Before Schwelb and Reid, Associate Judges, and Mack, Senior Judge.
The opinion of the court was delivered by: Reid, 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.
Petition for Review of a Decision of the District of Columbia Department of Employment Services
The issue presented in this case is whether petitioner George Baliles, who sought temporary total disability benefits from April 1, 1995 to the present and continuing, voluntarily limited his income within the meaning of D.C. Code § 36-308 (3)(V)(iii) (1997) by retiring from his employment position at the Washington Metropolitan Area Transit Authority ("WMATA"). The hearing examiner denied him temporary total disability benefits after April 1, 1995, the date of his retirement, and the Director of the Department of Employment Services ("DOES") affirmed. Finding nothing in the record to support Mr. Baliles' contention that he was forced to retire, we affirm the Director's decision.
On November 26, 1993, Mr. Baliles, sustained an injury to his back while working for WMATA as a Fire Compliance Officer. He sought medical attention from Group Health Association. Mr. Baliles returned to work on November 29, 1993, and continued to work until March 1994.
On March 18, 1994, Mr. Baliles initially was unable to get out of bed due to paralyzing back pain. Eventually he made it to work but asked to be taken to the hospital. There he was given pain killers and scheduled for an MRI. The MRI revealed a right sided disc protrusion at L4-5. Mr. Baliles was referred to Dr. James Tozzi for further care. An independent examination was conducted by Dr. Louis Levitt at the request of WMATA. Based upon Dr. Levitt's recommendation, Mr. Baliles enrolled in a "work hardening" program at Ergoworks, a company specializing in physical assessment and rehabilitation. In a letter dated December 13, 1994, Ergoworks advised that:
"[Mr. Baliles] qualifies for the medium to heavy physical demand level. He has met his program goals of improved body mechanics/awareness, increased endurance/cardiovascular fitness . . . . [He] currently meets the requirements to perform his previous position with ability to monitor his symptoms on his own at work. He is, therefore, discharged from his work hardening program."
On December 19, 1994, Dr. Levitt recommended that Mr. Baliles return to work, with a one month temporary restriction on lifting anything in excess of thirty to fifty pounds. At the Conclusion of the month, he stated, Mr. Baliles "can return to full duty without compromise of his work activities." Dr. Levitt added: "At the present time, I do not find a permanent impairment that has resulted from his work trauma." A similar Conclusion was reached by Dr. Tozzi when he cleared Mr. Baliles on December 23, 1994 to return to work subject to restrictions against lifting more than thirty pounds and against any climbing.
On January 9, 1995, Mr. Baliles returned to his previous position, which had been modified by WMATA to accommodate his medical restrictions. On or around January 17, 1995, Mr. Baliles was informed orally that his position had been subjected to a reduction in force ("RIF"), effective March 17, 1995. *fn1 Mr. Baliles decided to retire and to use as much of his sick leave as possible before his actual retirement date. He also wanted to avoid the loss of his life insurance. *fn2 He went on sick leave beginning January 23, 1995, even though the RIF had not taken place and he was not sick.
On March 2, 1995, Mr. Baliles made a follow-up visit to his treating physician, Dr. Tozzi. After his examination of Mr. Baliles, Dr. Tozzi prepared a report indicating, inter alia:
"I do not feel that [Mr. Baliles] is impaired as a result of this condition and, as I have stated previously, I feel that he could be active in a normal capacity, but expect to have an occasional bout of low back pain. I have advised he get a lumbar support. I have advised that he try to stay in shape by continuing flexibility exercises."
Despite Dr. Tozzi's report, Mr. Baliles did not return to work although the RIF did not take place until March 17, 1995. Thus, Mr. Baliles was on sick leave from January 23 to March 17, 1995. The effective date of his retirement was April 1, 1995. *fn3 At that time he was 59 years old. He began receiving $470.00 per month from WMATA in pension benefits. *fn4 ...