Eric A. Adgerson, Petitioner,
Police & Firefighters' Retirement and Relief Board, Respondent.
Argued April 9, 2013
On Petition for Review of an Order of the District of Columbia Police and Firefighters' Retirement and Relief Board PD-1066-11.
Anthony M. Conti, with whom Daniel J. McCartin was on the brief, for appellant.
Richard S. Love, Senior Assistant Attorney General, with whom Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Donna M. Murkasky, Deputy Solicitor General, were on the brief, for appellee.
Before Oberly and Beckwith, Associate Judges, and Ferren, Senior Judge.
BECKWITH, ASSOCIATE JUDGE:
Petitioner Eric Adgerson, a Metropolitan Police Department officer, fully recovered from surgery fusing four of the seven vertebrae in his neck. Yet he was forced to retire from the department with a disability annuity because of what the Police and Firefighters' Retirement and Relief Board deemed an "unacceptable risk"that a blow to his newly inflexible neck while on duty would paralyze him and endanger the public.
His petition asks us to find that the Board erred in determining that his post-surgical condition permanently disabled him from duty as a police officer despite a Police and Fire Clinic doctor's testimony that he could do all the physical tasks required in his work. We conclude that the Board's decision—factoring this future risk to Officer Adgerson and the public into its determination whether he could perform the full range of duties of a member of the department—involved a reasonable interpretation of an ambiguous statutory scheme and was based on substantial evidence in the record. We thus affirm the Board's determination on this issue as well as the others raised in Adgerson's petition.
After a car accident in early 2009, Officer Adgerson underwent three-level cervical spinal fusion surgery in September 2010 and began a slow road to recovery from pain and limited mobility in his neck. In addition to seeing his own surgeon, Adgerson visited the Police and Fire Clinic, where the clinic's medical director, Dr. Olusola Malomo, examined him and his progress. Dr. Malomo recommended in February 2011 that Adgerson be placed on disability retirement because, she said, he was "unable to perform the full duties"of an MPD officer "due to the nature of his surgery and permanent physical activity restrictions imposed by his surgeon which prohibit repetitive neck bending, overhead activities, and patrol duties. "By the time of his Retirement Board hearing more than ten months later, however, Adgerson no longer complained of pain and another clinic examiner had determined that he had good range of motion in his neck.
At the Board hearing to assess whether Officer Adgerson could return to full duty, Dr. Malomo repeated her recommendation that he be put on disability retirement,  while Adgerson opposed the recommendation, citing his recovery. While acknowledging the officer's apparent progress since her February evaluation, Dr. Malomo said that because of the fused bones in his neck, he could not perform "[a]ny duties that will . . . endanger [him because of a] physical altercation with a suspect, with a citizen, working with prisoners, on patrol. . . . I think it would not be safe for him to perform those duties. "The doctor told the Board that "the fact that there is a triple fusion" did not negatively affect "the regular duty that he is required to perform as a police officer, "but she explained in detail how the surgery had made his neck less able to safely bend and absorb impact. Because a majority of the vertebrae in his neck could no longer move independently, she said, whiplash from a car crash or an attack by a suspect resisting arrest could seriously injure his spine or paralyze him.
As the Board inquired into her recommendation, Dr. Malomo testified that triple fusion is "more extensive surgery compared to what most people have" and that sports medicine doctors, citing studies of athletes, recommend that people with three-level fusions stop participating in contact sports. Though she could not put a percentage to the risk Officer Adgerson would face if he returned to duty, the doctor said that neck injury is "one of the more common injuries "to police officers and that "[a]ny altercation that involves the neck would lead to harm" to Adgerson. Dr. Malomo said her decision that the officer could not safely return to duty was based on "the severity of the outcome. "She would "not be as concerned, "she said, "[i]f it was just a minor . . . neck pain that they would suffer or minor strain as a result . . . but if it would lead to paralysis . . . that's why.”
Officer Adgerson insisted that he could return to full duty, and he said his doctor agreed. He told the Board that his pain was gone, and that he could fully turn his neck, drive without restrictions, run, jump, and do repairs around the house. He could, he said, "perform all the duties of a police officer." The surgeon who performed his surgery, Dr. John Ergener, did not testify at the hearing, but the evidence admitted included a memo Dr. Ergener wrote after speaking with Dr. Malomo, in which he said, "I explained that a year out from surgery there are no significant symptoms about the neck or arms . . . [and] I felt a return to work with a trial of full duty is justified.”
Dr. Ergener's opinion was not unequivocal, however. In the memo of his conversation with Dr. Malomo, he said he noted the "concern about [Officer Adgerson's] ability to do full duty" and told Dr. Malomo he strongly suggested that Adgerson have an independent medical examination. Dr. Malomo added, in her Board testimony, that Dr. Ergener told her the fusion was strong but that he could not comment on the segments above and below the metal plate, the locations that after surgery would receive the brunt of any impact to the neck and head. Dr. Ergener, she said, "wasn't very familiar with return to work evaluations, and said . . . we should get an independent evaluation.”
The Board found that Officer Adgerson was "incapacitated from further duty with the Department by reason of a disability not incurred in the performance of duty, " and ordered that he be retired on an annuity calculated according to statute. In its order, the Board wrote:
[T]here is substantial evidence in the record that the Member (Adgerson) cannot safely perform the duties of a MPD member as a result of his three-level spinal fusion. The Board is convinced by the testimony of Dr. Malomo that the inflexibility of the fused vertebrae in the Member's cervical spine would result in unacceptable risk to the Member and to the public in the event he was to suffer blows to the head and neck while subduing a suspect or suffer injury ...