Petition for Review of a Decision of the District of Columbia Police & Firefighters' Retirement & Relief Board (PD1129-06).
The opinion of the court was delivered by: Kramer, Associate Judge
Before KRAMER and FISHER, Associate Judges, and SCHWELB, Senior Judge.
Officer Darla Sandula was appointed to the Metropolitan Police Department on January 23, 2006. On January 11, 2007, the Police and Firefighters' Retirement and Relief Board ("Board") convened to consider disability retirement for Officer Sandula based on a diagnosis of asthma. The Board issued an order finding that Officer Sandula was "incapacitated from further duty by reason of a disability incurred other than in the performance of duty."*fn1 Officer Sandula filed a petition for reconsideration, which the Board denied. Officer Sandula now petitions for review of the Board's decision. We reverse and remand.
Officer Sandula was appointed to the Metropolitan Police Department (MPD) as a Lateral Recruit on January 23, 2006. Prior to joining the MPD, Officer Sandula had been a police officer in Detroit, Michigan, for two and a half years.
At her hearing before the Board, Officer Sandula testified that she was first diagnosed with asthma in 2001 when she sought treatment for an episode of hives and was evaluated by an allergist in Michigan who, in addition to treating her for the hives, decided to give her a pulmonary function test. The allergist then told Officer Sandula that she had asthma and gave her a prescription for an inhalant, Albuterol, to be taken as needed. Her first asthma-related incident did not occur until March 2003, when she was at the Detroit Police Academy. She was participating in an exercise drill requiring her to low-crawl through weeds, and she began to feel shortness of breath and felt the need to take two puffs off her inhaler. Because this incident was the first time she had ever felt asthma symptoms, she did not know how to use her inhaler; her physical training officer, who had asthma himself, had to show her. Although Officer Sandula had never used the inhaler, she had it with her that day because she was following the Detroit Police Department's policy that all officers with asthma carry an inhaler on their person at all times.
Having applied for employment with the MPD in 2005, Officer Sandula underwent a physical examination by Dr. Paul Matera at the Police and Fire Clinic ("PFC") on November 22, 2005. At that time she disclosed in her medical questionnaire that she had asthma, with her last episode occurring in 2003. Dr. Matera evaluated Officer Sandula and found her to be medically "qualified" for employment with the MPD. In his evaluation, Dr. Matera noted that Officer Sandula had a history of "seasonal allergy/asthma." She was subsequently found "medically eligible for employment with the Metropolitan Police Department" and appointed to the MPD on January 23, 2006.
Officer Sandula testified that the second time in her life that she felt asthmatic symptoms was on March 23, 2006, during physical training at the MPD's Police Academy. It was a chilly morning, she had not eaten breakfast, and she was suffering from the symptoms of a cold. Officer Sandula completed her run, but then felt like she needed to take two puffs of her inhaler. She did so, using the original inhaler unit that she had been prescribed in 2001, and then went back into the gym and started doing push ups and sit ups. When Officer Sandula rose from doing her push ups, she "felt like [she] saw stars" and "felt kind of lightheaded," so she "put herself down."Officer Sandula testified that she did not say she could not continue physical activities; rather, she was approached by her class instructor and, subsequently, sent to the clinic by that day's physical training supervisor.
Dr. Sherene Nagarajah of the PFC placed Officer Sandula on sick leave for the rest of the day due to "acute asthma" and directed her to see her primary care physician. Dr. Nagarajah also stated that Officer Sandula should return to work the next day on limited duty and return to the PFC in one week. Dr. Matera cleared Officer Sandula for full duty on June 7, 2006. After reviewing her Fitness For Duty exam, he concluded that she "may return to full duty immediately; no restrictions/accommodations are warranted. She should be considered fully responsible for her actions and held to the same standards of performance as any other Police Officer considered fit for duty." Nine days later, however, the head of the PFC, Dr. Martin Rosenthal, ordered Officer Sandula back to the PFC and put her on limited duty ("no running") due to "asthma, exercise induced in a 43 Y.O." and ordered her to return for a follow-up in one month. Dr. Rosenthal noted, however, that he did not examine the patient himself, writing "Examination: Not Performed" below Officer Sandula's vital statistics.Thereafter, on August 28, 2006 (apparently without ever physically evaluating Officer Sandula), Dr. Rosenthal determined that she was "incapable of performing the tasks of a police officer" and was "permanently disabled, with a functional impairment of 10%" because of her "use of chronic inhaled steroids and her need for pretreatment prior to exercise with a bronchodilator (Albuterol)."
In finding that Officer Sandula was disabled by her asthma, the Board credited the testimony of PFC Dr. Michelle Smith-Jefferies, whom the Board found was "board certified in internal medicine, which treats asthma" and "also board certified in occupational medicine." She explained that the PFC had no written policy specifying which conditions or diseases are not acceptable for officers and firefighters and that asthma does not automatically disqualify a patient. Rather, it is a "category B condition that you have to look at certain factors."
Dr. Smith-Jefferies testified that, although she had treated "numerous asthmatics" in various settings over twenty years of clinical practice, she had seen only approximately ten asthmatics in the course of her nearly ten years with the PFC.*fn2 Dr. Smith-Jefferies also testified that she had never treated or examined Officer Sandula and that her opinions were based on a review of the record.*fn3
That record included the reports of allergist Dr. Hafez Daneshvar; internist Dr. Glynnis Moody; Associate Professor of Medicine at Georgetown University Hospital's Division of Pulmonary, Critical Care and Sleep Medicine Division, Dr. Robin L. Gross; and Dr. Bruce Bochner and Dr. Jody Tversky of the Johns Hopkins Center for Asthma and Allergic Diseases - all of whom determined that Officer Sandula's asthma was mild, easily controlled, and not an impediment to working as a police officer.*fn4 Nonetheless, Dr. Smith-Jefferies considered Officer Sandula to have been "incapacitated" on March 23, 2006 because "she had to stop to take her inhaler." When the Board asked Dr. Smith-Jefferies to confirm that she considered the simple fact of stopping to take an inhaler as "be[ing] incapacitated," she replied, "I do. Could she have continued to run another, however long, you know - for another 10 minutes? There was not an indication that she could have continued on. She needed to stop to use her inhaler."
Dr. Bochner testified on behalf of Officer Sandula at the hearing. The Board found that Dr. Bochner "has training in internal medicine with board certification in internal medicine and in the subspecialty of allergy and immunology." While these statements are true, the Board failed to note (despite Officer Sandula's counsel alerting the Board that Dr. Bochner's curriculum vitae was in the record and despite Dr. Bochner's own summary of his qualifications for the Board at the beginning of his testimony) that, in addition to being a board certified allergist and immunologist, Dr. Bochner was also the Director in Chief of the Division of Allergy and Clinical Immunology at the Johns Hopkins Asthma and Allergy Center and a professor of medicine at the Johns Hopkins University School of Medicine; that he has published and lectured extensively;*fn5 that he had been on the American Board of Allergy and Immunology, which writes the Board certification exam questions for trainees; and that he was a member of the Board of Directors of the American Academy of Asthma, Allergy, and Immunology, "the premier allergy society in the U.S."*fn6 Likewise, the Board failed to note in its findings that Dr. Bochner had personally examined and diagnosed Officer Sandula - including administering a pulmonary test - before coming to his conclusions regarding her condition. Similarly, although the Board noted in its findings of fact that Drs. Daneshvar, Moody, and Gross had diagnosed Officer Sandula with ...