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

ROGERS, Associate Judge,

dissenting.

Martin seeks to retire on full disability,1 and his burden is great. In reviewing the Board’s decision for substantial evidence, this court must look to the entire record that was before the Board and, if the court finds there is substantial evidence to support the Board’s findings, it must affirm regardless of its disagreement with the decision or its view of contrary evidence.2 Because there is substantial evidence to support the Board’s finding that Martin has failed to prove he is medically eligible for such retirement, and because there was no evidence from Martin that the police department had failed to fulfill its responsibilities, Wells v. District of Columbia Police & Firefighters’ Retirement and Relief Board, 459 A.2d 136, 138-39 (D.C.1983) (en banc), neither this court nor the Board has grounds for straying from the definition of § 4-607(2), set forth in Wells, that “an officer is ‘disabled’ if he is unable to perform work in any position at the same salary level as he previously earned.” Id. Accordingly, I respectfully dissent.

A.

First, the record demonstrates there was substantial evidence to support the Board’s finding that Martin was not eligible for disability retirement under D.C.Code § 4-616 (1981).3 Martin is currently appealing from the Board’s third denial of his request for retirement on disability as a result of the injury to his left hand in 1979. The Report of the Police and Firefighters’ Retirement and Relief Board states that Martin’s first request was denied in 1982, and affirmed by this court on appeal, and his second request was denied in 1984 without a hearing since he presented no new basis for retirement, relying on the same diagnostic and recommendations as before. The Report reviews the occasion of Martin’s 1979 injury, his initial surgery and the *116reports that followed by Dr. Frey and the Board of Police and Fire Surgeons, the latter concluding that Martin suffered a ten percent disability and recommending that he was permanently disabled for full duty. The report also summarizes the 1982 and 1984 proceedings, and refers specifically to the Board’s findings and conclusions in 1982, and states in regard to the present disability request, that in 1985 the Report of the Board of Police and Fire Surgeons repeats its prior diagnosis of Martin, but viewed his percentage of disability as twenty percent.

With knowledge of this record and history, the Board’s findings regarding Martin’s third disability retirement request focused on Dr. Frey’s testimony and his “demonstration at the hearing to negate Dr. Joseph C. Linehan’s characterization ... giving the impression to a reader (one without benefit to [sic] Dr. Frey’s explanation and demonstration of the useful manipulation of the hand, wrist and fingers) that the hand is like a small shovel or ladle, for dipping out things,” and on the fact that the 1985 Internal Affairs Division (IAD) Report indicated “no change” in Martin’s non-departmental activities “in which the left hand is used unrestrictedly and without apparent pain.”

Viewed in this context, the significance of Martin’s testimony at the hearing is clear. He did not deny that he is able to perform the limited duty tasks assigned to him by the police department. He testified that he could write and had processed investigative reports, interviewed applicants for vacancies, conducted roll calls, handled confidential funds, kept track of cruisers, signed leave slips, and was able to participate in a police investigation. Regarding the injury which was the basis for his claim of disability, he did not dispute the evidence that he could use his left hand for some purposes. He also admitted that he could perform most of the activities described in the IAD report, and, at most, took issue only with insignificant details.4 In other words, although the Board of Surgeon’s report stated that Martin’s disability had increased, Martin did not testify that this resulted in his inability to do the job he was assigned.

The significance of the medical testimony supporting the Board’s finding that Martin was able to perform limited-duty assignments is clear for similar reasons. The Board could reasonably view Dr. Frey as most knowledgeable of Martin’s injury, and rely on his testimony regarding the precise nature of Martin’s injury to his left hand 5 and his consequent, present capabilities and limitations as well as on Dr. Frey’s final report in concluding that Martin could perform his limited-duty assignments. Martin at no time contended that any of the physicians on whose opinions the Board relied were incompetent to render an opinion on his disability or that a physician’s expression of opinion, in the absence of having conducted a personal examination of Martin, was contrary to accepted standards of medical practice. See FED.R.EVID. 703. Nor did he make an effort to subpoena any of the doctors. Also, for reasons set forth below, the Board was entitled to rely on the summary medical report, as well as the IAD report, in reaching its decision.

Moreover, Martin did not establish the uselessness of his assigned limited duty services.6 His concerns before the Board were the extent of his disability and his *117dissatisfaction with what he considered to be a low-status of limited duty assignments but he did not specifically challenge the actual utility to the department of his assignments. Rather, Martin’s attorney suggested, during closing argument to the Board, that Martin averaged only one hour and nineteen minutes of work per week. Martin had in fact testified that, “I’m sure I’ve done other things,” and that he had never actually added up all of the time he had spent on light duly assignments. He admitted that it was not unusual for there to be substantial periods of inactivity during police department investigations and the climax of an investigation, and that in the investigation to which he had been assigned, “[s]o far there just hasn’t been a whole lot going on.” Since Martin failed to shift the burden of coming forward with evidence, the Board could properly defer7 to the police department’s determination that Martin’s limited duty job provides useful and efficient service. Wells, supra, 459 A.2d at 139.

B.

Second, the majority erroneously concludes that the Board was not entitled to rely on the summary report or the IAD report. The summary medical report was sufficiently reliable under the factors listed in Richardson v. Perales, 402 U.S. 389, 402-06, 91 S.Ct. 1420, 1427-29, 28 L.Ed.2d 842 (1971);8 see also Dowd, supra note 2, 485 A.2d at 215, because it was prepared by a panel of competent physicians and based on, and accompanied by, the reports of the examining physicians. The fact that the summary report was prepared by physicians serves to enhance reliability and is thus a factor in favor of admissibility.9 The use of a one paragraph conclusion by the panel does not, of itself, undermine the validity of their findings. The majority also understates, contrary to Perales, supra, 402 U.S. at 404-05, 91 S.Ct. at 1428-29,10 the importance of Martin’s ability to subpoena witnesses as a means of cross-examining the preparing physicians and assailing the report.

The majority's reasoning regarding the IAD report is also unpersuasive. Martin had every opportunity to challenge the veracity of the statements contained in the report, but he responded primarily by ad*118mitting most of the allegations. Thus having given up his opportunity to cross-examine the [contributors], he can scarcely be heard to say that the Board’s findings rested on hearsay.” Dowd, supra note 2, 485 A.2d at 216. Moreover, in view of Martin’s testimony and other eyewitness testimony, any error by the Board in this regard was harmless. Arthur v. District of Columbia Nurses’ Examining Board, 459 A.2d 141, 146 (D.C.1983).11

. Based on twenty years of service, Martin is eligible for optional retirement under D.C.Code section 4-618. Hence, one basis of Judge Fer-ren’s reasoning for rejecting the government’s arguments is based on an incorrect assumption. See opinion of Judge Ferren supra, at 106.

. D.C.Code § l-1510(a)(3)(E) (1981); see, e.g., Dowd v. District of Columbia Police and Firefighter’s Retirement and Relief Board, 485 A.2d 212 (D.C.1984); Seabolt v. District of Columbia Police and Firemen’s Retirement and Relief Board, 413 A.2d 908 (D.C.1980); Liberty v. District of Columbia Police & Firemen’s Retirement and Relief Board, 410 A.2d 191 (D.C.1979).

. The procedure by which a petitioner can meet his burden to establish that he is unable to perform "useful and efficient service” in any job in his category is set forth in Wells, supra, 459 A.2d at 138-39; see also Szego v. District of Columbia Firefighters’ Retirement and Relief Board, 528 A.2d 1233, 1235 (D.C.1987) ("capacity to perform the work assigned given the nature of the injury or disability").

.For example, he conceded that he has the manual dexterity necessary to cut grass. The majority states, supra at 112, that the internal affairs report was unclear about the meaning of “cutting grass." Read in context, however, the statement was abundantly clear. The report stated that the witnesses did not want to sign their statements for fear that Martin would “mow” their lawns. In addition, there was eyewitness testimony that Martin ably handled a microphone during a musical performance, removing it from its stand and tossing it back and forth between his hands, and that he had also squeezed a woman’s hand.

. Because Martin was right-handed and the injury was to his left hand, medical evidence of his ability to use or not use his left hand as a scoop is, contrary to Judge Ferren’s suggestion, see supra at 110, of diminished significance. See also id. at 105. The Board relied on Dr. Frey’s testimony to establish that the hand was useful as more than a scoop.

. The legislative history of the phrase "useful and efficient service" is, for purposes of this appeal, unhelpful. The phrase first appeared when Congress in 1957 amended the Policemen and Firemen's Retirement and Disability Act to *117grant benefits similar to those in the civil service retirement system. See H.R.Rep. No. 530, S.Rep. 699, 103 Cong.Rec. 14323-340 (debates) concerning H.R. 6517, enacted as, Pub.L. No. 85-157, 71 Stat. 391, 85th Cong., 2d Sess. (Aug. 21, 1957). Apparently, the "useful and efficient service" language has been in the Civil Service Retirement Act since its adoption in 1920 without relevant legislative commentary. See congressional reports from 1920 (Pub.L. No. 66-215; H.R.Rep. Nos. 813, 942, S.Rep. Nos. 99, 270, 66th Cong., 2d Sess.), 1926 (Pub.L. No. 69-552; H.R.Rep. Nos. 768, 1099, S.Rep. No. 604, 69th Cong., 2d Sess.), and 1930 (Pub.L. No. 71-279; H.R.Rep. Nos. 784, 1549, S.Rep. No. 16, 71st Cong., 2d Sess.). Federal decisions interpreting the phrase comment that it is sufficient that the employee be unable "to perform useful and efficient service in the specific position which he occupies at the time application is made for his retirement,” Cerrano v. Fleishman, 339 F.2d 929, 931 (2d Cir.1964), cert. denied, 382 U.S. 855, 86 S.Ct. 106, 15 L.Ed.2d 93 (1965), but the government, as opposed to the employee or the Civil Service Commission, can introduce evidence to satisfy its burden of proof that a suitable alternative position exists. Parodi v. Merit Systems Protection Board, 690 F.2d 731, 739 (9th Cir.1982).

. It remains unclear to me what Judge Ferren would have the Board determine with respect to the fiscal prudence of a light duty assignment. See, e.g., D.C.Code § 1-725 (1986 Supp.).

. Perales only involved issues of substantiality (admissibility was conceded on appeal) and, because it affirmed that medical reports can constitute substantial evidence, the decision cannot serve as a precedent for denying the admissibility of those reports. A personal examination of the patient was only one of the factors identified by the Court as relevant in determining the reliability of hearsay evidence. Id. at 402-06, 91 S.Ct. at 1427-29.

. "Courts have recognized the reliability and probative worth of written medical reports even in formal trials and, while acknowledging their hearsay character, have admitted them as an exception to the hearsay rule." Perales, supra, 402 U.S. at 405, 91 S.Ct. at 1429.

. In Perales, the court commented that because the complainant did not take advantage of his opportunity to subpoena the reporting physicians, he "is to be precluded from now complaining that he was denied the rights of confrontation and cross-examination.” 402 U.S. at 405, 91 S.Ct. at 1429.

. I agree with the majority that the Board unreasonably denied admission of the draft medical report prepared by Dr. Mitchell, but I conclude that since Dr. Mitchell testified in support of Martin’s disability, the error was harmless.