APPEAL FROM THE DEPARTMENT OF EMPLOYMENT SERVICES (DOES). [723 A2d Page 846]
Before Terry and Reid, Associate Judges, and Newman, Senior
The opinion of the court was delivered by: Newman, Senior Judge:
In an August 15, 1997 decision, the Director of the Department of Employment Services ("Director") affirmed a Hearing Examiner's compensation order denying Stephen Short a modification of benefits. Mr. Short appealed, contending: (1) that the Hearing Examiner did not accord the proper weight to the treating physicians' testimony; and (2) that the Hearing Examiner failed to apply the statutory presumption that the injury comes under the District of Columbia Workers' Compensation Act, D.C.Code § 36-301, et seq. (1997) ("the Act"). Washington Metropolitan Area Transit Authority ("WMATA") filed as an intervenor, contending: (1) that the Director erred by denying a motion to dismiss based on Mr. Short's failure to file a memorandum of points and authorities; and (2) that the doctrine of res judicata precludes Mr. Short from receiving compensation. We reverse and remand for further consideration.
Mr. Short worked as a metrobus operator for WMATA. On November 2, 1985, the seat of Mr. Short's bus snapped back, and Mr. Short sustained injuries. Mr. Short began to see an orthopedist, Dr. Rida Azer, complaining of low back pain, with pain radiating into his legs and feet. Dr. Azer diagnosed [723 A2d Page 848]
Mr. Short with a herniated disc at L5-S1, and documented a possible radiculopathy *fn1 through an electromyogram. *fn1 Dr. Azer referred Mr. Short to Dr. Juan Jammes, a neurologist. Dr. Jammes diagnosed Mr. Short with diabetes mellitus after performing a glucose tolerance test. Dr. Jammes concluded that Mr. Short was suffering from a diabetic neuropathy, *fn1 and not a radiculopathy. The neuropathy was determined to be the cause of the pain and numbness in Mr. Short's legs and feet.
Mr. Short filed a claim for workers' compensation benefits for his back injury and asserted that his diabetes and diabetic neuropathy were work-related. A claim examiner from the Office of Workers' Compensation referred Mr. Short to Dr. Harvey Rubenstein for an evaluation in 1986. Dr. Rubenstein diagnosed Mr. Short with diabetes mellitus, and concluded that the work-related injury did not cause the diabetes. In an order dated May 29, 1987, a Hearing Examiner awarded benefits for a closed period from August 17, 1986 to October 19, 1986 for the back injury, but concluded that Mr. Short's diabetes and diabetic neuropathy were not caused by the work-related accident.
Mr. Short returned to work in 1987. Mr. Short continued to be treated by Dr. Azer, and began treatments with Dr. Rubenstein. Between 1987 and 1995, Mr. Short missed work for two brief periods due to muscle spasms in his lower back and pain in his lower back, legs and feet. During those periods, Mr. Short received disability benefits. Due to increased pain and numbness in his feet, however, Mr. Short stopped working in December 1995. Mr. Short is currently unable to work as he no longer has full use of his feet.
Mr. Short filed for a review of benefits, seeking a modification of the May 29, 1987 compensation order, to award him benefits beginning December 11, 1995. Mr. Short presented evidence from Dr. Azer and Dr. Rubenstein that his symptoms involving the lower extremities and feet were not related to his diabetes, but to his November 2, 1985 work-related injury. Dr. Azer diagnosed Mr. Short with bilateral tarsal tunnel syndrome.
In an order dated January 27, 1997, a Hearing Examiner denied Mr. Short's request for a modification of the May 29, 1987 compensation order. The Hearing Examiner concluded that "the complaints which claimant admits to disabling him from his employment are similar in kind, if not degree, to those complaints made at the time of the original hearing. . . ." Short v. Washington Metro. Area Transit Auth., H & AS No. 87-44A, OWC No. 083016, at 6 (Compensation Order, January 27, 1997). The Hearing Examiner stated that the doctrine of res judicata barred Mr. Short's request for modification. Id.
Mr. Short filed an application for review with the Director, but did not file a memorandum of points and authorities. WMATA filed a motion to dismiss for failure to file a memorandum of points and authorities. In an August 15, 1997 order, the Director denied the motion to dismiss. Short v. Washington Metro. Area Transit Auth., Dir. Dkt. 97-20, H & AS No. 87-44A, OWC No. 083016, at 3 (Director's Decision, August 15, 1997). The Director then affirmed the January 27, 1997 compensation order. Id.
As an initial matter, WMATA claims that the Director should have granted its motion to dismiss because Mr. Short failed to file a memorandum of points and ...