McCrea v. District of Columbia Police and Firefighters' Retirement and Relief Board, 010319 DCCA, 15-AA-597

Docket Nº:15-AA-597
Opinion Judge:Blackburne-Rigsby, Chief Judge:
Party Name:Nicole R. McCrea, Petitioner, v. District of Columbia Police and Firefighters' Retirement and Relief Board, Respondent.
Attorney:Nicole R. McCrea, pro se. Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General at the time the brief was filed, Loren L. AliKhan, Deputy Solicitor General at the time the brief was filed, and James C. McKay, Jr., Senior Assistant Attorney General, were on ...
Judge Panel:Before Blackburne-Rigsby, Chief Judge, McLeese, Associate Judge, and Nebeker, Senior Judge. Nebeker, Senior Judge, dissenting:
Case Date:January 03, 2019
 
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Nicole R. McCrea, Petitioner,

v.

District of Columbia Police and Firefighters' Retirement and Relief Board, Respondent.

No. 15-AA-597

Court of Appeals of The District of Columbia

January 3, 2019

Submitted September 28, 2017

Petition for Review of an Order of the District of Columbia Police and Firefighters' Retirement and Relief Board (FD-2038-14)

Nicole R. McCrea, pro se.

Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General at the time the brief was filed, Loren L. AliKhan, Deputy Solicitor General at the time the brief was filed, and James C. McKay, Jr., Senior Assistant Attorney General, were on the brief, for respondent.

Before Blackburne-Rigsby, Chief Judge, McLeese, Associate Judge, and Nebeker, Senior Judge.

OPINION

Blackburne-Rigsby, Chief Judge:

Pro se petitioner Nicole R. McCrea, a fifteen-year veteran of the District of Columbia Fire and Emergency Medical Services Department ("Department"), was involuntarily retired on April 30, 2015, by respondent District of Columbia Police and Firefighters' Retirement and Relief Board ("Board") upon its determination that she was mentally disabled and incapacitated due to a diagnosis of Adjustment Disorder with Anxiety and Depression ("ADAD"). The Board concluded that her disability was not incurred in the "performance of duty" ("POD") and was therefore compensable under the provision of the statute governing retirement disability for injuries not incurred in the POD, instead of the provision for disabilities incurred during the POD, which provides benefits at a higher annuity rate.

Ms. McCrea challenges her involuntary retirement on the grounds that the Board's conclusion "lacks competent, objective, probative and reliable evidence." In the alternative, she seeks a reversal of the Board's determination that her disability was not incurred in the POD, claiming that she is entitled to receive retirement benefits at the POD annuity rate. Ms. McCrea claims that her ADAD condition stems from a sexual assault by her co-workers while she was on duty, which she contends constitutes a disability incurred in the POD.

We affirm and conclude that substantial evidence in the record supports the Board's decision to involuntarily retire Ms. McCrea for a disability not incurred in the POD. The alleged incident of sexual assault on Ms. McCrea cannot form the basis of relief pursuant to D.C. Code § 5-710 (a) (2012 Repl.), which dictates relief for a disability incurred in the POD. Our conclusion is controlled by our decisions in In re Underwood v. National Credit Union Administration, 665 A.2d 621 (D.C. 1995), and Nunnally v. District of Columbia Police & Firefighters' Retirement & Relief Board, 184 A.3d 855 (D.C. 2018), wherein we held that mental and emotional injuries resulting from sexual harassment in the workplace could not be classified as "injuries" arising out of employment, since sexual harassment does not concern any task the employee was called upon to perform. Underwood, supra, 665 A.2d at 632-33. We hold that, likewise, mental and emotional injuries resulting from sexual assault in the workplace are not compensable as injuries incurred in the POD.

I. Factual and Procedural Background

Ms. McCrea began working as a firefighter with the Department on January 3, 2000. Her claim arose from an incident that she contends occurred at around midnight on the evening of May 30, 2013. She asserts that she was sleeping on her stomach at the firehouse, when three male co-workers "fondl[ed] [her] between [her] legs." Following the May 30th incident, Ms. McCrea contends that she experienced "difficulty concentrating, difficulty falling asleep and/or staying asleep, headaches, loss of appetite, nausea, upset stomach and diarrhea." On June 25, 2013, Ms. McCrea reported the incident to the District of Columbia Police and Fire Clinic ("Clinic") and requested that her ensuing mental health injury be classified as a POD injury. After filling out the Clinic's incident report, Ms. McCrea was referred to the Clinic's Behavioral Health Services section where she was interviewed by a psychologist, Mary Kenel, Ph.D., who evaluated her and placed her on sick leave on June 25, 2013. Ms. McCrea remained on sick leave until the Board made its decision to retire her on April 30, 2015, which became effective on May 15, 2015.

In March 2014, the Clinic referred Ms. McCrea to clinical psychologist and neuropsychologist, Dr. Gloria Morote, who specializes in psychological evaluations. Dr. Morote recommended Ms. McCrea for disability retirement. D.C. Code § 5-633 (2012 Repl.) mandates that uniformed employees who have been on leave for a significant period of time due to injury or illness be recommended for disability retirement. Dr. Morote based her recommendation on the fact that Ms. McCrea had been on sick leave for an extended period of time and her diagnosis of an anxiety disorder, which affected her "ability to . . . express her feelings, work under stress, make judgments, and deal with people in general," and prevented her from performing her duties as a firefighter. The Board subsequently held a three-day retirement hearing on November 6, 2014, and January 22 and February 12, 2015.

At the hearing, Ms. McCrea appeared pro se and testified that she did not wish to be retired. She urged the Board to adopt the conclusions of her treating psychologist, Dr. Beverli Mormile, that Ms. McCrea suffered from Post-Traumatic Stress Disorder ("PTSD"), was fit to return to work on a limited-duty status, and should be reinstated. The Board determined that Ms. McCrea suffered from an ADAD, "which prevents her from performing useful and efficient service with her Department," and did not find the record evidence sufficient to support the finding that she suffered from PTSD. The Board subsequently retired Ms. McCrea "by reason of a disability not incurred in the performance of duty." The Board based its decision on Ms. McCrea's demeanor during the three days of hearings, where she was "visibly and extremely mistrustful and paranoid;" her refusal to comply with the Clinic's requests for treatment information from her treating psychologist; her failure to submit any documentation, including diagnostic test results or clinical notes that would support Dr. Mormile's diagnosis and treatment recommendations; and the record evidence as a whole. The Board weighed this evidence against the Department's evidence, which...

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