Before Terry and Farrell, Associate Judges, and Pryor, Senior
The opinion of the court was delivered by: Terry, Associate Judge
Petition for Review of a Decision of the District of Columbia Department of Employment Services
Submitted February 24, 2000
Petitioner, Nellie Walden, seeks review of a final decision of the Department of Employment Services ("DOES") affirming a hearing examiner's denial of her application to modify a previously issued compensation order issued under the District of Columbia Workers' Compensation Act ("the Act"), D.C. Code §§ 36-301 to 36-345 (1997). Ms. Walden's application was denied after the hearing examiner reviewed her proffered evidence under section 36-324 of the Act. The examiner concluded that Ms. Walden's application was barred by the doctrine of res judicata because her claim for benefits had been previously litigated between her employer and herself. The hearing examiner also ruled that Ms. Walden did not proffer sufficient evidence to show a change in her medical condition or any other circumstance that would support modification of the compensation order. The Director of DOES ("the Director") affirmed the hearing examiner's ruling. We reverse the Director's decision and remand the case for further proceedings.
Ms. Walden worked as a bus driver for the Washington Metropolitan Area Transit Authority ("WMATA"). On October 27, 1987, the bus she was driving was involved in an accident, and Ms. Walden suffered injuries to her left knee and left ankle which prevented her from working. She sought workers' compensation benefits from WMATA, and WMATA paid her such benefits from September 8, 1988, to December 29, 1989, when she returned to work.
In February 1990 Ms. Walden was unable to continue working and filed a claim with DOES for additional compensation. She did not go back to work again until July 30, 1990. At a subsequent hearing on her claim, Ms. Walden testified and offered into evidence medical reports from Dr. Hampton Jackson, her treating physician. Dr. Jackson reported that Ms. Walden suffered from a 15 percent permanent disability of the left knee and a 15 percent permanent disability of the left ankle. He also concluded that she was "not fit on a permanent basis to return to her previous job with [WMATA]."*fn1
In opposing the claim, WMATA offered the medical reports of Dr. David Dorin and Dr. Louis Levitt, two physicians who had independently examined Ms. Walden. Both doctors concluded that Ms. Walden had sustained physical injuries as a result of the accident and that she was capable of resuming work as a bus driver. However, their opinions differed on the degree of her physical disability. Dr. Dorin opined that Ms. Walden had suffered a 5 percent permanent impairment of the knee and a 10 percent impairment of the ankle, whereas Dr. Levitt found no permanent impairment whatsoever.
In his compensation order, the hearing examiner found that Ms. Walden had reached maximum medical improvement as of May 2, 1990 (the date of Dr. Jackson's report), and awarded her temporary total disability benefits ending on that date.*fn2 The examiner also ruled that Ms. Walden's injury was not a scheduled loss under D.C. Code § 36-308 (3)(A)-(U) because "the physician's rating has not been translated to the leg." Accordingly, Ms. Walden was found to be ineligible for disability benefits for the permanent partial loss of the use of her leg.
Ms. Walden appealed to the Director from the hearing examiner's decision, contending that the examiner had erred in denying her scheduled benefits on the ground that her injury did not amount to a loss of a scheduled member. The Director, however, affirmed the decision of the hearing examiner on May 22, 1995, stating in her order:
[I]n order to be awarded benefits under the schedule, there must be disability to a schedule member. As the record is devoid of any evidence that claimant has a disability to her leg or foot which are both schedule members, the hearing examiner was correct in denying claimant disability benefits based on the schedule.
Instead of seeking review of the Director's decision in this court, Ms. Walden elected to apply for a modification of the compensation order pursuant to section 36-324 of the Act.*fn3 She filed such an application on June 5, 1995, requesting a new hearing so that she might submit medical evidence to demonstrate permanent disability to her leg or foot, or both, under section 36-308 of the Act. Ms. Walden argued that the finding of no scheduled disability in the prior compensation order was the type of legal or factual matter intended to be the subject of modification under section 36-324.
The hearing examiner denied Ms. Walden's application without a hearing on the ground that she had failed to present new evidence sufficient to show that a change of condition had occurred, as required by section 36-324 (b). Therefore, the examiner ruled, there was no reason to hold a hearing on Ms. Walden's request to modify the compensation order. The examiner also held that the proffered evidence did not "state anything to show a disability or loss of function in fact of the leg or foot . . . ." ...