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Velasquez v. Department of Employment Services

January 28, 1999


Before Steadman and Ruiz, Associate Judges, and Newman, Senior Judge.

The opinion of the court was delivered by: Steadman, Associate Judge

Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.

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

Argued October 20, 199

On August 13, 1995, while working as a food service employee at Sibley Memorial Hospital, petitioner Teresa Velasquez stepped on a tin can and fell. She received temporary total disability payments until December 8, 1995, when she returned to work for several months. She appeals the decision of the Director of the Department of Employment Services (DOES) upholding a hearing examiner's denial of resumption of such disability payments from March 15, 1996, to date, based upon her claim of further incapacitating injuries resulting from the fall. Because the hearing examiner failed to sufficiently address several potentially key elements of the record, we vacate the Director's decision and remand the case for further proceedings not inconsistent with this opinion.


A. Factual Background

On August 13, 1995, Teresa Velasquez twisted her ankle and fell on her right side during the course of her work as a food service employee when she stepped on a soda can. Her supervisor sent Velasquez to Sibley's emergency room for treatment. At the emergency room, Velasquez received an X-Ray and returned for follow-up in a week. When she returned, emergency room staff treated her and recommended further follow up with an orthopedist. As is customary in the emergency room, Velasquez was given the name of the on-call orthopedist, with whom she could seek further care. The on-call physician at that time was Dr. Michael R. Chardack.

Velasquez's first appointment with Chardack was the same day she received her referral, August 18, 1995. She saw him ten times thereafter over the course of nearly a year, at first on a several-times-a-month basis through November of 1995, and thereafter once every several months in 1996. Overlapping her course of visits with Chardack, Velasquez began treatment with Dr. Rafael A. Lopez in March of 1996, although she had begun requesting referrals to Lopez as early as October of 1995. Velasquez preferred Lopez because of the proximity of his office and his Spanish speaking skills. She saw Lopez approximately eleven times in 1996.

Velasquez requested and was granted temporary total disability benefits from August 13 to December 8, 1995. In Chardack's view, Velasquez's twisted ankle had healed by the time she went back to work in December. He could find no basis for her continuing complaints about being unable to stand on the foot. Velasquez turned to Lopez, who took the view that the ankle continued to be impaired and that her complaints of shoulder pain were also related to the August fall. By mid-March of 1996, Velasquez asserted that she could not do her job as then defined due to her physical condition. After a March 29, 1996 report by Dr. James Trone, a physician employed by Sibley, indicating that Velasquez was indefinitely disabled for work purposes, Velasquez was discharged on April 1, 1996. Velasquez claimed that the discharge itself was an act of retaliation for her workers' compensation claims.

Crediting Chardack's deposition testimony and medical reports, the hearing examiner found that Velasquez injured her ankle in the fall, but that the injury had healed by December 8, 1995, and that her later complaints about shoulder pain were both untimely for notification purposes, and unrelated to the initial injury. *fn1

B. Standard of Review

Generally, agency findings are accorded great deference. D.C. Code §1-1509(e) requires of DOES that "every decision and order adverse to a party to the case...shall be accompanied by findings of fact and Conclusions of law...supported by and in accordance with the reliable, probative, and substantive evidence." When these basic requirements are met, our review is very limited. See Harris v. District of Columbia Office of Worker's Compensation, 660 A.2d 404, 407 (D.C. 1995). "That review presupposes, however, that the agency has made findings on the pivotal facts at issue." Washington Hosp. Center v. District of Columbia Dep't of Employment Servs., No. 97-AA-1955, slip op. at 4 (D.C. Dec. 24, 1998) (per curiam). "Ignoring the complexities with conclusory statements clearly will not suffice." Spartin v. District of Columbia Dep't of Employment Servs., 584 A.2d 564, 573 (D.C. 1990). Finally, "an administrative order can be sustained only upon the basis relied upon by the agency. We cannot substitute our judgment for that of the agency nor make findings on issues which the agency did not address." Cooper v. District of Columbia Dep't of Employment Servs., 588 A.2d 1172, 1176 (D.C. 1991).

In the case before us, we agree with Velasquez that the Compensation Order affirmed by the DOES Director fails to sufficiently address three elements of the record: (1) the impact of the report by Sibley Hospital's Dr. Trone on the determination of disability; (2) the status of the claimant's relationship with her current physician, Dr. Lopez, as a possible authorized treating physician; and (3) the adequacy of notice of the claimed ...

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