On Petition for Review of a Decision of the District of Columbia Police and Firefighters' Retirement and Relief Board (PD-1019-05).
The opinion of the court was delivered by: King, Senior Judge
Before RUIZ and FISHER, Associate Judges, and KING, Senior Judge.
Petitioner, James V. Eckert, seeks review of a final decision of the District of Columbia Police and Firefighters' Retirement and Relief Board ("Board"), issued on August 26, 2005, which found him incapacitated for further duty with the Metropolitan Police Department ("MPD") due to a disabling physical injury sustained in the performance of duties. The Board retired Eckert under the provisions of D.C. Code § 5-710 (e)(1) (2001), and calculated his annuity pursuant to D.C. Code § 5-710 (e)(2)(A-D) (2001). The only issue before this court is whether the Board adequately considered Eckert's psychological conditions in calculating his percentage of disability in the formula set out in 7 DCMR § 2515.3 (2007). Because we conclude that Eckert's psychological condition was contested at the hearing, we remand for the Board to make findings of fact on that issue.
Eckert, a nine-year veteran officer of MPD, sustained multiple injuries during a motor vehicle collision while on duty on March 25, 2004. Over the course of the following few weeks, Eckert was evaluated and treated for his physical injuries at the Police and Fire Clinic, ultimately returning to full duty on April 15, 2004. However, Eckert experienced difficulty in the performance of his duties, and after being evaluated by neurologist Dr. David Moore, returned to sick leave on May 1, 2004. Over the next several months, Eckert saw various doctors and was diagnosed with "postconcussive syndrome with insomnia and cognitive problems" and "gradually improving posttraumatic stress syndrome."*fn1
On August 26, 2004, Eckert underwent a comprehensive neuropsychological evaluation at the National Rehabilitation Hospital by Dr. Roebuck-Spencer and Dr. Garmoe. The evaluation indicated that Eckert suffered from worsening emotional difficulties and diagnosed him with Post-Traumatic Stress Disorder ("PTSD") and associated depression. It also indicated that his cognitive difficulties should improve once his associated emotional symptoms were resolved, and that his current cognitive capacity was stable enough for him to return to normal activities. Eckert was reevaluated by Dr. Moore on September 7, 2004 and again diagnosed with PTSD that was being treated separately with psychiatric care.
Concurrently, from June 7, 2004 through January 19, 2005, Eckert was under the psychological care of the Behavioral Health Services ("BHS") division of the Police and Fire Clinic. The diagnoses and reports largely mirrored those of the aforementioned specialists, namely that Eckert suffered from PTSD, depression, and anxiety. At some point around November 2004, Eckert's "behavioral health" issues were determined to be non-performance of duty ("non-POD").*fn2 BHS sent a letter to Eckert on January 13, 2005, indicating that due to this determination, it would no longer be able to provide him with psychiatric services, and that he should seek care from an outside provider. Eckert's final evaluation from the BHS psychiatrist, Dr. Nunez, stated that she "strongly recommended" that Eckert continue treatment in a private setting. During his last appointment with BHS on January 19, 2005, the psychologist, Dr. Jackson, indicated that Eckert was cleared for full duty, and his PTSD was "improved," but that he should seek outside psychological treatment.
B. Proceedings Before the Board
The Board held a hearing on Eckert's case on April 28, 2005. The hearing began with testimony from Dr. Martin Rosenthal, M.D., the director of the Police and Fire Clinic, who stated that Eckert's psychological issues had been resolved, and that therefore further expert testimony on the matter would not be necessary. The Board made reference to the fact that it would consider postponing the hearing if it became clear that petitioner's psychological issues were not resolved; however, Eckert's counsel never requested a continuance. Nonetheless, over the course of the hearing, Eckert's counsel repeatedly questioned the determination that Eckert's psychological issues were resolved. Counsel argued that the evidence that Dr. Rosenthal was relying on was inaccurate and out-of-date; however, Eckert never provided any evidence of his current mental abilities, and he made an admittedly strategic decision not to request a continuance in order to do so.
The Board issued its order on August 26, 2005, finding that Eckert's physical condition permanently disabled him from useful and efficient service with MPD and calculating his annuity accordingly. The Board's order made clear findings of fact regarding Eckert's physical injuries but was largely silent as to petitioner's mental capabilities and psychological functioning. The Board quoted a few segments of the neurological evaluation from the National Rehabilitation Hospital evaluation, stating that it diagnosed Eckert with "mild traumatic brain injury with residual cognitive and emotional difficulties." The Board then quoted the conclusion of the evaluation that Eckert's "current cognitive capacity [is] stable enough for him to return to normal activities."
Our review of a decision of the Board is to ensure that it "(1) made findings of fact on each material, contested factual issue, (2) based those findings on substantial evidence, and (3) drew conclusions of law which followed rationally from the findings." Bausch v. District of Columbia Police & Firefighters' Retirement & Relief Bd., 855 A.2d 1121, 1124 (D.C. 2004) (quoting Beckman v. District of Columbia Police & Firefighters' Retirement & Relief Bd., 810 A.2d 377, 384 (D.C. 2002)). Eckert argues that the Board failed to make findings of fact on a material, contested issue, namely his current psychological condition. Respondent counters by ...