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02/23/93 CHARLES J. DIVINCENZO v. DISTRICT COLUMBIA

February 23, 1993

CHARLES J. DIVINCENZO, PETITIONER
v.
DISTRICT OF COLUMBIA POLICE & FIREFIGHTERS RETIREMENT AND RELIEF BOARD, RESPONDENT



On Petition for Review of a Decision of the District of Columbia Police & Firefighters Retirement and Relief Board.

Before Schwelb, King, and Sullivan, Associate Judges.

The opinion of the court was delivered by: Schwelb

SCHWELB, Associate Judge : On September 26, 1991, following an evidentiary hearing, the Police and Firefighters Retirement and Relief Board (the Relief Board) found that Firefighter Charles J. DiVincenzo, who had been injured while on duty, was not totally disabled, and that he was not precluded from performing useful and efficient service by reason of injuries incurred while on duty. See D.C. Code §§ 4-607(2), 4-616 (1989). The Relief Board therefore held that DiVincenzo was not entitled to disability retirement or to the annuity which accompanies such retirement. Because the Relief Board failed to make adequate findings on the critical issue whether DiVincenzo had been offered a position in which he could do useful and productive work in spite of his condition, we vacate the decision and remand the case to the Board for further proceedings.

I

The historical facts are largely undisputed. On October 24, 1965, at the age of 22, DiVincenzo was appointed to the District of Columbia Fire Department and began his career as a firefighter. On April 5, 1968, during disturbances following the assassination of Dr. Martin Luther King, Jr., he was hit by a rock thrown by a rioter and suffered injury to his back. Over the next fifteen years, DiVincenzo reinjured his back on several occasions while on duty. In June 1982, while testing a hose, DiVincenzo experienced a sharp pain in his lower back and legs.

Claiming that he was unable to perform his regular duties, Firefighter DiVincenzo was placed on sick leave until March of 1983. At that time, he was released for limited duty and assigned to guard a firehouse. Unfortunately, the Relief Board made no findings as to what his responsibilities at the firehouse were. According to DiVincenzo, however, "they put me at a firehouse as a guard, walking up and down, opening up doors." After noting that the station house had a spiral stairway, DiVincenzo testified that

they gave me a job that I wasn't capable of doing. I wasn't capable of protecting the fire house, walking up and down the steps. Now, we're talking about a 16-hour -- you know, from 4:00 o'clock on to 6:00 or 7:00 o'clock the next morning and at 24 Engine -- You know how many times they run. Up and down the steps. That was one of the things the doctor told me, you know, walking up and down steps.

DiVincenzo testified that after one day of duty, he experienced further back pain while manually closing a firehouse door. He returned to the clinic and reported that he was unable to do the "limited duty" assigned to him. He requested a different and less physically exacting assignment, but was placed on sick leave once again. In June 1983, DiVincenzo's sick leave ran out, and he was placed on leave without pay, a status in which he remained until the Board's decision in this case. During a part of this period, DiVincenzo worked as a courier and drove a truck for that purpose.

Firefighter DiVincenzo was examined from time to time by several physicians while he was on leave without pay. In 1990, Dr. Norman Horowitz reported that DiVincenzo suffered from "a 40% restriction of forward bending, with tenderness in the sacroiliac region." Dr. Horowitz directed that an MRI *fn1 examination be performed, and DiVincenzo was found to be suffering, among other things, from a small left central disc herniation, as well as mild degenerative arthritic changes. Further tests revealed substantial deficits in DiVincenzo's left and right quadriceps muscles and in his left and right hamstring muscles.

On February 1, 1991, the Board of Police and Fire Surgeons considered DiVincenzo's case (BPFS). BPFS found that DiVincenzo was suffering from lumbar disc disease and recommended that he be retired on disability. The BPFS recommendation was communicated to the Relief Board, which held an evidentiary hearing. The Relief Board heard the testimony of Dr. Lucio Villareal, one of the BPFS physicians, and of Firefighter DiVincenzo. The Relief Board also considered DiVincenzo's medical records.

Dr. Villareal was questioned by a member of the Relief Board as to the reason for the BPFS recommendation that DiVincenzo be retired on disability rather than placed on limited duty, as several physicians had previously suggested. Dr. Villareal responded that disability retirement was an

administrative alternative in that every time we try to put him back, he would say that he couldn't do it because he was in too much pain.

By a vote of 4:3, the Relief Board denied DiVincenzo's application for retirement. After considering the medical evidence, the Board concluded that DiVincenzo "suffered from a non-disabling lumbar disc disease . . . . " (Emphasis in original). The Board further gave

credence to the Board of Surgeons' representative, Dr. Villareal, who opined that can, in fact perform, but instead has refused to perform, limited duty stating that he is experiencing pain. Additionally virtually all of [the medical] reports through 1983, before was placed on indefinite leave without pay, indicated that degenerative lumbar changes were within the normal limits for a person of his age and that [the physician] saw no objective findings that ...


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