Petition for Review of a Decision of the Police and Firefighters and Relief Board.
Before Ferren, Steadman and King, Associate Judges.*
Per Curiam: Petitioner James E. Breen was a firefighter with the District of Columbia Fire and Emergency Medical Department for over thirteen years. He seeks review of a decision and order of the Police and Firefighters Retirement and Relief Board ("Board"), in which that agency determined his retirement annuity. Petitioner specifically contends that the percentage of disability criteria used by the Board to determine his annuity entitlement, pursuant to D.C. Code § 4-616 (e)(2)(A-D) (1994), was not supported by substantial evidence. We agree with petitioner and remand the case for further proceedings consistent with our opinion.
Breen was appointed to the Fire Department on June 9, 1980. At some time during the performance of his duties as a firefighter, Breen sustained a severe back injury. On August 10, 1993, having found that Breen was permanently disabled with a functional impairment of twenty (20) percent based on a diagnosis of status post lumbar laminectomy with residuals, the Board of Surgeons referred Breen's case to the Board for consideration of disability retirement. After a hearing on January 18, 1994, the Board concluded that petitioner's back injury was incurred in the performance of duty, pursuant to § 4-616, and that his disability rendered him incapable of performing useful and efficient service in his assigned firefighter duties with the Department, pursuant to D.C. Code § 4-607 (2) (1994).l The Board's inquiry focused on determining petitioner's percentage of disability, pursuant to § 4-616 (e)(2)(B). Finding Breen to be 61% disabled, the Board held that he was entitled to an annuity of $15,834.38, pursuant to § 4-616 (e)(2)(D). Had the Board determined that petitioner was more than 61% disabled, he would have been entitled to a larger annuity.
Our standard of review is governed by the D.C. Administrative Procedure Act which requires us "to hold unlawful and set aside any action or findings and Conclusions" not supported by substantial evidence. D.C. Code § 1-1510 (a)(3)(E) (1992). "Therefore, court must consider whether the agency findings are supported by reliable, probative, and substantial evidence in the record, and whether the Conclusions reached by the agency flow rationally from these findings." Szego v. Police & Firefighters' Retirement & Relief Board, 528 A.2d 1233, 1235 (D.C. 1987) (citation omitted); see also D.C. Code § 1-1509 (e) (1992); Walsh v. District of Columbia Police & Firefighters Retirement & Relief Board, 523 A.2d 562, 565 (D.C. 1987) (this court "must review the record as a whole" in order "to assure that the Board's decision did not rely on unsupported findings") (citations omitted).
In determining petitioner's percentage of disability, the Board was required to give "due regard" to the following factors:
(i) The nature of the injury or disease;
(ii) The percentage of impairment reported [by the Board of Surgeons] pursuant to subparagraph (A) of this paragraph;
(iii) The position in the Metropolitan Police force or the Fire Department of the District of Columbia held by the member immediately prior to his retirement;
(iv) The age and years of service of the member; and
(v) Any other factors or circumstances which may affect the capacity of the member to earn wages or engage in gainful activity in his disabled condition, including the effect of the disability as it may naturally extend into the future.
D.C. Code § 4-616 (e)(2)(B) (1994). Moreover, § 4-616 (e)(2)(D) states that: "The annuity of a member who is retired under this subsection shall be 70% of his basic salary at the time of retirement multiplied by the percentage of disability for such member as determined in accordance with subparagraph (B) of this paragraph, except that such annuity shall not be less than 40% of his basic salary at the time of retirement." D.C. Code § 4-616 (e)(2)(D) (1994). Taking these provisions into account, the Board used the following formula to calculate petitioner's annuity:
A = current salary for the position held by petitioner (pre-injury) = $37,083
B = average salary for the positions petitioner has the capacity to occupy ...