for a period of about two months with several cast applications. At the end of this period, Dr. Peterson noted excellent progress despite continuing pain and significant restriction of motion in the elbow. After little improvement petitioner sought a second opinion from Dr. Arthur B. Wein on August 10, 1977, five months from the date of injury. Dr. Wein reported that there was a decrease in grip, strength and continued restricted motion in the elbow. X-rays indicated traumatic arthritic degenerative changes of the elbow joint. Based on the strength of these findings, Dr. Wein reported that petitioner has a "permanent residual disability of his right elbow which affects the use of his entire right upper extremity. I believe a 50 percent permanent residual disability rating of his right elbow is justified."
The fracture was located in and around the elbow joint.
There were also areas of ossifications of both medial and lateral epicondylar areas.
In response to this report Dr. Albert Rolle, a member of the Board of Surgeons, recommended to the Board that petitioner "is permanently disabled in the performance of duty." Petitioner than applied for retirement on the ground that his injury in the performance of duty "disables him for the performance of duty." D.C. Code 1973, § 4-527(1).
I
At the hearing before the Retirement Board in May 1978, the fact that petitioner had been injured in the line of duty was not in dispute. The focus of the inquiry was the extent of the injury and whether such injury rendered him incapable of performing the duties of the position to which he was last assigned.
The Board incorporated his medical records and the report of the Board of Surgeons into its record and heard testimony from petitioner and Dr. Albert Rolle. Petitioner testified that his last assignment was that of a canine patrol officer, which required him to assist in apprehending felons and finding lost persons and articles. The performance of his canine duties was in addition to his normal police patrol functions, which included routine traffic stops, checking abandoned buildings, and assisting scout cars in their patrol activities.
The only testifying physician was Surgeon Board member, Dr. Rolle, who stated that he interpreted Dr. Wein's report to imply that petitioner "would probably be able to use the arm half as good as he would have had this not occurred." Petitioner described his activities during the year since his injury. He has attended classes at the University of Maryland and performed such household chores as cleaning, making beds and washing dishes. In addition, he helps in the care of his children on their weekend visits. He described his restricted activity as "anything that requires a lot of weight." He has experienced "extreme" pain while raking leaves, which forced him to abandon the task. Petitioner indicated that the pain in his arm is not constant and is "more of an ache than a hurt." The pain responded to two Tylenols, the only medication used by petitioner.
Petitioner testified at the hearing that he could not fully extend his right arm nor rotate it. He demonstrated his ability to raise and lower it. Petitioner expressed great concern that he cannot reasonably perform the duties of his last assignment. He is especially concerned about his physical inability to subdue or arrest an unruly citizen or a suspected criminal. As a police officer he is required, even on off-duty hours, to carry a weapon and be prepared to render assistance should he observe a crime in progress. Although when asked whether he was "adequately able to fire [his] service revolver," based on the disability to his right arm, petitioner answered, "Yes."
Petitioner had not returned to any type of police duty since his injury. When asked if he would be willing to try light duty, his response was "no." There was also the following exchange between petitioner and Board Member Inspector Winkleman:
Q Do you feel, as you testified, that you are unable to perform full police duties as you performed police duties prior to this injury?
A Yes, I do.
Q But your response to performing other police functions, as opposed to dog handling —
A Such as what?
Q Such as dispatcher, central records, many other jobs within the Police Department other than dog handler.
A Inspector, my chosen field of endeavor is the Canine Corps. I am an active canine man, and I will remain an active canine man, in my mind, as long as I can perform my police duties. I enjoyed my police work as a canine man, and to me that is the only job that I want to do as a policeman.
Q When you swore to uphold the laws of this city and took a job as a police officer, were you in any manner assured you would be a canine man?
A No. It was my objective at the time.
Q Were you assured, in any manner assured, you would not be a dispatcher?
A No.
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Q I am asking you, was there ever anything assured you when you came on —
A No, there was not.
Q — that you would not be assigned any function within the Police Department?
A The same as any other sworn man, there was none whatsoever.
Q And as the testimony I have heard here this morning would give me no indication that you could not be a dispatcher at the 4:00 to 12:00 shift tonight.
A I would have to say there would be none whatsoever. But, as I stated before, it is not my chosen field of endeavor.
Q Is there anything in the testimony that I have missed that would indicate that you could not perform in Central Records tonight?
A No, sir.
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II
In circumstances analogous to the instant case, this court in Torvik v. Police and Firemen's Retirement and Relief Board, D.C.App., 406 A.2d 1264, 1266 (1979), reiterated the Board's duty articulated earlier in Jones v. Police and Firemen's Retirement and Relief Board, D.C.App., 375 A.2d 1, 5 (1977):
In Torvik, supra, we reversed the Board's decision denying petitioner disability since its finding was devoid of evidence in the record that there was any position in the Police Department, that the petitioner was fully capable of performing.
In Jones, supra, we affirmed the Board's denial of disability retirement finding substantial evidence of record that petitioner's impairment did not prevent service in the grade or class of position last occupied.
The statute . . . does not require the Board to determine whether she is physically fit to perform every conceivable kind of police assignment, but merely whether she is still capable of handling the duties required by the kind of position to which she was regularly assigned prior to her injury.
Thus, disability from performing the patrol duties associated with petitioner's latest position with the Department does not establish disability conclusively for entitlement to retirement benefits. Under D.C. Code 1973, § 4-521(2), petitioner must be "disabled for useful and efficient service" for the Department in a position of the same "grade or class of position" as that he last occupied.
See Seabolt v. Police and Firemen's Retirement and Relief Board, D.C.App., 413 A.2d 908 (1980), for a detailed analysis of § 4-521(2) and the relevant case law.
The meaning of the statutory language, same "grade or class of position" as that last occupied has been considered by this court in Coakley v. Police and Firemen's Retirement and Relief Board, D.C.App., 370 A.2d 1345, 1349-50 (1977). In Coakley, supra, we concluded that a petitioner's ability to perform a "non-fire fighting" position in the department precluded him from disability retirement, upholding the Retirement Board's interpretation of "grade or class of position" in § 4-521(2) as a category defined by rank or salary or both. Id. at 1348.
We must determine whether the Board's conclusion that petitioner could perform "useful and efficient service" for the department, if not in the particular position of canine patrol officer, as a dispatcher or in the records department, is supported by substantial evidence in the record. As set forth supra, petitioner described in detail his physical activities, which included attending college classes as well as performing household chores. He demonstrated the existing mobility of his injured arm and the limited range of its extension. Petitioner indicated that he was able to fire his service revolver adequately with the injured arm. He expressed a strong dislike for administrative or clerical work and indicated to the Board his refusal to accept such a position if offered to him.
The Board indicated that it considered the medical evidence in the record, the testimony, the viewing of petitioner's arm and the demonstration of its use, in support of its conclusion that he could continue to perform "useful and efficient" police duties in the same "class or grade of position." The Board noted that there is no authority which precludes the officer from being transferred or reassigned to other police duties in the Department.
We cannot dispute the Board's findings that petitioner's injury did not preclude his continued performance of "useful and efficient" service, given the record before it. There was ample evidence to support its findings. In our review of retirement benefit cases, the sufficiency of the evidence to support the Board's findings is not to be measured under a "clear preponderance of the evidence" standard. Arellano v. District of Columbia Police and Firemen's Retirement and Relief Board, D.C.App., 384 A.2d 29 (1978). The Board's conclusion flows logically from these findings and, upon review, this court may not substitute its judgment for that of the Board. Coakley, supra at 1347. We conclude that the Board's denial of petitioner's disability retirement is well supported by the evidence which was before it. Finding no error, the order of the Board is
Affirmed.