Petition for Review of a Decision of the District of Columbia Police and Firefighters' Retirement and Relief Board
Before Ferren,* Acting Chief Judge, and King and Sullivan, Associate Judges.
The opinion of the court was delivered by: Ferren
FERREN, Acting Chief Judge: Petitioner appeals from a decision of the District of Columbia Police and Firefighters' Retirement and Relief Board ("Board") ruling, under D.C. Code § 4-615 (a) (1988), that his pre-existing condition, congenital spinal stenosis, and not the slip-and-fall injury he sustained while on duty, caused the disability that made him unfit for further duty with the Metropolitan Police Department. Petitioner contends that (1) a congenital condition is not an "injury received or disease contracted other than in the performance of duty," within the meaning of § 4-615 (a), and that (2) the Board's finding as to the part petitioner's spinal stenosis played in his disability was not supported by substantial evidence of record. We disagree with both contentions and thus affirm.
Petitioner joined the Metropolitan Police Department in 1969. While on duty on March 17, 1990, petitioner was leaving his patrol car to help a victim of a stabbing when he slipped and fell on wet pavement. He injured his ankle, shoulder, and back.
Two days later, petitioner reported to the Police and Fire Clinic because his injuries had become increasingly painful. Dr. Villa-Real examined petitioner, scheduled him for radiology and Magnetic Resonance Imaging (MRI) exams, and placed him on sick leave. Dr. Press conducted the radiology examination on May 25, and concluded that petitioner had some "generalized demineralization of the bones" of his spine. On June 22, Dr. Mark conducted the MRI exam and found that petitioner was suffering from congenital spinal stenosis, a condition characterized by the abnormal narrowing of the spine. Dr. Mark's report explained that "no evidence of disc herniation or acquired spinal stenosis is noted."
On July 11, Dr. Linehan, an orthopaedic surgeon, examined petitioner. Although Dr. Linehan confirmed that petitioner's x-rays showed a narrowing of his spine, the doctor concluded that petitioner's "symptoms are not those of spinal stenosis at present." Dr. Linehan prescribed a different anti-inflammatory medication and continued to follow petitioner's condition through several follow-up consultations over the next few months. The follow-up forms submitted to the Police and Fire Clinic from the July 25, August 22, and September 12 consultations with Dr. Linehan listed spinal stenosis as the diagnosis and stated that petitioner's prognosis was poor. During the September 12 examination, Dr. Linehan ordered electrodiagnostic, EMG, and nerve conduction studies. Dr. Blazina performed these tests on September 18 and concluded that petitioner had damage at the root of his vertebrae where the lumbar spine meets the sacral spine, a finding "consistent with a lumbosacral spinal stenosis." On October 10, Dr. Linehan concluded that petitioner showed "subjective symptoms of spinal stenosis."
Petitioner reported to the clinic on December 7, 1990 where Dr. Garmon, a Medical Officer at the Police and Fire Clinic, examined him. Dr. Garmon told petitioner to report for light duty. On December 20, petitioner experienced painful back spasms and numbness in his left leg. He reported to the clinic the next day, and Dr. Garmon placed him on sick leave.
Dr. Dennis conducted an independent medical evaluation on February 27 and confirmed that petitioner "had symptomatic spinal stenosis precipitated by a work injury occurring in 1990." He recommended that the Board place petitioner on disability retirement.
Petitioner returned to limited duty after a March 8 clinic visit. He reported to the clinic on April 2, however, complaining of painful back spasms and numbness in his left leg. Dr. Garmon examined petitioner and placed him on sick leave. Petitioner returned to limited duty on July 11, but again experienced back pain. He reported to Dr. Garmon at the clinic, who placed him on sick leave on July 15. Petitioner did not return to work after July 15, 1991.
The Board of Police and Fire Surgeons recommended petitioner to the Retirement Board for disability retirement on December 12, 1991. The Summary Surgical Service Report submitted by the Board of Police and Fire Surgeons recommended disability with a functional impairment of ten percent, based on a diagnosis of "1. Chronic lumbar strain; 2. Recurrent S1 radiculopathy; and 3. Congenital spinal stenosis." At the hearing before the Board on April 23, 1992, Dr. Garmon explained these conditions in greater detail:
The chronic lumbar strain refers to an ailment involving his lumbar musculature which is actually recurrent producing pain and discomfort, aggravated by weather, increased activities, bending, lifting, pushing and pulling, that sort of thing. The current S-1 radiculopathy refers to nerve irritation at the L-5, S-1 level in the back, basically caused, we feel caused by an impingement there either from a spur, possibly a bulging disk or the fact that there is some congenital stenosis in the area, tightness or less room for the nerve endings to exit. And three, there's a congenital spinal stenosis. Congenital, of course, meaning it's something that's birth related. The canal, spinal canal, is narrowed more than usual, more than what would be normal.
Dr. Garmon also explained that there was a 60 to 70 percent likelihood that petitioner would not have had the symptoms he reported from his fall if had he had not been inflicted with spinal stenosis. *fn1
The Retirement Board adopted the recommendation of the Board of Police and Fire Surgeons and found that petitioner was disabled from useful and efficient service with a functional impairment of ten percent as a result of (1) chronic lumbar strain, (2) recurrent S1 radiculopathy, and (3) congenital spinal stenosis. Furthermore, the Board accepted Dr. Garmon's Conclusion that petitioner's on-duty slip and fall injury merely aggravated his pre-existing spinal stenosis and, ...