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Franchak v. Dist. of Columbia Metropolitan Police Dep't

August 2, 2007

STEPHEN FRANCHAK, APPELLANT,
v.
DISTRICT OF COLUMBIA METROPOLITAN POLICE DEPARTMENT, APPELLEE.



Appeal from the Superior Court of the District of Columbia (CAP5584-05) (Hon. Neal E. Kravitz,Trial Judge).

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

Argued June 21, 2007

Before REID, FISHER, and BLACKBURNE-RIGSBY, Associate Judges.

This case involves a claim by appellant, District of Columbia Metropolitan Police Department ("MPD") Officer Stephen Franchak, for administrative sick leave due to an on-duty psychological injury/illness -- acute stress disorder, or post traumatic stress disorder ("PSTD"). Appellee, MPD, classified Officer Franchak's illness as a non-performance-of-duty injury and denied his claim. Subsequently, the trial court affirmed the MPD's decision. In his appeal before this court, Officer Franchak challenges the agency's decision on the grounds that MPD applied an incorrect legal standard and its conclusions were not based on substantial evidence. We affirm the agency's decision, concluding that it is grounded in correct legal principles and there is substantial evidence in the record to support it.

FACTUAL SUMMARY

On August 19, 2003, at approximately 11:10 p.m., Officer Franchak was on patrol duty in a marked police cruiser when he observed a vehicle missing its front license plate and parked illegally in the 1900 block of 9th Street, in the Northwest quadrant of the District of Columbia. Officer Franchak pulled alongside the vehicle and exited the cruiser to speak with the driver of the car. Officer Brett Brown, a uniformed MPD officer who was also on patrol, stopped to assist Officer Franchak. Officer Franchak obtained the driver's consent to search the car and the driver got out of the vehicle. With Officer Brown standing by, Officer Franchak commenced the search. The driver began to walk away, heading south on 9th Street. Officer Brown called out to the driver to stop, but the driver began to run and Officer Brown gave chase. Officer Franchak remained with the vehicle because the search had revealed drugs. He reported the foot chase by radio to a police dispatcher.

Officer Brown caught the driver on the 800 block of T Street, and was escorting him back to the police cruisers when he began to verbally and physically resist Officer Brown. The driver reached for Officer Brown's service pistol partially removing it from the holster, but Officer Brown was able to gain control of the pistol. When the driver lunged towards him, Officer Brown discharged his service pistol shooting and fatally wounding him. Officer Franchak did not witness the struggle or shooting, but he heard the gunshots, notified the police dispatcher, and requested that MPD send someone to check on Officer Brown. When Officer Franchak arrived at the scene of the shooting he found Officer Brown on the ground, with the driver lying on top of him, dead. MPD gave both Officer Franchak and Officer Brown three days of administrative leave following the incident. Following his three days of administrative leave, Officer Franchak took previously scheduled leave.

On September 2, 2003, when Officer Franchak returned to work, he reported having difficulty sleeping. On September 3, 2003, he saw a doctor at the Police and Fire Clinic ("PFC") who prescribed sleeping medicine (Ambien), and he was evaluated by a licensed psychologist, C. Richard Filson, Ed.D. According to Dr. Filson's September 3, 2003 evaluation, Officer Franchak "report[ed] . . . that he is continuing to present with 'zoning out' (?? Disassociative) episodes during the day, intrusive memories of the event, mild hypervigilance, initial and middle insomnia which is refractory to prescribed Ambien. . . ." He noted Officer Franchak's denial of past mental or physical health problems. Dr. Filson's diagnostic impression was "acute stress disorder." On September 19, 2003, Officer Franchak filed a PD Form 42 (injury or illness report).*fn1 Under "Nature of Injury/Illness" he wrote: "Sleep Depr[i]vation Post Traumatic Stress"; and as the "Cause" of his injury/illness, he stated: "Officer Involved in Shooting . . . ."

Officer Franchak returned to the PFC for follow-up visits on September 24, 2003, October 8, 2003, and October 22, 2003, and was seen by various health professionals at the PFC, including Dr. Filson. Generally, he was instructed to continue his sick leave until he could sleep through the night without medication. On September 24, 2003, one doctor wrote that Officer Franchak was "[n]ow facing [a] Citizen Review Board complaint on top of other things," and on October 22, 2003, Dr. Filson stated, in part, that Officer Franchak experienced "mild, occasional middle insomnia," that Officer Franchak was "facing CCRB [Citizen or Civilian Complaint Review Board] next week and [he] want[ed] to know that outcome before" the officer's return to full duty. On October 29, 2003, Dr. Filson advised Officer Franchak that he was asymptomatic and that he could return to full duty. On November 3, 2003, Officer Franchak returned to full duty. He had used approximately 400 hours of sick leave during his absence from work.

On February 27, 2004, MPD's Director of Medical Services Division issued a memorandum which reviewed Officer Franchak's PD Form 42 claim and classified the claimed injury as "non-performance of duty." The Director of Medical Services stated, "although [Officer Franchak] asserted that the matter is stressful to him, [he] has not provided sufficient facts and information in support of his action to leave duty and report 'stress' as the basis." As a result of this determination, the MPD denied Officer Franchak's request for administrative leave, and charged him with roughly 400 hours of sick leave. Officer Franchak filed a timely appeal of the Director's decision, and on May 4, 2005, a Medical Claims Hearing Officer with MPD Human Services Division held an evidentiary hearing on Officer Franchak's appeal.

Following the evidentiary hearing, the Medical Claims Review Officer issued a report on June 15, 2005, affirming the Director of Human Services Division's decision to classify Officer Franchak's leave as "non-performance-of-duty." The Medical Claims Review Officer, Lt. Lamont D. Coleman, Sr., recognized that the "worker compensation provisions of the" District of Columbia Police and Firefighters Retirement and Disability Act, D.C. Code § 5-701 et seq. (2001) ("the Act"), governed Officer Franchak's claim. Lt. Coleman summarized Officer Franchak's testimony during the hearing, including the portion where the officer explained his problem with the shooting:

[Officer Franchak] explained that he has been in many stressful situations throughout his career. He explained that he has been shot at and has had guns pointed at him.

The problem with this shooting, he explained, is that he was the person who initiated the stop. He stated that he was having a hard time dealing with the fact that he put another officer in ...


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