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SIBLEY MEMORIAL HOSP. v. DC DOES

May 7, 1998

SIBLEY MEMORIAL HOSPITAL, PETITIONER,
V.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT, AND ANN GARRETT, INTERVENOR.



Before Farrell and Reid, Associate Judges, and Kern, Senior Judge.

The opinion of the court was delivered by: Kern, Senior Judge:

Sibley Memorial Hospital (Petitioner) petitions this court for review of the decision of the Director of the Department of Employment Services (DOES), upholding a Compensation Order a DOES Hearing Examiner entered that Petitioner pay to Ms. Ann Garrett (Claimant) "the medical expenses associated with Dr. Azer and Dr. Goald." The Hearing Examiner found that "Claimant did not engage in an unauthorized change of physicians, and that the third surgical procedure [which Drs. Goald and Azer had performed] was reasonable and necessary." *fn1 Upon this record, we are constrained to remand the case to DOES for further proceedings.

It is undisputed that Claimant was an employee of Petitioner and sustained in July [711 A2d Page 106]

1986, an injury to her back arising out of and in the course of her employment. The Hearing Examiner found in the Compensation Order:

[C]laimant, who then weighed approximately 98 pounds, was assisting a 200 pound falling patient back into her chair. . . . [She] felt "something pop" in her back followed by low back pain and discomfort.

The record reflects that between the date of her injury and April 1992, Claimant was examined by eleven different physicians and underwent four surgical procedures, all in connection with the injury she had sustained as a consequence of lifting a patient while employed by Petitioner. *fn2

Petitioner, at the hearing before the Hearing Examiner, contended that Claimant's final two surgeries, performed by Drs. Goald and Azer, were not necessary, relying on (1) the testimony of two experts who had examined Claimant prior to the November 1991, surgery; (2) the opinion of Dr. Sloan who had been Claimant's treating physician from the time of her initial injury in 1986 until February of 1991; and (3) the opinion of Medical Claims Review Service ("MCRS"), from whom Petitioner had requested a utilization review report pursuant to D.C.Code § 36-307(b)(6)(B) (1997 Repl.). *fn3 Petitioner also argued that Claimant engaged in an unauthorized change of physicians when she obtained treatment from Drs. Goald and Azer rather than from her treating physician, Dr. Sloan.

At the request of Drs. Goald and Azer, MCRS reconsidered its initial conclusion that the disputed surgeries were unnecessary and filed a supplemental report on October 1, 1992. *fn4 MCRS did not change its conclusion that the surgeries were unnecessary, but did provide some additional explanation of its position. However, the Hearing Examiner refused to reopen the record in order to add the supplemental utilization review report, although she did not issue the Compensation Order until November 28, 1994.

Petitioner appealed to the Director, who rendered her decision in January 1997. The Director did not address the issue whether the surgery was necessary, but rather considered only the issue whether Claimant's change of physicians was authorized under the Act. The Director, relying on Medical Assocs. of Capitol Hill v. District of Columbia Dep't of Employment Servs., 565 A.2d 86 (D.C. 1989), affirmed the Hearing Examiner.

Petitioner first contends that the Hearing Examiner erred by refusing to consider the supplemental utilization review report. We note that the Corporation Counsel of the District of Columbia, representing Respondent DOES, concedes that this omission was an error on the part of the agency that requires a remand. [Brief at 7, n. 5.] We further note that the supplemental utilization review report explained why the Review Service did not consider neurodiagnostic tests such as the EMG and NCV studies dispositive in reaching its conclusion that the surgery was unnecessary. This explanation is significant to the disposition of this case because the Hearing Examiner had based her rejection of MCRS's conclusion in part on the fact that "there was no evidence that [MCRS] reviewed the EMG and nerve conduction study results. . . ." [Comp. Order.] Consequently, we cannot say upon the record before us that the Hearing Examiner would have reached the same conclusion had it considered the supplemental utilization review [711 A2d Page 107]

report. *fn5 Accordingly, we must remand the case in order that the agency has a full and complete record upon which to make its determination. See Bennett v. District of Columbia Dep't of Employment Servs., 629 A.2d 28, 31 (D.C. 1993).

The record reflects that in rendering her determination, the Hearing Examiner not only refused to consider the supplemental utilization review report but also failed to explain clearly why the utilization review report rendered pursuant to the applicable statute was not decisive in making her determination. MCRS in its report thoroughly reviewed Claimant's six-year medical history. It focused on the inconsistent clinical findings of six different doctors who had examined Claimant in the ten months prior to her third surgery and on the results of the neurodiagnostic tests performed most recently before such surgery. The MCRS report then concluded that the submitted records in its opinion did not support the necessity or timeliness of the third surgical procedure. Even after it had reconsidered its decision at the request of Drs. Goald and Azer, MCRS concluded that the surgery was unnecessary. The Compensation Order, entered two years after the record was closed, does not address the dispute presented by the reports of MCRS and the differing opinions of the various experts deposed for and testifying at the hearing with a clear explanation of the conclusion reached. In sum, the Hearing Examiner's findings of fact do not support the conclusion reached in the Compensation Order. *fn6

On remand, DOES must address expressly the differing expert opinions and explain clearly which experts it credits and why it credits them, as well as why the conclusion presented in the MCRS report is without merit. We understand the intent that the District of Columbia Council had in enacting D.C.Code § 36-307(b)(6), as explained by the Committee Report, was to contain medical costs without diminishing the quality of health care. Hence, a utilization review report presented to DOES that concludes the surgery performed was unreasonable requires DOES to address specifically this report and articulate reasons why this report is being rejected.

Petitioner also contends that DOES erred in concluding that Claimant did not engage in an unauthorized change of physicians. In accordance with the statute, "[t]he employee shall have the right to choose an attending physician to provide medical care under this chapter." D.C.Code § 36-307(b)(3). Once an employee has selected a treating physician, however, such employee must obtain permission from either the insurer or the Office of Workers' Compensation before switching to another physician. 7 DCMR § 212.12, -13 (1994). DOES has apparently interpreted this requirement to permit referrals from an ...


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