Adgerson v. Police & Firefighters' Retirement & Relief Board

73 A.3d 985, 2013 WL 4106678, 2013 D.C. App. LEXIS 498
CourtDistrict of Columbia Court of Appeals
DecidedAugust 15, 2013
DocketNo. 12-AA-357
StatusPublished
Cited by10 cases

This text of 73 A.3d 985 (Adgerson v. Police & Firefighters' Retirement & Relief Board) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Adgerson v. Police & Firefighters' Retirement & Relief Board, 73 A.3d 985, 2013 WL 4106678, 2013 D.C. App. LEXIS 498 (D.C. 2013).

Opinion

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.

I. Background

After a car accident in early 2009, Officer Adgerson underwent three-level cervical spinal fusion surgery1 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,2 while Adgerson opposed the recommenda[989]*989tion, citing his recovery. While acknowledging the officer’s apparent progress since her February evaluation, Dr. Malo-mo 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 officers3 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.”4

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. Malo-mo 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 [990]*990evaluations, 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:

[Tjhere 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 to his head and spine as a result of performing high-speed maneuvers such as would be required in a high-speed chase.

Although Board members found that Adg-erson had no residual symptoms after his surgery and that he had a full range of motion and physical abilities, they identified “the sole issue [as] whether there is a safety risk to the Member, his partner, or the public.”

The Board acknowledged Dr. Ergener’s opinion but said it was not an “unequivocal recommendation” that Officer Adgerson could perform the full range of duties required of an officer. Meanwhile, the Board wrote that as Dr. Malomo was board-certified in occupational medicine and familiar with the severity and types of injuries that members sustain, it “afford [ed] great weight to her concerns about the risk to the public if an officer is allowed to serve with a three-level cervical fusion.” The Board thus found that Adg-erson was “unable to perform the full duties of a member of his department.”

II. Analysis

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Bluebook (online)
73 A.3d 985, 2013 WL 4106678, 2013 D.C. App. LEXIS 498, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adgerson-v-police-firefighters-retirement-relief-board-dc-2013.