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08/09/90 RUSSELL L. HOLDERBAUM v. DISTRICT COLUMBIA

August 9, 1990

RUSSELL L. HOLDERBAUM, PETITIONER
v.
DISTRICT OF COLUMBIA POLICE AND FIREFIGHTERS RETIREMENT AND RELIEF BOARD, RESPONDENT



Petition for Review of an Order of the District of Columbia Police and Firefighters Retirement and Relief Board

Rogers, Chief Judge, and Terry and Farrell, Associate Judges.

The opinion of the court was delivered by: Farrell

On this petition for review of an order denying petitioner disability retirement from the Metropolitan Police Department (MPD), we conclude that a remand to the administrative board is necessary for findings concerning the statutory issue of whether petitioner was "disabled for useful and efficient service in the grade or class of position last occupied by" him. D.C. Code § 4-607 (a) (1988).

I.

Petitioner was appointed to the MPD in July 1968. His problems leading up to his request for disability retirement began in September 1970 when he was assaulted while on duty at RFK Stadium in Washington, D.C. After the assault he was treated for lacerations and back pain, and returned to duty. He then made repeated visits to the Police and Fire Clinic (the Clinic) complaining of severe back pain, until in October 1970 he was admitted to the Washington Hospital Center with a diagnosis of "lumbosacral strain with mild radiculitis to the left," as well as a cervical strain. He returned to full duty in 1971, but made additional visits to the Clinic complaining of pain that was classified as an exacerbation of lumbosacral strain. In February 1973 he was again admitted to the hospital for severe lower back pain, and after returning to duty in March, he was placed on sick leave for varying periods in March, May and August of 1973. In February 1974 and February 1975 he was again hospitalized with lower back pain and numbness in his right leg, resulting in a further diagnosis of exacerbation of lumbar strain with osteoarthritic changes of the lumbar spine. Through the end of 1975 he was on sick leave and was hospitalized once more, again with a diagnosis of chronic lumbar strain with degenerative arthritic changes. In February 1976 Dr. Samuel Mitchell, writing for the Board of Police and Fire Surgeons (BOS), recommended petitioner's disability retirement, but apparently the Police and Firefighters Retirement and Relief Board (Retirement Board or Board) never ruled on the recommendation.

Petitioner was terminated from the MPD in 1977 for reasons unrelated to this case. Upon his reinstatement in 1983, the BOS found him capable of performing light duty and he was given various light duty assignments.

His work, which often was limited to four hours a day, remained interspersed with dozens of clinic visits and periods of sick leave. The clinic physicians, however, continued to believe that he was capable of performing light duty assignments. On June 6, 1985, a neurosurgeon, Arthur Hustead, reported that a CAT scan indicated degenerative changes throughout the lumbar spine with evidence of a herniated disc. He recommended that petitioner seek disability retirement. In August 1985 petitioner reported to the Clinic complaining of severe back pain and was placed on sick leave. He remained on sick leave until December 2, at which time he was ordered back to work after an investigation by the Casualty Branch of the MPD Internal Affairs Division (IAD) *fn1 In September of that year he was examined by another orthopedic surgeon, Stephen Gunther, who reported that he was suffering from "degenerative arthritis of lower lumbar spine with considerable disc space narrowing at L4-5 and L5-S1." Dr. Gunther also noted that petitioner's expressions of pain were exaggerate and his responses somewhat histrionic, and expressed the opinion that he was able to perform light duty assignments as long as he was free to stand and walk around as frequently as necessary.

In 1985 petitioner became the focus of an IAD investigation. Between October 2 and November 5 he was placed under surveillance and his activities videotaped. He was observed leaving and entering his car, walking back and forth between his car and residence, and bending and carrying various objects, including fishing and archery equipment. On November 27, 1985, the BOS, after reviewing the tape and considering Dr. Gunther's report, concluded that petitioner was able to do a full tour of limited duty.

On December 9, 1986, petitioner's received a notice of proposed termination for malingering and neglect of duty. An adverse action hearing was held on January 22 and February 11, 1987, before three police officials, at which the videotape was shown. Dr. Mitchell, petitioner's treating physician at the Clinic and a member of the BOS, testified that the videotape showed petitioner engaged in activities he claimed he could not do. Dr. Mitchell expressed the opinion that petitioner could have performed limited duty between August and December 1985. Dr. Hustead testified that petitioner's condition had worsened since 1985 and that his symptoms fluctuated from week to week and sometimes hour to hour, but that in his opinion petitioner could perform some limited duty for four hours daily. He agreed with Dr. Gunther that petitioner sometimes exaggerated his pain, though not always. Dr. Hustead had treated petitioner seven times between 1984 and 1986.

On July 30, 1987, the adverse action panel found petitioner guilty of malingering and notified him of his termination from the police department effective August 22, 1987. The panel concluded that petitioner had feigned the degree of his disability in that "he documented activities of the officer while on sick leave were equivalent to, if not beyond, the scope of those performed by limited duty personnel with similar types of injuries." Petitioner filed an appeal with the District of Columbia Office of Employee Appeals which is pending at the present time.

On August 21, 1987, the day before his termination became effective, petitioner requested that he be considered for disability retirement by the Retirement Board. The Board conducted a hearing on his retirement request on August 3, 1989. *fn2 It heard testimony from Dr. Lawrence A. Manning of the BOS, Captain William Freeman and Lieutenant Michael Galante -- two of petitioner's former supervisors -- and petitioner himself, as well as viewing the IAD videotape. The Board concluded that petitioner had "failed to provide persuasive documented or testimonial evidence that he was disabled from performing useful and efficient service for the department before his termination. . . . Indeed, his outside, private physicians as well as the BOS believed he was able to perform limited duty assignments for the department." In its findings, the Board noted the determination of the police adverse action panel that petitioner had "feigned illness or disability in order to evade the performance of duty" and, "because of the question of [petitioner's] motivation," discounted the testimony of Lieutenant Galante and Captain Freeman that he had been unable to perform useful and efficient service.

II.

To receive disability retirement, an officer must show: (1) a disability, incurred in the performance of duty, (2) from useful and efficient service (3) in the grade or class of position last occupied. Szego v. Police & Firefighters Retirement & Relief Bd., 528 A.2d 1233, 1235 (D.C.1987); D.C. Code §§ 4-607 (2), -616. "Implicit in these requirements is a fourth: capacity to perform the work assigned given the nature of the injury or disability." Id. The Board stipulated that any disability petitioner had incurred was sustained in the performance of duty, but found that he was not disabled from performing useful and efficient service. Petitioner argues, to the contrary, that the record "compels the finding" that he was disabled for useful and efficient service and that the Board's contrary finding is unsupported by substantial evidence. D.C. Cede § 1-1510 (a) (3) (E) (1987).

Petitioner's task at this stage is not an easy one. An officer seeking disability retirement "bears the burden of showing that there is no job available which he can perform in the grade or class of position he last occupied in the Department." Wells v. Police & Firefighter's Retirement & Relief Bd., 459 A.2d 136, 139 (D.C.1983) (en banc). Our standard of review of the Board's findings is deferential, "for it is not the function or authority of the reviewing court to superimpose its opinion upon the legitimate action of an administrative agency." Coakley v. Police & Firemen's Retirement & Relief Bd., 370 A.2d 1345, 1347-48 (D.C.1977). In this case, the Board had before it substantial medical evidence supporting its Conclusion that petitioner was able to) perform limited duty for the department at the time he requested retirement. *fn3 We conclude, however, that it is impossible presently to review the Board's Conclusion because the Board did not resolve issues critical to whether petitioner is disabled from performing useful and ...


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