Hyde v. Tobriner

• Decision Date: 27 February 1964
• Docket Number: No. 18059.,18059.
• Citation: 329 F.2d 879,117 US App. DC 311
• Parties: Joseph R. HYDE, Appellant, v. Walter N. TOBRINER et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

117 US App. DC 311, 329 F.2d 879 (1964)

Joseph R. HYDE, Appellant, v. Walter N. TOBRINER et al., Appellees.

No. 18059.

United States Court of Appeals District of Columbia Circuit.

Argued January 6, 1964.

Decided February 27, 1964.

Petition for Rehearing Denied April 15, 1964.

Messrs. Bernard Margolius and Carleton U. Edwards, II, Washington, D. C., with whom Mr. Ralph H. Deckelbaum, Washington, D. C., was on the brief, for appellant.

Mr. John R. Hess, Asst. Corporation Counsel for the District of Columbia, with whom Messrs. Chester H. Gray, Corporation Counsel, Milton D. Korman, Principal Asst. Corporation Counsel, and Hubert B. Pair, Asst. Corporation Counsel, were on the brief, for appellees.

Before EDGERTON, Senior Circuit Judge, and FAHY and BURGER, Circuit Judges.

Petition for Rehearing en Banc Denied April 15, 1964.

FAHY, Circuit Judge.

Appellant was retired for disability as a member of the Metropolitan Police Department. The retirement officials, ultimately the Commissioners of the District of Columbia, ruled, however, that his disability was due to a disease contracted other than in the performance of duty. This resulted in his retirement annuity being 40% of his basic salary as provided by Section 4-526 of the D.C.Code (1961 ed.) rather than 66 2/3%, as provided by Section 4-527. He sued in the District Court to require the Commissioners to retire him under the more favorable section. Under the Code, as it then read, the Commissioners contended that the more favorable provision did not apply unless the disability was attributable to an injury or a disease which was actually incurred or contracted in the performance of duty or was attributable to the aggravation of an injury or disease so incurred or contracted; that is, it did not apply to the aggravation of an injury or of a disease which was not incurred or contracted in the performance of duty. It was concluded that appellant's disability did not come within these provisions so construed.

On the basis of the administrative record the court, on cross-motions for summary judgment, granted judgment for the Commissioners. Pending his first appeal to this court Congress enacted Public Law 87-857, 76 Stat. 1133 (1962), adding to Section 4-527 an amendment as follows,

"In any case in which the proximate cause of an injury incurred or disease contracted by a member is doubtful, or is shown to be other than the performance of duty, and such injury or disease is shown to have been aggravated by the performance of duty to such an extent that the member is permanently disabled for the performance of duty, such disability shall be construed to have been incurred in the performance of duty. * * *"

On November 2, 1962, this court vacated the judgment of the District Court and remanded with directions that the case be remanded to the Commissioners for reconsideration in light of the new legislation, with opportunity to the parties, if so advised, to adduce additional evidence. On the remand no additional evidence was adduced.

The case is before us again after the proceedings on the remand had resulted, as previously, both administratively and in the trial court, adversely to appellant's position that his disability, which is not disputed, came within Section 4-527.

Since our remand left all questions open we have examined the administrative record. We conclude that the Commissioners erred in finding that the disabling arthritis which led to the retirement was not incurred in the performance of duty, that is, was not a disease contracted in the performance of duty. Appellant had served as a motorcycle policeman for approximately fifteen of the seventeen years he was a member of the force. When appointed in 1943 he had been examined by the Board of Police and Fire Surgeons and found physically fit for appointment. On numerous occasions thereafter he sustained injuries to his knees and legs. One such injury which was admittedly incurred in the line of duty on May 7, 1953, was described as follows: "While starting his assigned motorcycle * * *, the motor backfired causing the starter pedal to kick back injuring the officer (sic) right knee." He was treated often for right knee contusions which, he testified, were also caused by cranking his motorcycle. He suffered from arthritis of his legs and knees almost continuously after 1949, and was...