Before Farrell, Reid and Glickman, Associate Judges.
The opinion of the court was delivered by: Glickman, Associate Judge
Petition for Review of a Decision of the District of Columbia Department of Employment Services
Petitioner Washington Metropolitan Area Transit Authority (WMATA) appeals a decision of the Director of the Department of Employment Services(DOES) upholding an award of workers' compensation benefits to Wayne Young. The benefits were awarded on Young's application to modify an earlier order in light of a subsequent deterioration in Young's mental health. WMATA contends that the Director erred in reversing a finding in the earlier order that Young's psychiatric disability was not work-related; and in affirming a finding not supported by substantial evidence, that Young now suffers from a work-related brain disorder characterized by paranoia and other severe symptoms. We conclude that neither contention entitles WMATA to relief, and accordingly we affirm the decision of the Director in this case.
Wayne Young was working for WMATA as a track laborer on June 23, 1991, when he touched an energized third rail and received a mild electrical shock. Young was hospitalized for two and a half days for observation and evaluation. No burns or other abnormalities were found, and Young was discharged with instructions to avoid strenuous exercise and take a week off from work. Young did not return to work, however, and WMATA voluntarily paid temporary total disability benefits to him for approximately two months after the accident. WMATA then discontinued the disability payments, and Young filed a claim for workers' compensation benefits with DOES, asserting that as a result of the accident he was suffering from ongoing physical disability and post-traumatic stress disorder (PTSD).
After holding a hearing in February 1992, and receiving evidence including Young's testimony about his physical impairments and mental complaints, a surveillance videotape, and the testimony of neurological and psychological experts on both sides of the issue, the hearing examiner denied Young's claim in a Compensation Order issued on June 9, 1995 ("First Compensation Order"). The examiner did not credit Young's testimony regarding his alleged ailments, finding it "hyperbolic" and contradicted by the surveillance videotape and objective medical and psychiatric tests. The examiner also chose not to accept the diagnosis of PTSD offered by Young's treating psychologist, Dr. Podd, and his neurologist, Dr. Kurzrok, in part because they relied on what Young reported to them. Instead, the examiner credited the opinion of Dr. Schulman, a psychiatrist who evaluated Young at the request of WMATA, that Young "was attempting to imitate the symptoms he felt an individual who had been electrocuted would experience." The examiner concluded that any disability related to the June 23, 1991, incident had "resolved" by August 7, 1991, and that "any ongoing disability [Young] may have is not causally related to" the June 23, 1991, incident.
Young filed an application with the Director for review of the First Compensation Order. Pursuant to D.C. Code § 36-324 (a) (1997), Young also applied for a modification of that order on account of change in his psychological condition following the February 1992 hearing. Before addressing the application for review, the Director ordered a limited remand of the case so that the Hearings and Adjudication Section of DOES could address Young's modification request. A hearing was eventually held on that request before a second hearing examiner, who issued her Compensation Order on April 2, 1998 ("Second Compensation Order").
In the Second Compensation Order, the examiner concluded that Young had presented material new evidence of a change in his condition through the testimony of Dr. Smoller, a psychiatrist who started seeing Young on August 6, 1996. According to Dr. Smoller, while Young may have had PTSD initially following his accident, the symptoms of that illness had abated, and Young was now suffering from a progressively worsening personality change and mood disorder that manifested itself in psychotic, bizarre and disabling symptomatology, including paranoia, memory and thought disorders, depression, inappropriate affect, and outbursts of anger and irritability. Dr. Smoller believed that the degree of pathology that Young exhibited could only be explained by a diagnosis of organic brain damage: "The distractibility, the inability to focus, the need for repetition, the difficulty with memory, all are significant to me in terms of diagnosing somebody as organic." Dr. Smoller further believed that Young's organic injury was causally related to the electric shock he received on June 23, 1991. Dr. Smoller considered it significant that Young "was fine" before the accident but "not fine" after it, and that there was no evidence that Young suffered any other trauma at around that time. Although Young was on psychotropic medication and receiving psychological therapy on a weekly basis, Dr. Smoller opined that Young was too paranoid to return to work, and could not concentrate sufficiently to keep a job. Dr. Smoller also thought that no one would hire Young because of his bizarre behavior and other conspicuous symptoms.
In relying on the opinion of Dr. Smoller, the hearing examiner rejected the contrary opinion of Dr. Spodak, a psychiatrist who had examined Young and reviewed his medical records at the request of WMATA. Although Dr. Spodak believed that Young was "faking his symptoms and malingering," the examiner credited Dr. Smoller's rejoinder that Young would be unable to fake certain parts of the psychiatric evaluation and could not have sustained any false symptoms or malingered in so disruptive and psychotic a fashion over a seven year period. The examiner also noted that Dr. Smoller's opinion was confirmed by Young's wife, who testified in detail about the changes in Young's behavior since February 1992.
Having found that Young's condition had changed, and that his current condition was causally related to the electric shock that he received on June 23, 1991, the hearing examiner modified the First Compensation Order to award Young temporary total disability benefits from August 6, 1996, onward, together with medical expenses and interest on accrued benefits.
The Director consolidated WMATA's appeal of the Second Compensation Order with Young's appeal of the First Compensation Order, and issued his decision on December 8, 1998. Although the Director affirmed the first order, he reversed the finding that any on-going disability after August 7, 1991 was not work-related. The Director reversed that finding on the ground that WMATA had not presented substantial evidence in the first hearing to overcome the statutory presumption of a causal connection between Young's accident and his subsequent psychological impairments. *fn1
The Director affirmed the second order in its entirety, rejecting WMATA's argument that Young was estopped from seeking modification of the first order by the examiner's finding that his on-going disabilities were not work-related. Having reversed that finding as unsupported by substantial evidence, the Director concluded that the first order was subject to modification pursuant to D.C. Code § 36-324. The Director also concluded that the Second Compensation Order was supported by substantial evidence, primarily the expert opinion testimony of Dr. Smoller. Upholding the hearing examiner's decision to credit the opinion of Dr. Smoller over that of Dr. Spodak, the Director stated that "when confronted with conflicting medical opinions, the Hearing Examiner is free to draw any ...