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Bausch v. District of Columbia Police & Firefighters' Retirement and Relief Board

May 24, 2007

CHRISTOPHER J. BAUSCH, PETITIONER,
v.
DISTRICT OF COLUMBIA POLICE & FIREFIGHTERS' RETIREMENT AND RELIEF BOARD, RESPONDENT.



The opinion of the court was delivered by: Ruiz, Associate Judge

On Petition For Review Of a Decision of The District of Columbia Police and Firefighters' Retirement and Relief Board (FD-2007-96).

Argued March 14, 2007

Before FARRELL and RUIZ, Associate Judges,and SCHWELB, Senior Judge.

Petitioner, Christopher J. Bausch, asks us to review and reverse a decision of the District of Columbia Police and Firefighters' Retirement and Relief Board ("Relief Board"), which calculated petitioner's annuity using salaries of potential employment positions measured as of the time of the Relief Board's initial order granting retirement on the basis of disability, and not, as petitioner contended, updated to the time of the order now on review. We defer to the Relief Board's reasonable interpretation of its regulations and affirm.

Factual Summary

Petitioner became a member of the D.C. Fire and Emergency Medical Services Department as a firefighter in September of 1980. Between 1984 and 1994, he repeatedly injured his back and knee while on duty and underwent a series of surgeries. On December 14, 1994, the Administrative Services Bureau, Medical Services Division, of the Metropolitan Police Department recommended to the Relief Board that petitioner be classified as "permanently disabled with a functional impairment of 10%."

On October 28, 1996, after a hearing, the Relief Board found petitioner to be incapacitated due to work-related injuries, and determined that he "be retired under the provisions of D.C. Code (1981) §§ 4-607 (2) and 4-616,"*fn1 which provides for a disability retirement annuity based on the retiree's "percentage of disability." D.C. Code § 5-710 (e)(2)(B) (2001). Pursuant to the formula in 7 DCMR § 2515.3 (e) (1986) for determining the statutory disability retirement annuity, the Relief Board then calculated petitioner's "percentage of disability" at 54%, a calculation based on the average salary of five positions it concluded petitioner was able to perform (storekeeper, library technician, library aide, peak-time bank teller, and receptionist) and his salary as a firefighter.*fn2 The statute provides that the annuity shall be no more than 70% of the retired member's basic salary "at the time of retirement," but no less than 40% of such basic salary. D.C. Code § 5-710 (e)(2)(D). The Relief Board determined that petitioner was entitled to the minimum 40% annuity, or $16,628.

In his first petition to this court, petitioner claimed that he was incapable of performing any of the five jobs chosen by the Relief Board to calculate his percentage of disability. Before this court ruled on the petition, the District moved to remand the case to the Relief Board for recalculation of petitioner's percentage of disability, based on this court's decision in Long v. D.C. Police & Firefighters' Ret. & Relief Bd., 728 A.2d 112 (D.C. 1999).*fn3

This court granted the motion for remand.

On remand, Relief Board Chairperson Alma L. Hicks wrote petitioner a letter suggesting four new positions for use in calculating petitioner's percentage of disability: aide, customer service/data entry, switchboard operator/receptionist, and exterminator. After petitioner rejected all of these positions, the Relief Board issued an amended order, which substituted the position of switchboard operator/receptionist for peak-time bank teller.*fn4 The Relief Board's amended order again resulted in the minimum 40% annuity of $16,628.

In his second petition to this court, petitioner requested we review the Relief Board's amended order, claiming that it was arbitrary and capricious. The District again moved to remand the case, and this court granted the District's motion.

On April 25, 2001, the Relief Board issued a second amended order in the case, which recalculated petitioner's annuity, leaving out the position of switchboard operator/receptionist, and using the four remaining positions to calculate the percentage of disability. The new calculation again yielded the minimum 40% annuity. In the third petition, for review of the second amended order, this court concluded that the Relief Board had erred in selecting three of the four positions that it had used to calculate petitioner's percentage of disability, and we remanded the case to the Relief Board "to redetermine petitioner's annuity" using only positions that exist and that petitioner is qualified for and able to perform.*fn5

Bausch v. D.C. Police & Firefighters' Ret. & Relief Bd., 855 A.2d 1121, 1125 (D.C. 2004).

Following the court-ordered remand, on September 24, 2004, the Relief Board issued a third amended order using only the receptionist position approved by this court, which resulted in a percentage of disability of 58%, again entitling petitioner to the 40% minimum annuity. Petitioner filed a motion for reconsideration or rehearing, which did not challenge the position used for the calculation but claimed that the Relief Board had erred in using the salaries of his position as a firefighter and a receptionist position in 1996, rather than the salaries of those positions as of the time of its order in September, 2004. In his motion, petitioner argued that under 7 DCMR ยง 2515.3 (c), which requires that salaries used to calculate ...


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