Breen v. District of Columbia Police & Firefighters Retirement & Relief Board
Breen v. District of Columbia Police & Firefighters Retirement & Relief Board
Opinion of the Court
The District of Columbia Police and Firefighters Retirement and Relief Board (“Board”) awarded petitioner an annuity
Petitioner James E. Breen was appointed to the District of Columbia Fire and Emergency Medical Department in 1980. At some time while working as a firefighter, petitioner sustained a back injury. In 1993, after finding that petitioner was permanently disabled with a twenty percent functional impairment, the Board of Police and Fire Surgeons (“Board of Surgeons”) referred petitioner’s case to the Board for possible disability retirement. After a hearing in 1994, the Board concluded that petitioner’s back injury permanently prevented him from continuing to work as a firefighter. The Board found petitioner was sixty-one percent disabled and thus entitled to an annuity of $15,834.38. Petitioner appealed this determination.
In Breen v. District of Columbia Police & Firefighters Retirement & Relief Bd., 659 A.2d 1257, 1259 (D.C. 1995), this court held that the Board’s determined annuity was not supported by substantial evidence. Specifically, we held that the Board had failed to include in the record “any of the physical, educational (or training), and experience requirements for any of the five job positions that the Board concluded petitioner had the capacity to occupy.” Id. (internal quotation marks omitted).
As a result of our holding in Breen, the Board held a second hearing to reconsider petitioner’s determined annuity. At the hearing, petitioner claimed that his disability rendered him incapable of any type of employment. However, petitioner’s medical expert, Dr. Michael Dennis, testified that ten percent of individuals in petitioner’s condition were capable of some kind of “sedentary to light” work. In fight of the testimony at the hearing, petitioner agreed to undergo an independent vocational assessment, aimed at evaluating his “functional capacity.” The vocational assessment concluded that petitioner was qualified for seventy-five possible positions, three of which were thoroughly analyzed in a report.
At a third hearing, the Board, with the aid of the vocational assessment, found that petitioner was capable of “sedentary and fight work.” This finding was supported by the testimony of Dr. Gangagee Balkissoon of the Board of Surgeons, who agreed with the vocational assessment. The Board concluded that petitioner was capable of performing various jobs within his physical limitations. Consequently, the Board took the average salary of five such jobs and determined that petitioner was fifty-three percent disabled and entitled to a $13,721.40 annuity.
Petitioner argues that the Board’s determined annuity is not supported by substantial evidence in the record because “[tjhere is simply no indication from the record, as the Relief Board believed, that these vacancies actually existed.” (Emphasis added.)
In reviewing the Board’s decision, we apply the familiar “substantial evidence” standard. Accordingly, “we will not disturb the agency’s decision if it flows rationally from the facts which are supported by substantial evidence in the record.” Oubre v. District of Columbia Dep’t of Employment Servs., 630 A.2d 699, 702 (D.C. 1993).
In calculating a claimant’s annuity, D.C.Code § 4-616(e)(2)(B) (1994) requires the Board to consider, inter alia, “factors or circumstances which may affect
Here, the Board relied on substantial record evidence in finding that petitioner was capable of performing certain types of jobs. This substantial evidence consisted of: (1) the testimony of petitioner’s own medical expert that ten percent of individuals in petitioner’s condition are able to perform some kind of fight work; (2) the independent vocational assessment which concluded that petitioner was functionally capable of performing any one of seventy-five jobs; and (3) the testimony of Dr. Balkissoon of the Board of Surgeons concurring with the independent vocational assessment. Therefore, the Board properly considered the average potential wages that petitioner had the capacity to earn in fight of his partial disability. Accordingly, the decision on review is
Affirmed.
. Pursuant to D.C.Code § 4-616(e)(2)(D) (1994), which establishes a minimum annuity of forty percent of the base salary at the time of the injury, petitioner’s annuity was increased to $14,833.
. The standard formula used by the Board in calculating a disabled employee’s annuity is
(A — B)/A = C x D = E, where:
A = current salary for the position held by petitioner (pre-injury)
B = average salary for positions disabled petitioner has the capacity to occupy
C = percentage of disability
D = 70% of the petitioner's basic salary
E = amount of annuity
Id. at 1258.
Reference
- Full Case Name
- James E. BREEN v. DISTRICT OF COLUMBIA POLICE AND FIREFIGHTERS RETIREMENT AND RELIEF BOARD
- Cited By
- 2 cases
- Status
- Published