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07/29/93 SHARON BENNETT v. DISTRICT COLUMBIA

July 29, 1993

SHARON BENNETT, PETITIONER
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, INTERVENOR



Petition for Review of a Decision of the District of Columbia Department of Employment Services

Before Ferren, Steadman and King, Associate Judges.

The opinion of the court was delivered by: King

KING, Associate Judge: Petitioner, Sharon Bennett, challenges the decision by the Director (the "Director") of the Department of Employment Services ("DOES") affirming a hearing examiner's denial of Bennett's workers' compensation claim for permanent partial disability benefits. Bennett presents two contentions in her petition: (1) the findings below were not supported by substantial evidence, and (2) the Director erred in failing to consider newly discovered medical evidence. We agree with respect to the second contention and reverse and remand.

I.

Bennett sought workers' compensation benefits for an injury she sustained during the course of her employment as a Systems Maintenance Clerk for the Intervenor, the Washington Metropolitan Area Transit Authority ("WMATA" or "employer"). See D.C. Code §§ 36-301 to -345 (1988 & 1992 Supp.). After intermittently receiving temporary total and partial disability benefits, Bennett returned to work with work restrictions. The employer contended that Bennett could resume work without the restrictions and opposed her request for supplemental permanency benefits. See D.C. Code § 36-308 (3) (V)(1988). A formal hearing was held before a Hearings & Appeals Examiner ("hearing examiner") of the Hearings and Adjudication Section of DOES who, in a Compensation Order, concluded that Bennett had not sustained a permanent partial disability. Bennett appealed the Compensation Order to the Director of the Department of Employment Services. While the appeal was pending, Bennett sought to supplement the record with new medical evidence. The Director adopted the Compensation Order; however, no reference was made in that order to Bennett's request to supplement the record.

Bennett challenges the Director's decision contending that "the findings below not supported by substantial evidence," and that "it was reversible, prejudicial error for the District Director to fail to add newly discovered medical evidence to the record or to consider if the evidence was material. . . . "We conclude that the Director was required, under D.C. Code § 36-322 (b)(2)(1988), to determine whether the new medical evidence should have been considered, or to take some action in response to Bennett's request to have that evidence considered. By ignoring the request to consider new medical evidence, the Director committed error. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

II.

On December 6, 1985, Sharon Bennett suffered back, neck and shoulder injuries while performing her work duties for WMATA. The employer voluntarily paid workers' compensation benefits. Bennett intermittently received temporary total disability benefits from December 7, 1985, to January 18, 1988, and partial disability benefits from January 19, 1988, to June 6, 1988. She returned to work full-time in a light-duty position in December 1986. Two days later, after complaining of pain, Bennett's work load was reduced to four hours a day. In February 1987, her work hours were increased to six hours each day. Bennett stopped working in March 1987, on the advice of her physician. She ultimately returned to WMATA in May 1988, working in a clerical position paying $11,000 less than her former job. Bennett sought compensation for the difference between her pre-injury wage and her current salary. WMATA opposed that request pursuant to D.C. Code § 36-308 (3)(V).

On June 7, 1988, an evidentiary hearing was held and depositions or reports from six different doctors were received in evidence. Five of those doctors, in support of Bennett's claim, concluded that she suffered an injury that would restrict her ability to perform some of her pre-injury job duties. For example, a Dr. Pavot, in his deposition, stated that an MRI showed Bennett suffered a prolapsed lumbar disc (lower back) with facet arthropathy injury. Dr. Pavot concluded that Bennett could not resume her prior duties without risking reinjury of her back. Dr. Pavot also opined that Bennett had a "partial, permanent disability of eleven to twelve percent of the total body," [Pavot Depo. at 36] and that she should not be lifting anything over 25 pounds. Only one doctor, a Dr. Collins, was of the view that there should be no work restrictions because there was no permanent impairment as a result of the injury.

The hearing examiner, in an August 26, 1988, Compensation Order, concluded that Bennett was "not entitled to permanent disability benefits since she has no disabling condition related to the work injury." The hearing examiner also found that the injury was temporary and that by November 3,1987, the was resolved and Bennett was able to return to her pre-injury position. A WMATA representative testified that had Bennett returned in November, she would have been employed in her same pre-injury position.

On September 28, 1988, Bennett filed an Application for Review challenging the hearing examiner's order. Later that same month, she began experiencing neck pain that she claims stemmed from the December 6, 1985, injury. In January 1989, Bennett underwent a surgical procedure which revealed that she had a ruptured cervical disc, located in the upper back, which was removed during that operation. Bennett applied for and received workers' compensation during her recuperation period.

On March 1, 1989, Bennett requested leave to adduce additional evidence in support of her Application for Review. Bennett maintained that her January surgery was connected to the injury sustained in December 1985. In September 1991, the Director issued a decision affirming the Compensation Order. The Director took no action on, and made no findings in response to, Bennett's supplemental pleading seeking to adduce the newly discovered medical evidence.

III.

The District of Columbia Workers' Compensation Act provides that "if any party shall apply . . . for leave to adduce additional evidence and shall show . . . that such additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the initial hearing . . . [the Director] may order such additional evidence . . . be made a part of the record." D.C. Code § 36-322 (b)(2). Before the Director's decision affirming the hearing examiner was issued, Bennett moved the Director to consider the records from the surgery which was performed after the hearing examiner denied her request for benefits. Once Bennett made this request, "the Director was obligated by statute to consider, whether this proffered evidence was material and whether there were reasonable grounds for the failure to adduce such evidence in the initial hearing." King v. Dep't of Employment Servs.., 560 A.2d 1067, 1073 (D.C. 1989) (quoting D.C. Code ยง 36-322 (b)(2)) (internal quotations omitted) (emphasis added). In King, the petitioner sought to supplement the record by adding the discharge summary from surgery that occurred, as in this case, after the hearing examiner's decision, but before the Director had acted on the appeal from that decision. This ...


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