Before Steadman, Schwelb, and Ruiz, Associate Judges.
The opinion of the court was delivered by: Schwelb, Associate Judge
Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.
Petition for Review of a Decision of the District of Columbia Police and Firefighters Retirement and Relief Board
Retired Firefighter Donald E. Long has asked this court to review a decision by the District of Columbia Police and Firefighters Retirement and Relief Board (the Board). The Board rejected Long's application for a pension based on the higher level of benefits provided by D.C. Code § 4-616 (1994) for firefighters injured in the line of duty. Instead, the Board awarded Long the lower level of benefits available pursuant to D.C. Code § 4-615 for injuries not attributable to his work. *fn1 In this court, Long challenges the Board's finding that his injuries were not incurred in the line of duty, and he contends that his benefits were calculated incorrectly. We affirm the Board's decision that Long is entitled only to benefits for injuries not attributable to his work, but we remand with directions to the Board to recalculate those benefits.
Long began his career as a firefighter on June 9, 1980. During the twelve years that followed, Long had several accidents while on duty. Specifically, Long fell from a fire truck, injured himself while jumping off an apparatus, slipped and fell on a wet staircase, and injured his back lifting and pulling heavy objects. Firefighter Long's final on-duty accident occurred in 1992, when he was sliding down a fire pole. He was never able to resume his duties after that accident.
Dr. Alexander Ukoh, a member of the Board of Surgeons, testified that Long suffers from two congenital conditions which can cause back pains: spina bifida occulta and sacral meningomyelocele. According to Dr. Ukoh, these conditions predispose Long to ". . . back injuries and back pains that could be excessive very frequently with mild injuries." The Board found that Long's physical disability prevented him from continuing either full or limited duties as a firefighter. The Board further found that Long's disability resulted from the combined effects of the congenital conditions from which he suffered and the accidents that occurred while he was on duty.
We must affirm the Board's decision if it is supported by substantial evidence. See Szewczyk v. District of Columbia Police & Firefighters Ret. & Relief Bd., 633 A.2d 1, 1 (D.C. 1993) (per curiam); Baumgartner v. Police & Firemen's Ret. & Relief Bd., 527 A.2d 313, 316 (D.C. 1987). Long presented evidence tending to show that he was disabled by on-duty injuries, and it was then incumbent upon the Board to rebut the inference of causation. See Croskey v. District of Columbia Police & Firefighters Ret. & Relief Bd., 596 A.2d 988, 991 (D.C. 1991); Batty v. District of Columbia Police & Firefighters Ret. & Relief Bd., 537 A.2d 204, 205 (D.C. 1988) (per curiam). The ultimate burden of persuasion, however, remains on Long. Lamphier v. District of Columbia Police & Firefighters Ret. & Relief Bd., 698 A.2d 1027, 1032 (D.C. 1997).
The Board could reasonably find, on the basis of Dr. Ukoh's testimony, that Long's disability was caused by a combination of Long's pre-existing congenital conditions and the accidents that he incurred on the job. "[W]hen 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." Croskey, supra, 596 A.2d at 989 (citing Allen v. District of Columbia Police & Firefighters Ret. & Relief Bd., 528 A.2d 1225 (D.C. 1987)); see also Haynie v. District of Columbia Police & Firefighters Ret. & Relief Bd., 640 A.2d 188, 192-93 (D.C. 1994). Accordingly we conclude that the Board's decision as to the proper level of benefits is supported by substantial evidence.
In a motion for reconsideration filed following the Board's order on remand, Long claimed for the first time that he should have received supplemental benefits for the period between the Board's original order of May 13, 1994, and its final order of January 10, 1997. Long's theory was that because jobs that he could have filled had not yet been identified during that period, he was entitled to benefits without any consideration of amounts he could theoretically have earned.
The applicable regulation provides that a petition for reconsideration based in whole or in part on new evidence must be accompanied by an affidavit "to the effect that the petitioner could not, with due diligence, have known or discovered the new matter prior to the date the case was presented to the Board for decision." See 7 DCMR § 2526.2 (1986). Long failed to file such an affidavit or make the required showing, and the Board did not abuse its discretion by denying his motion for reconsideration. Moreover, Long was employed ...