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

MACK, Associate Judge,

concurring in part and concurring in the remand:

I join Judge Ferren’s analysis of the inadmissibility of the Board of Surgeons Summary Medical Report, the limited pro-bativeness of the Internal Affairs Report, and the admissibility of Mitchell’s summary medical report. I concur in the disposition provided for in Part IV with respect to the remand to the extent that the Board should address the following issues and make specific findings and conclusions based on an analysis of the evidence: (1) whether Martin is capable of performing his limited duty position in light of his disability, and (2) whether Martin’s service is “useful and efficient” in light of his work and department needs. My call for a remand is based on the inadequacy of the findings of fact and conclusions of law which accompany the Board’s order.

As this court has recently noted:

Eligibility for disability retirement requires three showings: (1) disability (2) from useful and efficient service (3) in the grade or class of position last occupied. D.C.Code § 4-607(2) (1981). Implicit in those three requirements is a fourth: capacity to perform the work assigned given the nature of the injury or disability.

*114Szego v. Police and Firefighters’ Retirement and Relief Board, 528 A.2d 1233, 1235 (D.C.1987). The Board is responsible for making specific findings as to each of these requirements. D.C.Code § l-1509(e) (1981); Citizens Ass’n of Georgetown, Inc. v. District of Columbia Zoning Commission, 402 A.2d 36, 42 (D.C.1979). In the decision appealed from, the Board analyzed only the evidence of the extent of petitioner’s disability. Despite the fact that petitioner presented evidence contesting the usefulness and efficiency of his job and demonstrating substantial pain in his left hand and wrist, the Board made no findings with respect to “usefulness and efficiency,” nor did it analyze the impact of Martin’s pain on his ability to perform the actual tasks he was assigned. Since the plain language of the statute requires that the service be “useful and efficient,” and since our caselaw reasonably requires that a claimant be capable of performing the work, the Board’s failure to address and resolve these issues was erroneous as a matter of law. D.C.Code § l-1510(a)(3)(D) (1981).

Indeed, the Board delegated to the Board of Surgeons and the police department the full responsibility for determining whether Martin was physically capable of performing his limited duty position and whether those duties provided useful and efficient service. After summarizing the evidence of the extent of Martin’s disability, the Board concluded:

[T]he Board is persuaded by the report of the Board of Police and Fire Surgeons, dated August 12, 1985, and the Investigative Report of the Internal Affairs Division, D.C. Metropolitan Police Department, advising that it was the decision of the Board of Police and Fire Surgeons that petitioner can perform limited duty. Thus, he was returned to limited duty effective August 12, 1985. Therefore, the Board concludes that petitioner is able to perform useful and efficient service with the D.C. Metropolitan Police Department.

Exclusive reliance on the determinations of the police department and the Board of Surgeons that Martin was capable of performing limited duty was improper for a number of reasons. First, the Board of Surgeons Report was so unreliable as to be inadmissible. Even apart from that, however, since the Board of Surgeons and the department made their reports before Martin actually took limited duty, their conclusion that he could perform limited duty was made without knowledge of the actual tasks he would be required to perform. After their reports, Martin took limited duty and later re-petitioned for disability retirement. See Wells v. Police and Firefighters’ Retirement and Relief Board, 459 A.2d 136, 139 n. 3 (D.C.1983) (en banc) (“[t]he presumption that a suitable light duty position exists can be rebutted either at the original hearing, or later if no position that the injured officer can perform is available in the grade or class he last occupied”) (emphasis added). The Board’s exclusive reliance, therefore, on Martin’s potential capacity to perform limited duty, as reflected in the reports prepared before he took limited duty, was improper. At a minimum, the Board should have described the actual duties Martin was required to perform and made an independent determination of his capacity to perform those duties in light of his disability.

By like reasoning, the Board’s conclusory finding that Martin’s job was “useful and efficient” was unaccompanied by any analysis of the conflicting evidence. Since Martin had actually taken a limited duty position, a finding of its usefulness and efficiency should have been accompanied by an analysis of the tasks Martin performed and the department’s need for those services.

It must be remembered that it is the Board, not the police department nor the Board of Surgeons, which must determine whether the requirements for disability retirement have been met. In my view, it would be unwise to allow the Board to neglect the normal requirement of specific findings by permitting it to conclusorily state, as it did, that there was “no disability for useful and efficient service.” It is not this court’s function to review all the *115evidence before the Board and “fill in” the numerous blanks left by its decision.1

I am not suggesting that, on remand, the Board will be unable to conclude that Martin’s job is useful and efficient and that Martin is capable of performing it. I am only suggesting that the Board must analyze the evidence presented and make specific findings and conclusions regarding each of the contested statutory requirements. My analysis of this case and its procedural defects in no way affronts the factually and procedurally distinct circumstances faced by this court in Wells, supra, where the claimant refused the limited duty position offered him.

.The accuracy of the facts relied upon by the dissent to conclude both that Martin was physically capable of performing his assigned tasks and that his service was useful and efficient is unquestioned, post at 115-117, but the vast majority of those facts were never mentioned nor relied upon in the Board’s decision. Moreover, conflicting facts were brought forth. It seems to me that the Board should resolve that conflicting evidence.

The dissent also suggests that under the circumstances of this case, "the Board could properly defer to the police department’s determination that Martin’s limited duty job provides useful and efficient service.” Post at 117 (footnote omitted). Clearly, the dissent is correct in implying that the department’s assessment of the usefulness and efficiency of the service it offers a partially disabled officer is entitled to great deference. In this case, however, the Board did not simply "defer." Rather, without regard to Martin’s proffer, the Board permitted the department to make the statutory determination that Martin’s job was useful and efficient.