Petition for Review of a Decision of the District of Columbia Police and Firefighters' Retirement and Relief Board (No. PD 1272-98).
The opinion of the court was delivered by: Glickman, Associate Judge
Before GLICKMAN and KRAMER, Associate Judges, and BELSON, Senior Judge.
Petitioner Kenneth L. Shaw challenges the calculation of his annuity by the District of Columbia Police and Firefighters' Retirement and Relief Board (hereinafter referred to as "the Retirement Board" or "the Board"). We agree with Shaw that the Retirement Board's calculation rests on a determination of his earning capacity that is not supported by substantial evidence of available jobs that Shaw has the capacity to perform. We remand this case for a redetermination of Shaw's retirement annuity.
Shaw was appointed to the District of Columbia Metropolitan Police Department (MPD) in 1990. In August of 1996, having been assigned to the MPD "warrant squad," Shaw injured himself in the course of making an arrest when he lost his balance and twisted his back. Following that injury, Shaw experienced chronic debilitating upper back pain, and an MRI scan revealed herniated discs in his thoracic spine. Dr. Michelle Smith-Jeffries, Medical Director of the Police and Fire Clinic, evaluated Shaw and concluded that he was "permanently disabled, with a functional impairment of 15%." The Clinic recommended to the Retirement Board that Shaw be considered for disability retirement.
On November 5, 1998, the Retirement Board held an evidentiary hearing on Shaw's disability claim. At the hearing, Shaw testified that he endures "constant" back pain, which is most intense when he sits or stands for a "long period of time, say like an hour and a half." Shaw, a high school graduate, also testified that, before becoming a police officer, he had worked primarily in the mining industry as, among other things, a truck driver, crane operator, coal sampler, and mason. In addition, Shaw had worked at a bank for three months, where his job was to deliver mail to the post office. Shaw testified that while his job with the MPD warrant squad required him to prepare paperwork on computers, he generally was unfamiliar with word processing and sending e-mail, and he claimed that he could only type three words per minute.
Dr. Smith-Jeffries testified about Shaw's injuries, treatment history, and prognosis, opining that, even with his back injury, Shaw could perform "sedentary and light work." She identified various jobs listed in the Job Bank maintained by the District of Columbia Department of Employment Services (hereinafter referred to as the "Job Bank") that she believed Shaw would have the physical ability to perform. Dr. Smith-Jeffries stated that if she "had to write a [work] restriction for [Shaw]" she would impose a "guideline" that "if he has been sitting for an hour, he should be allowed [15 minutes] to stand, walk around, change his position." According to Dr. Smith-Jeffries, if Shaw were not given the chance to stand or change positions every hour, "by the end of the day he would just have back aggravation to the extent that he would not be able to perform the job effectively."
On February 8, 1999, the Retirement Board ruled that Shaw's condition disabled him "for useful and efficient service" with the MPD, that he had incurred his back injury in the performance of duty, and that he should receive a retirement annuity pursuant to D.C. Code § 4-616 (1981) (re-codified as D.C. Code § 5-710 (2001 & 2006 Supp.)). The Board used the following standard formula to calculate Shaw's annuity:
(A-B)/A = C, and C x D = E, where
A = the current salary of the position last held by the service member;
B = the average salary of the positions the member has the capacity to occupy; C = the percentage of disability;
D = 70% of the member's basic salary; and
E = the amount of the annuity (provided that the amount of the annuity awarded shall not be less than 40% of the member's basic salary where (as here) the member ...