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09/13/91 LENEVA E. CROSKEY v. DISTRICT COLUMBIA

September 13, 1991

LENEVA E. CROSKEY, PETITIONER
v.
DISTRICT OF COLUMBIA POLICE AND FIREFIGHTERS' RETIREMENT AND RELIEF BOARD, ET AL., RESPONDENTS



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

Ferren and Farrell, Associate Judges, and Belson, Senior Judge.* Opinion for the court by Senior Judge Belson. Dissenting opinion by Associate Judge Ferren.

The opinion of the court was delivered by: Belson

Petitioner Leneva E. Croskey seeks review of the decision of the District of Columbia Police and Firefighters' Retirement and Relief Board that her psychological disability was not incurred in the performance of duty. *fn1 We affirm.

Croskey, while working as an officer with the Metropolitan Police Department, was shot in the leg during a shootout between police and drug dealers. Croskey recovered from the injury, but when she returned to work she began to suffer a post-traumatic stress disorder that made her restless and depressed. Following a hearing, the Board concluded that Croskey was disabled for performing useful and efficient service, but that Croskey's disability stemmed from a long history of personality disorder rather than from the shooting incident. In its final order, the Board retired Croskey for disability not incurred in the performance of duty pursuant to D.C. Code § 4-615 (1988). On her petition here, Croskey contends that she is entitled to the higher level of benefits provided by D.C. Code § 4-616 (1988).

Section 4-616 provides a special pension rate for two types of disabilities: 1) those that result directly from an injury or disease that is incurred in the performance of duty; and 2) those that arise from the aggravation of such injury or disease. *fn2 See Kirkwood v. District of Columbia Police & Firemen's Retirement & Relief Bd., 468 A.2d 965, 968-69 (D.C. 1983). A claimant cannot qualify for the special pension rate if the on-duty injury aggravates some pre-existing, nonservice-related injury. Id. at 969. As this court stated in Allen v. District of Columbia Police & Firefighters' Retirement & Relief Bd.:

a Metropolitan Police officer with some pre-existing and nonservice-related psychological problem who becomes disabled when this problem is aggravated by a service-connected injury or illness, does not qualify under § 4-616 for an annuity based on performance-of-duty aggravation.

528 A.2d 1225, 1231 (D.C. 1987) (emphasis added). Similarly, in Kirkwood, supra, this court affirmed the Board's denial of benefits under § 4-616 because, although the petitioner's duties as a police officer "may have aggravated petitioner's emotional and psychological difficulties, the etiology of petitioner's condition rooted in experiences and events that predate his employment with the Department." 468 A.2d at 968.

Thus, when the duty related injury aggravates a pre-existing non-duty related injury with the result that the pre-existing injury or condition still contributes to the disability, a claimant is not entitled to the higher level of benefits. Allen, supra, 528 A.2d at 1231. But when the later duty related injury is so serious that it would have itself caused the disability regardless of the existence of the previous injury or condition, the disability can be said to result directly from the duty-related injury and the claimant will be entitled to the higher level of benefits. *fn3

The determination of whether an injury was incurred in the performance of duty is a factual finding which this court must uphold if it is supported by substantial evidence. See Kirkwood, supra, 468 A.2d at 967. Substantial evidence requires "'more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a Conclusion.'" Baumgartner, supra note 3, 527 A.2d at 316 (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 83 L. Ed. 126 (1938) (citations omitted)).

Here, the Board determined that Croskey was disabled as a result of post-traumatic stress disorder and borderline personality disorder. The Board preceded that determination with this finding of fact:

The Board finds that member had a long history of personality disorder requiring much psychiatric attention from the Psychiatric Service of the Board of Surgeons, psychologists and therapists before the shooting incident on April 30, 1988.

The Board then quoted the reference a witness, Dr. Wellhouse, made to an evaluation by another psychiatrist:

Dr. Wellhouse referred to Dr. Holmes' psychiatric evaluation of May 17, 1989 to explain the Post-traumatic stress disorder: ". . . There are four criteria that need to be satisfied and they tend to be most prevalent in individuals with pre-existing pathology. In other words, if a person has personality problems before, they may be ever more likely to break down under stress in a traumatic situation and she points out Officer Croskey does meet the criteria."

The Board went on to decide that the post-traumatic stress disorder was rooted in the pre-existing borderline ...


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