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04/03/92 RED STAR EXPRESS v. DISTRICT COLUMBIA

DISTRICT OF COLUMBIA COURT OF APPEALS


April 3, 1992

RED STAR EXPRESS, PETITIONER
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT

On Petition for Review from the District of Columbia Department of Employment Services.

Before Terry, Farrell, and King, Associate Judges.

The opinion of the court was delivered by: King

KING, Associate Judge: Petitioner, an employer, seeks reversal of the decision by the Department of Employment Services (DOES) denying a request for reimbursement from the Special Fund pursuant to D.C. Code § 36-308(6) (1988 Repl & 1991 Supp.) for payments made to an injured employee under the District of Columbia Workers' Compensation Act of 1979 ("DCWCA"). *fn1 At the time petitioner filed his claim, § 36-308(6) provided:

If an employee receives an injury which combined with a previous occupational or nonoccupational disability or physical impairment causes substantially greater disability or death, the employer shall be liable for only that part of the disability or death, and the compensation due therefrom, as caused by the subsequent injury: Provided, that supplemental compensation shall be provided from the special fund . . . to raise the total compensation received . . . to that amount which the employee . . . would be entitled . . . if the subsequent injury alone had caused the subsequent amount of disability or death . . .

D.C. Code § 36-308 (6) (1988 Repl.). Petitioner contends DOES misapplied the law when it denied its claim after determining that (1) there was no proof the employee's drug problem was a previous physical impairment, *fn2 and (2) an employer is ineligible for reimbursement from the Special Fund if the employee's previous disability or physical impairment resulted from work done for the same employer ("same-employer exception"). We affirm. *fn3

I.

In October 1982, petitioner's employee sustained a back injury while at work within the scope of his employment. Petitioner paid the employee's medical costs and temporary total disability benefits. It then requested reimbursement from the Special Fund on the grounds that the employee's current disability was "substantially greater" due to the existence of prior work injuries and a drug dependency. Petitioner argued that the employee's prior injuries weaken his back making it more susceptible to further injury and that once he was injured his drug dependency hampered his recovery. At a hearing, petitioner introduced evidence that the employee had previously injured his back and that he was taking methadone to treat a heroin addiction. Petitioner's medical expert testified that the employee's previous accidents and his drug problem together "substantially attributed to the greater difficulty." [Tr. 33] Upon further examination, however, the medical expert opined that the main reason the employee could not return to work was due to the fact that he could not receive medication for his back injury until he was cured of his pre-existing drug addiction.

DOES denied petitioner reimbursement because petitioner failed to establish that methadone maintenance constituted a previous "physical impairment." DOES also denied reimbursement on the alternative ground that petitioner was not entitled to Special Fund relief pursuant to the same-employer exception.

II.

Our standard of review is prescribed by D.C. Code § 1-1510 (1987 Repl.). The agency must make findings on each material issue of fact; its findings must be supported by substantial evidence; and its Conclusions must flow rationally from those findings and comport with the applicable law. Colton v. District of Columbia Dep't of Employment Servs., 484 A.2d 550, 552 (D.C. 1984). On an issue of statutory interpretation, we defer to the agency's interpretation so long as it is not plainly wrong or inconsistent with the legislature's intent. Remin v. District of Columbia Rental Hous. Comm'n, 471 A.2d 275, 279 (D.C. 1984).

Petitioner contends DOES erred in concluding that its employee's drug dependency was not a "physical impairment." It asserts that the error arose because DOES failed to follow its own interpretation of the statute as set forth by the Director of DOES in a prior agency decision, Beta Constr. Co. v. Office of Workers' Compensation, H&AS No. 83-124 (October 10, 1985) (Final Compensation Order). We disagree.

Under the statute a person's condition is considered a "physical impairment" if that condition "is likely to be a hindrance or obstacle to obtaining employment." D.C. Code § 36-301(17) (1988 Repl. & 1991 Supp.). Under Beta, supra, a condition is likely to be such a hindrance or obstacle if it would reasonably cause a potential employer to be reluctant to hire a person because of (1) "fear that will make the person a less capable worker (2) fear that it will make the person "a greater risk in terms of getting injured," or (3) fear that it will make the person "a greater risk in terms of degree of disability that the person would suffer from an injury." Beta Constr. Co., supra, order at 13. DOES concluded that "the record evidence falls short of showing that [the employee's] daily ingestion of methadone . . . was likely to be an adverse factor in his being employed or being retained in employment." [Decision at 5] After conducting an independent review of the record, we are satisfied that the Conclusion reached by DOES is in accord with the applicable statute and the prior decision by DOES in Beta.

To establish that the employee's methadone maintenance constituted a physical impairment, petitioner relied upon the testimony of its medical expert. Although the expert testified that an excessive dose of methadone causes sleepiness and drowsiness, [Tr 36] he did not testify that the dosage taken by the employee was excessive; nor did he even describe the effects of the dosage actually taken by the employee. Further, although the expert testified that the methadone treatment materially affected the employee's "ability to perform in any sustained manner in a job," [Tr 45] that opinion was directly contradicted by the employee, who stated that during the years he had taken methadone the methadone never interfered with his ability to do his job. [Decision at 3-4] No evidence was presented to refute the employee's claim.

Nor was any evidence presented to establish that employers generally would be reluctant to hire a person undergoing methadone treatment for fear that that person would be less capable or more likely to suffer an injury. Petitioner relies upon its expert's testimony that he would not personally recommend employment as a driver for one undergoing methadone maintenance. However, the expert did not testify that employers generally would be reluctant to hire a person undergoing methadone maintenance; nor is there any indication that he was qualified to do so. We conclude, therefore, that substantial evidence does not exist to support the contention that the employee was either less capable or more likely to injure himself because of the methadone he was taking or that employers would reasonably fear that such an employee would be less capable or more likely to suffer an injury.

In addition, there was no evidence presented establishing that taking methadone made the employee a greater risk in terms of the degree of disability he would suffer if injured. On the contrary, the expert testified that the methadone maintenance did not enhance the employee's disability caused by his last injury. [Tr 44-45] Nor was there any evidence presented that employers would reasonably fear that a person taking methadone would be a greater degree of disability that person would suffer if injured. Again, petitioner relies upon its expert's personal opinion, an opinion which could be properly rejected for the reason we have already stated. Thus, substantial evidence does not exist to support the contention that the methadone maintenance increased the risk that the employee would suffer a greater disability if injured or that employers would reasonably fear such a risk.

There is ample support for the Conclusion of DOES that petitioner failed to establish that its employee's methadone maintenance constituted a physical impairment in that employers should generally be reluctant to hire or retain him because of it. *fn4 That Conclusion defeated petitioner's claim. The success of the claim was dependent entirely upon a finding that the drug problem was a previous physical impairment. Petitioner did not assert, nor did it present any evidence to establish, that the employee's prior back injuries alone caused the 1982 injury to be a "substantially greater disability. " Having determined that petitioner failed to establish a necessary component of its claim, that the employee's drug dependency constituted a pre-existing physical impairment, DOES concluded that petitioner's request for reimbursement must be denied. *fn5

The Conclusion of DOES is supported by substantial evidence and is in accordance with the applicable law. Therefore, the decision of DOES is

Affirmed.


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