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

February 19, 2009


On Petitionfor Review of a Decision and Order of the District of Columbia Police and Firefighters' Retirement and Relief Board (PD 113-05).

The opinion of the court was delivered by: Blackburne-rigsby, Associate Judge

Argued December 11, 2007

Before FISHER and BLACKBURNE-RIGSBY, Associate Judges, and BELSON, Senior Judge.

Petitioner Chad A. Leach (hereinafter "FF Leach"), a firefighter injured when he responded to the Pentagon after the September 11, 2001 attack, seeks review of a decision of the District of Columbia Police and Firefighters' Retirement and Relief Board ("Retirement Board" or "Board"). The Board retired him based on a medical diagnosis of chronic obstructive pulmonary disease due to smoke inhalation and psychological disabilities of Chronic Post Traumatic Stress Disorder and Chronic Major Depressive Disorder. FF Leach contends that the District of Columbia ("the District") failed to rebut his prima facie showing that his back injury, which required significant surgery and the fusion of two vertebrae, occurred on September 11th in the performance of his duty. He also argues that his functional impairment and percentage of disability should be no less than total disability because the District failed to establish, in light of his physical and mental disabilities and limited vocational skills, that he was capable of being gainfully employed. We conclude that the Board did not sufficiently articulate the factual conclusions upon which it based its order, and thus we cannot determine from this record whether the order is supported by substantial evidence. We therefore reverse the Retirement Board's Order and remand the case for further proceedings in accordance with this opinion.


A. Factual Background

FF Leach retired from the District of Columbia Fire and Emergency Medical Services Department on June 30, 2006, after five and one half years of service. When the plane struck the Pentagon on September 11, 2001, seeing the events unfold on television, FF Leach left his family in Virginia and reported for work before the emergency call-in of all Fire Department personnel was issued by the department. He was off duty, and at that time he had less than a year of experience with the fire department. FF Leach was assigned to a "search and rescue" mission in the burned out section of the Pentagon. While searching for potential living victims in the deepest ring of offices, FF Leach was exposed to the gruesome sights and stenches of incinerated corpses.

While inside the Pentagon, upon order from his lieutenant,*fn1 FF Leach attempted to smash some windows with an axe to ventilate the area, but the windows would not break because they were constructed from bulletproof glass. FF Leach testified that he remembered hearing and feeling a "pop" in his back after the third strike on the glass, but he did not say anything at the time because he did not want to have to come out of the Pentagon and leave others in there. He also remembered gasping for air and when his temperature rose to 104 degrees, he lost consciousness and was evacuated to Alexandria Hospital for treatment of smoke inhalation injuries, hypoxemia and dehydration.

On September 14, 2001, FF Leach reported to the Police and Fire Clinic for an evaluation, where his complaints were fatigue, insomnia, and anorexia. He was referred to the Behavioral Services Department, where he began aggressive treatment for Acute Stress Disorder. FF Leach went back to full duty on March 1, 2002, but suffered a serious relapse by November 13, 2002, at which time he met all the criteria for Post Traumatic Stress Disorder. On December 29, 2002, FF Leach presented himself to Kaiser Permanente Urgent Care with symptoms consistent with sinusitis. The provider also noted that FF Leach had lower back pain that was aggravated by lifting an object the previous day at work.

On January 30, 2003, FF Leach was evaluated for his lower back pain, and an MRI of the lumbrosacral spine on February 1, 2003, revealed a herniated disc at L5-S1 without nerve root compression. He was placed on sick leave with his last full day of work being March 30, 2003. On April 23, 2003, FF Leach presented himself at the Police and Fire Clinic for persistent lower back pain and was referred to Steven Hughes, M.D., who diagnosed him with chronic lower back pain.

On August 20, 2003, an occupational disability evaluation was performed on FF Leach at Kaiser Permanente. Sylvia R. Medley, M.D., completed a comprehensive disability worker's compensation examination of FF Leach. She wrote:

[d]ue to the time sequence of the patient's clinical course, there is evidence to suggest a direct causation of his symptoms and clinical findings with his exposure to smoke and the physically strenuous nature of his job as a firefighter to his asthma and to his lower back pain with radiculopathy. His post traumatic syndrome appears to be related as well due to the unique circumstances of September 11, 2001.

Based upon his back pain, new onset asthma with severe partial obstructive lung disease, and post traumatic stress syndrome, which Dr. Medley appears to attribute to FF Leach's work as a firefighter on September 11th, she assigned an impairment rating of 26% of the whole person. Although he had physical therapy and epidural steroid injections for the pain, FF Leach underwent an anterior diskectomy with bone graft fusion on June 23, 2004, to repair his lower back.

On November 30, 2004, FF Leach was the subject of a disability evaluation at the Police and Fire Clinic by Michelle Smith-Jefferies, M.D. Dr. Smith-Jefferies recounted every visit FF Leach made to the Police and Fire Clinic and Kaiser Permanente. Under the heading "Impact of Medical Condition on Ability to Perform Functions of Job," Dr. SmithJefferies wrote, "Firefighter Leach injured his back while fighting a fire at the Pentagon September 11, 2001. He also suffered from smoke inhalation injury." She found that pulmonary function studies suggest severe smoke inhalation asthma, and FF Leach continued to experience shortness of breath, particularly with minor activities. She opined that he was unable to perform the full duties of a fire fighter and that his condition was "not the result of vicious habits or intemperance." Lastly, she concluded that he was permanently disabled with a functional impairment of 33%.

On December 24, 2004, C. Richard Filson, Ed.D., a licensed psychologist of the Police and Fire Clinic, prepared a retirement report recommending that FF Leach be considered for disability retirement. Dr. Filson diagnosed him with Chronic Post Traumatic Stress Disorder and Chronic Major Depressive Disorder, moderately severe without psychotic features. Dr. Filson found that the magnitude of these combined related traumas, as well as depressive symptoms completely disabled FF Leach from returning to fire fighting. Dr. Filson also noted that FF Leach did not exaggerate or aggrandize any of his symptoms.

On April 1, 2005, the National Rehabilitation Hospital issued a Labor Market Survey identifying five jobs that were determined to be suitable full-time employment for FF Leach. The report was signed by a vocational rehabilitation coordinator and vocational rehabilitation counselor. The survey stated that with vocational guidance, FF Leach might consider vocational options such as customer service, file clerk, or dispatcher. Out of the five jobs selected ...

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