On Petition For Review Of a Decision of The District of Columbia Police and Firefighters' Retirement and Relief Board. (PD-01-1286).
The opinion of the court was delivered by: Ruiz, Associate Judge
Before FARRELL, RUIZ and GLICKMAN, Associate Judges.
Petitioner, Edith R. Pierce, seeks review of a decision of the District of Columbia Police and Firefighters' Retirement and Relief Board ("the Board") concluding that she is permanently disabled but that she is not entitled to the more generous retirement benefits afforded to officers who become disabled by injuries suffered in the performance of duty because her disabling condition, a depressive disorder, was not so incurred. Petitioner does not challenge the Board's finding that she is permanently disabled, but rather contends that she established a prima facie case that her mental disability was incurred in the performance of duty, and that the government failed to satisfy its burden of proof to establish by substantial evidence that her disabling condition was not caused by onthe-job duties. We hold that although one of the Board's findings is not supported by substantial evidence, its remaining substantiated findings compel the Board's conclusion that petitioner's claim fails as a matter of law, and we affirm.
Petitioner joined the District of Columbia Metropolitan Police Department ("MPD") in 1978 at the age of 21 and rose to the rank of Lieutenant. At the time of the Board's hearing, Lt. Pierce had accumulated over twenty-four years of service with the Department. She sustained various on and off-duty injuries through her years as an officer, culminating in November 1997, when she slipped and struck the back of her head and neck against the frame of a police cruiser while entering the vehicle. She was treated at the Police & Fire Clinic for her injuries and returned to full duty in February 1998. The following year, in January 1999, Lt. Pierce reported to the Clinic complaining of "pain and swelling" in the back of her head, neck, shoulders and back, attributing her symptoms to an aggravation of the November 1997 injury. She also complained of "stress, insomnia, headaches, increased appetite and depression,"and submitted an extensive injury report linking the cause of her mental condition to a "hostile work environment, humiliation by subordinates and peers," and accusing her supervisor, Commander Winston Robinson, of continuous "belittlement and harassment." Based on her reports, she was diagnosed as being severely depressed and placed on sick leave for a duty-related illness. Dr. C. Richard Filson, the treating psychologist at the clinic, diagnosed the petitioner as having Major Depressive Disorder, Severe Single Episode, and her police powers were revoked on March 3, 1999. In April of that year, petitioner returned to light duty, only to develop psychotic symptoms (specifically, frank paranoid ideation, accompanying suspiciousness, irritability and misperceptions of environmental occurrences) in the following month. She last worked as an officer in September of 1999. Although it appears that her illness was then classified as not incurred in the performance of duty ("non-POD"), the following month, Ira Stohlman, the Director of MPD's Medical Services Division ("MDEAP"), reconsidered that determination and reclassified petitioner's illness as having been incurred in the performance of duty ("POD").
Dr. Filson prepared a report in September 2001, recommending that petitioner be retired from the police force due to her diagnosis, concluding: "Lt. Edith Pierce is permanently disabled. According to AMA Guides, Fourth Edition, she falls into a Class (4) rating (Marked Impairment) which translates into an approximately 75% impairment." The report related the history of petitioner's mental illness, noting that the "crisis," as described in Dr. Filson's report, had its genesis in "several years of harassment and discrimination against her. She also alleges that she suffered insubordination from those officers which were under her command and that this was never addressed due to this same pattern of ongoing harassment." Dr. Filson's report noted that "[a]s the documents reveal, her condition was originally ruled non-POD and that decision was subsequently reversed upon further investigation. She has been continuously treated as a POD related behavioral health case ever since that time." Ira Stohlman added a notation at the end of Dr. Filson's retirement recommendation, stating that "the above member's condition, which permanently prevents the performance of full duties, occurred during the performance of duty." Dr. Oliveria, of the Police & Fire Clinic, who also treated Lt. Pierce for over two years from 1999 - 2001, submitted a supplementary retirement report in which she concurred with Dr. Filson's diagnosis of Lt. Pierce's condition and permanent disability.*fn1
Lt. Pierce formally requested disability retirement in November of 2001. At the hearing before the Board only Dr. Filson and the petitioner testified. Dr. Filson reported that Lt. Pierce was diagnosed with Major Depressive Disorder, Severe with Psychotic Features, and had a seventy-five percent disability rating. The questioning of Dr. Filson centered on whether the illness occurred in the petitioner's performance of duty. Dr. Filson reported that petitioner's disability "was ruled by MPD as POD . . . [and] I have no evidence that would suggest it's otherwise." Dr. Filson emphasized that he was testifying as a doctor and informed the Board that "I do not, nor does any doctor at the hospital, or at the clinic . . . make the decision what is POD and what is not POD." He further testified that "most people who would get this ill would have some prior history of not functioning as well as she did," yet, he noted, the petitioner had been a high-functioning police officer before her illness. Additionally, Dr. Filson made it clear to the Board that, although an underlying condition was "possible," there was "no evidence" to suggest that the petitioner suffered from a pre-existing mental disorder. Nevertheless, Dr. Filson informed the Board that he had no objective evidence to link the petitioner's illness to her performance of duties. He could "only tie [petitioner's disability] to the things that she tells me. . . . I do not independently know of any of these events, whether they occurred or they didn't occur. I only know what the patient tells me . . . ."
In her testimony, petitioner recounted a number of incidents of harassment on the job.
She stated that she had filed a number of complaints with the MPD, and that she also had filed a claim involving an alleged denial of a promotion with the EEOC, which she ultimately settled with the police department. She did not, however, give any details as to the nature of the complaint, or the terms of her settlement with the MPD.*fn2 There is no other evidence in the record concerning the settlement of the claim filed with the EEOC. Relying on petitioner's personnel record, the government argued that although petitioner had filed various employment complaints during her career at MPD alleging harassment, discrimination, insubordination, perceived insults, and career stagnation, none of these claims had been sustained after investigation.
A unanimous Board found by a preponderance of the evidence that Lt. Pierce "suffers from Major Depressive Disorder, Severe with Psychotic Features" and is "incapacitated from further duty within the Department by reason of disability." The Board also determined that because her "disabling condition was not incurred in the performance of duty," petitioner was not entitled to receive the more generous benefits provided pursuant to D.C. Code § 5-710 (a) (2001). The Board, citing Jocklyn M. Davis and United States Postal Service, 2002 ECAB Lexis 1720 (Employees Comp. App. Bd. Aug. 20, 2002), expressed the view that a claimant's own perception of harassment in the workplace is not presumed compensable as work-related unless the alleged incidents were supported by objective evidence and were unreasonable. In determining whether such a showing had been made here, the Board found significant the absence of objective evidence that substantiated any of petitioner's numerous employment complaints, and highlighted various complaints in her personnel file which were investigated and found to be "not sustained." The Board noted that Dr. Filson's testimony as to whether petitioner's illness was incurred in the performance of duty was based exclusively on the Department's prior POD determination and the history he had obtained from Lt. Pierce, and thus did not furnish independent evidentiary support which would confirm her allegations. The Board also noted that the evidence regarding a pre-existing illness was in conflict, pointing to Dr. Filson's testimony that although there was no evidence to suggest the petitioner suffered from a mental disorder prior to her present illness, there was a possibility that the petitioner had an underlying condition which could have surfaced regardless of her employment.
In conclusion, the Board articulated three factors for its determination: (1) petitioner's complaints of harassment and discrimination have not been substantiated or sustained, (2) the testimonial evidence regarding an employment-related basis for petitioner's illness is based solely on these unsubstantiated complaints, and (3) the conflicting evidence regarding a pre-existing illness.
The police disability benefit system is structured to provide a higher pension rate for those officers who retire as a result of disabilities incurred during their service. If a "member is injured or contracts a disease in the performance of duty or such injury or disease is aggravated by such duty," upon retirement for this disability, the officer will receive an annuity computed at the "rate of 21/2 % percent of his [or her] average pay for each year or portion thereof of his [or her] service," which shall not be less than two-thirds of the officer's average yearly salary. D.C. Code § 5-710 (a). However, if a disability is the result of an "injury received or disease contracted other than in the performance of duty," the officer is entitled to a smaller pension, computed at the rate of two percent of the average salary for each year of service, but not less than forty percent of the officer's average yearly salary. See D.C. Code ...