dissenting:
I respectfully dissent because, on this record, binding precedent mandates reversal and remand to the Board.
I.
This case concerns a firefighter who was injured in the line of duty and, as a result, was disabled from returning to a job that requires physical fitness to perform all assignable firefighting duties. I agree with my colleagues’ conclusion that a firefighter in this situation is not entitled to disability retirement under D.C.Code 1973, § 4-521(2) if there is available a permanent, lighter-duty job (which he or she is physically capable of performing) in the “grade or class of position last occupied.” Id. Disability to perform one’s last job before injury is not enough, in itself, to establish a § 4-527 claim.
But that only begins the inquiry. If, for example, there exists a light-duty category of jobs in the same grade or class from which the employee came, but there is no opening at the time the employee becomes disabled from performing a heavy-duty job, must the fire department create an appro*913priate lighter-duty job for that employee? If not, does the employee’s disability claim under § 4-527(1) simply depend on whether there happens to be a permanent light-duty opening at the time of injury? In any event, once an employee carries the burden of proving that he or she is disabled from performing the job held immediately prior to injury, who has the burden of coming forward with evidence as to the availability of an alternative, lighter-duty job in “the same grade or class of position last occupied”?
In the present case the fire department, its employees, the Police and Firemen’s Retirement and Relief Board and this court should face up to these questions. In failing to do so, the court not only permits a possible injustice to petitioner but also adds to considerable confusion already evident in our case law.
II.
In Coakley v. Police and Firemen’s Retirement and Relief Board, D.C.App., 370 A.2d 1345 (1977), we sustained the Board’s conclusion “that petitioner was not disabled for useful and efficient service in the grade or class of position he last occupied, namely, Private, Class I-A,” because “he could perform non-firefighting duties at the same or a higher class of position with no reduction in pay.” Id. at 1348. The availability of a nonfirefighting position apparently was not questioned, and, after the Board’s decision, Coakley “was reassigned to, and commenced, a non-firefighting job in the department while retaining the same salary and grade level.” Id. at 1346.
Three weeks later, in Jones v. Police and Firemen’s Retirement and Relief Board, D.C.App., 375 A.2d 1 (1977), we affirmed denial of disability retirement because, although petitioner could not physically perform all regular police assignments in her grade and class of job, she was able to perform less onerous tasks as a Community Relations Officer, the job she occupied immediately prior to her alleged disability. The premises of the opinion, as in Coakley, supra, were that Congress assumed there would be a variety of jobs in each grade and class, some of which were not physically taxing, and that a lighter-duty position remained available to the petitioner. Accordingly, we concluded that the police department could not, in effect, manufacture disability claims by requiring every police officer to be physically capable of performing every kind of police duty.1
In Coakley, therefore, we affirmed denial of disability retirement because petitioner could perform an available lighter-duty job in the same grade or class. In Jones, on the other hand, we affirmed denial of disability because petitioner could perform the very same, lighter-duty job last occupied (although she could not perform all jobs in the same grade and class). Thus, both cases applied the criterion prescribed in § 4-521(2) (disabled for service in the “same grade or class of position last occupied”), and both validly presupposed the availability of permanent, lighter-duty jobs that petitioners were capable of performing.2
*914More recently, however, in Torvik v. Police and Firemen’s Retirement and Relief Board, D.C.App., 406 A.2d 1264 (1979), we reversed the Board’s denial of disability retirement for a policeman who was disabled from performing his most recent, pre-injury job (as a Crossing Guard Coordinator). Contrary to the situations in Coakley and Jones, “there was no evidence that there was any position in the police department that the petitioner was fully capable of performing.” Torvik, supra at 1266. Therefore, although disability to perform the last pre-injury job will not necessarily entitle an employee to § 4-527 retirement, Torvik stands for the proposition that such retirement must be granted if the availability of a permanent, light-duty alternative is not established.
III.
My problem with the majority opinion is its implicit assumptions that a light-duty job in the same grade or class is, in fact, available and that petitioner is medically fit to perform it. Neither assumption is warranted here. Although there was a fleeting reference at the hearing to an opening for a full-time sergeant in the Apparatus Division, the availability of the job was not confirmed, and, in any event, the duties of the job were not described at the hearing. Thus, the medical witnesses did not have an opportunity to testify as to petitioner’s physical ability to handle that job or any other light-duty assignment assuredly available to him.3 In fact, the record suggests, to the contrary, that a permanent light-duty alternative will not be made available. A memorandum of June 15, 1978 to the Board from the Fire Chief, Jefferson W. Lewis, states in part:
There are certain, but limited, full duty assignments to which we can assign uniformed personnel who possess a suitable talent; but we do not, and cannot use those spots to shelter a medically unfit member. When it is quite evident that one of our men cannot be rehabilitated to full duty fire fighting, then we do a disservice to the taxpayer if we continue that man on our roles.
* * * * * *
The Fire Department’s official position is that this department cannot employ anyone on a permanent basis who is medically prohibited from performing fire fighting duties.
Reversal, therefore, is clearly required under Torvik, supra. I do not understand how *915the majority can affirm denial of disability retirement in the absence of proof of a light-duty alternative.
The question then becomes, what should happen on remand? When we held in Torvik, supra at 1266, that “the Board was in error in denying retirement to petitioner” and “remanded for further proceedings consistent with this opinion,” we did not deal with the question whether the Board must grant disability retirement or, instead, was free to take additional evidence to resolve whether a light-duty alternative was, in fact, available. We did not, however, foreclose such proceedings.4 In any event, I do not believe we responsibly could reverse and remand this case — and perhaps should not have done so in Torvik, supra —without informing the Board that, once the petitioner has demonstrated a disability from performing his last job, the Board should obtain the evidence necessary to resolve whether one or more categories of permanent light-duty work exists in the same grade or class as petitioner’s last job and, if so, whether an opening exists (or must be made available). As to these light-duty determinations, therefore, the government should bear the burden of refining the standard and coming forward with the evidence, failing which the petitioner’s claim to § 4-527 disability retirement will be established. If the government, however, does demonstrate the existence and availability of a light-duty alternative, then the burden of coming forward with evidence of disability to perform that less onerous job shifts back to the petitioner.5
My central concern, therefore, is this: an employee disabled from performing his or her last job should not have to risk getting caught in a policy dispute between the Fire Chief and the Board as to whether permanent light-duty is a realistic alternative to disability retirement. The Board has to determine how the fire department’s willingness — or unwillingness — to make permanent light-duty work available is to be figured into these cases. Surely we cannot tolerate a situation in which a firefighter disabled from regular duty is denied disability pay on the assumption that light duty of the same grade or class is available, only to find that the department provides no such light-duty alternative. I am afraid, however, that this court’s disposition leaves that possibility very much alive. Accordingly, I would reverse the denial of disability retirement and remand the case for thorough consideration of the implications generally, and as applied to this case, of the court’s basic holding (with which I agree), apropos of Coakley, supra: that disability under D.C.Code 1973, § 4-521(2) is determined by reference to petitioner’s ability to perform an available job in the “grade or class of position last occupied,” not merely his last job as a regular firefighter.
. We said in Jones, supra at 6:
It was plainly the premise of Congress in framing the disability provisions of this [Police and Firemen’s Retirement and Disability] Act that not all police positions were interchangeable and that many officers were permanently assigned to such non-physically taxing jobs as precinct clerical work, investigating and interviewing, or maintaining and analyzing arrest and fingerprint records. Any disability plan which would grant pensions to persons for injuries not diminishing their ability to continue to do such work would not only be totally unrelated to job qualifications but would be a tremendous waste of public funds.
. The following statements in Jones, supra, have caused confusion in light of Coakley, supra :
The statute under which petitioner has invoked a disability claim does not require the Board to determine whether she is physically fit to perform every conceivable kind of police assignment, but merely whether she is still capable of handling the duties required by the kind of position to which she was regularly assigned prior to her injury. Congress was most explicit in defining the words ‘disabled’ or ‘disability’ in terms of the particular police job last held by the disability claimant. See D.C.Code 1973, § 4-521(2). [Id. at 5].
*914* * * * * *
Congress . . . limitfed] disability pay to officers no longer capable of performing their old jobs. [Id. at 6.]
In Jones, we were considering a claim by an employee who was physically capable of performing her last “regular duty” job (as a Community Relations Officer) prior to injury but who could not physically perform other “regular duty” jobs. Because police department rules required her physical readiness for all “regular duty,” she claimed disability; she was unable to accept a shift, as needed, to other regular duty assignments. As indicated at note 1 supra, we concluded that Congress did not intend for the police department to impose a readiness requirement on all assignments, such that practically any disability would disqualify an employee from continued service. It was in this context that we said Congress intended no employee to receive § 4-527 disability retirement if he or she “is still capable of handling the duties required by the kind of position to which she was regularly assigned prior to her injury.” Id. We were saying, in effect, that § 4 -527 retirement was not available if one could continue to perform a relatively light-duty job in a grade or class that generally has more onerous physical requirements. We were not holding the converse; that one whose last police job was physically demanding is entitled to disability retirement if he or she is unable to perform that job, despite availability of a less onerous one in the same grade or class. That interpretation would be contrary to Coakley, supra, decided three weeks earlier.
. At the Board’s hearing, a doctor testified that petitioner could do office work. This testimony, however, was wholly unrelated to an available job. Petitioner actually did perform a light-duty job investigating fire department applicants for six and one-half weeks before requesting disability retirement. He testified that he could handle the job physically, although he sometimes experienced pain from weather conditions, standing too long, or climbing stairs. Apparently, there was not enough investigation work available to warrant petitioner’s continued assignment to that job. Compare Jones, supra at 3-4 (petitioner had actually held a permanent light-duty job prior to injury and her physician’s report indicated she was able to perform such desk work after the injury).
. Ordinarily, of course, after remand, the Board has the option to take additional testimony; usually this court’s role after finding agency error is simply to remand for the agency to take whatever action it deems appropriate consistent with our ruling — and with applicable principles of finality. See Jameson's Liquors, Inc. v. D. C. Alcoholic Beverage Control Bd., D.C.App., 384 A.2d 412, 420-21 (1978). In Torvik, however, by stressing language from Jones, see note 2 supra, to the effect that petitioner was entitled to disability retirement because he was not capable of performing his last job, see Torvik, supra at 1266, we may have implied that little, if any, room was left for further evidentiary proceedings. Coakley, supra, however, suggests the potential usefulness of additional proceedings to evaluate whether a light-duty job alternative in the same grade or class was available.
. Under D.C.Code 1978 Supp., § 1-1509(b), “the proponent of a rule or order shall have the burden of proof.” Although the petitioner, therefore, has the ultimate burden to prove § 4-521(2) disability, this is not to say he or she must carry the burden of providing evidence of non-existence of a light-duty alternative. Consistent with § 1-1509(b), once a petitioner has demonstrated that he or she cannot physically perform the last job prior to injury, the burden of coming forward with evidence as to a light-duty alternative can be placed on the government, which is the party in a better position to marshal such evidence. The ultimate burden of persuasion, of course, remains on the petitioner.