April 26, 2001
MARIE CLARK, PETITIONER,
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT, BELL ATLANTIC - WASHINGTON, D.C., INC., INTERVENOR.
Before Steadman, Ruiz, and Glickman, Associate Judges.
The opinion of the court was delivered by: Ruiz, Associate Judge
Petition for Review of a Decision of the District of Columbia Department of Employment Services
Argued October 12, 1999
Petitioner, Marie Clark, appeals from a decision of the Director of the District of Columbia Department of Employment Services (DOES) denying her claim for temporary total disability benefits from July 14, 1995, through August 28, 1995, medical expenses, and accrued interest on benefits, based on aggravation of temporomandibular joint dysfunction (TMJ) she claims resulted from her work as a telephone operator. After a hearing, the hearing examiner concluded that claimant's condition did not arise out of, or in the course of, her employment, and therefore denied the claim. In her appeal of the examiner's order, petitioner argued that the examiner "neither discussed nor analyzed" evidence of aggravation. The Director affirmed the hearing examiner's decision. Petitioner argues that the hearing examiner and Director both erred because even though they correctly found that her TMJ was not caused by her workplace duties (which she does not dispute), they did not consider whether her admittedly existing TMJ condition was aggravated by having to wear a headset in order to perform her duties, as found by her treating physician. We conclude that the hearing examiner and the Director failed to take into consideration or explain the reasons for rejecting the deposition testimony of petitioner's treating physician and, therefore, remand for a thorough review of the record, further findings of fact, and an amended compensation order.
I. Factual History
Petitioner worked as a directory assistance operator for Bell Atlantic, D.C. (and its predecessor, C & P Telephone) for fifteen years. She began experiencing pain in her jaw and on the right side of her face in September 1994, and visited her family dentist, Dr. John Jones, seeking relief. Prior to September 1994, claimant had never been involved in any kind of accident or incident where she injured her jaw, face, head, neck or shoulders. Dr. Jones referred her to Dr. Daniel Howard, an oral surgeon, who examined her, took x-rays, diagnosed her with TMJ, and instructed her to stop wearing the telephone headset which she wore while at work.
Ms. Clark notified her supervisor of the restriction, and her employer replaced the headset with a model that did not have a piece inserted into the ear. When her symptoms did not go away, Dr. Howard provided a bite guard for her to wear at night, but this did not alleviate her pain. Dr. Howard concluded that petitioner's condition warranted surgery, and referred her to Dr. Boucree, a surgeon specializing in TMJ problems.
Dr. Boucree first examined Ms. Clark on June 20, 1995. At that time, Ms. Clark did not talk to Dr. Boucree about whether her condition was aggravated by the ear piece she wore at work. The examination showed that claimant was missing most of her teeth, which caused an overclosure of the lower jaw and TMJ. Dr. Boucree recommended surgery. On July 14, 1995, petitioner underwent surgery to correct the TMJ condition and returned to work on August 28, 1995.
In a deposition taken on May 8, 1996, Dr. Boucree explained that Ms. Clark had been referred to him by Dr. Howard, who was treating her for correction of a deformity of her upper jaw which he referred to as "vertical loss of the mid-face" caused by the loss of her teeth. Dr. Howard was to correct the problem by grafting additional bone into place to increase the vertical height of the face and restore a proper bite, but needed Dr. Boucree to address the TMJ problem first. Dr. Boucree explained that when the teeth are lost, the part of the jaw which supports the teeth atrophies, and eventually the upper and lower jaws come to rest on one another, closer than they were meant to, causing loss of the mid-face height. In addition, this can cause the end of the jawbone to rest on the tissues of the joint which hold the nerves and blood, causing pain. Dr. Boucree performed surgery to correct the TMJ problem, and recommended that she wait before returning to work for the surgery wound to heal completely. He also opined that the headset was aggravating her existing problems with TMJ. *fn1
Dr. Steven Guttenberg examined Ms. Clark in November 1995, after her surgery, at the request of the employer prior to the hearing. In a deposition taken on May 15, 1996, Dr. Guttenberg opined that wearing the headset at work had neither caused nor exacerbated Ms. Clark's TMJ problem and that wearing the headset would not cause her to experience symptoms that she would not have otherwise experienced. *fn2 Dr. Guttenberg explained that during his examination he had found claimant to be missing all of the teeth on the right side of her mouth. She had an ill-fitting denture which was hidden beneath her upper lip, evidence that her upper jaw was melting away and causing her dentures not to fit. He concluded after reviewing the x-ray and magnetic resonance imaging (MRI) reports, neither of which showed any pathology, and examining Ms. Clark, that her TMJ problems were likely caused by the fact that she was missing her teeth, which caused overclosure of her lower jaw. *fn3
II. Standard of Review
This court must affirm an agency decision unless it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. See D.C. Code § 1-1510 (a)(3) (1999); Charles P. Young Co. v. District of Columbia Dep't of Employment Servs., 681 A.2d 451, 455-56 (D.C. 1996). In a worker's compensation case, the court defers to the determination of the Director of DOES as long as the Director's decision flows rationally from the facts, and those facts are supported by substantial evidence on the record. See Washington Metro. Area Transit Auth. v. District of Columbia Dep't of Employment Servs., 683 A.2d 470, 472 (D.C. 1996) (WMATA I). If so, the court's consideration ends. See Shepard v. District of Columbia Dep't of Employment Servs., 514 A.2d 1184, 1186 (D.C. 1986). "Substantial evidence is more than a mere scintilla." Children's Defense Fund v. District of Columbia Dep't of Employment Servs., 726 A.2d 1242, 1247 (D.C. 1999) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). "It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. If substantial evidence exists to support the Director's finding, the existence of substantial evidence contrary to that finding does not permit the Court to substitute its judgment for the Director's. See Gary v. District of Columbia Dep't of Employment Servs., 723 A.2d 1205, 1209 (D.C. 1998). The Director's legal rulings are reviewed de novo. See WMATA I, 683 A.2d at 472.
In evaluating the evidence of record, the agency must take into account the testimony of a treating physician, which is ordinarily preferred over that of a physician retained solely for litigation purposes. See Harris v. District of Columbia Dep't of Employment Servs., 746 A.2d 297, 302 (D.C. 2000); Stewart v. District of Columbia Dep't of Employment Servs., 606 A.2d 1350, 1353 (D.C. 1992). Notwithstanding a "preference" for the treating physician's testimony over that of a physician hired to evaluate a workers' compensation claim, the hearing examiner, as judge of the credibility of witnesses, may reject the testimony of a treating physician and decide to credit the testimony of another physician when there is conflicting evidence. Canlas v. District of Columbia Dep't of Employment Servs., 723 A.2d 1210, 1211-12 (D.C. 1999). In so doing, the hearing examiner must give reasons for rejecting a treating physician's testimony. See id.; McKinley v. District of Columbia Dep't of Employment Servs., 696 A.2d 1377, 1386 (D.C.1997) (equivocal nature of the treating physician's testimony sufficient basis for hearing examiner to reject that evidence and conclude that the claimant's injury was not work-related).
It is well established that in the District of Columbia, a disability resulting from the aggravation of a pre-existing condition is compensable under the Workers' Compensation Act, see D.C. Code § 36-308(6)(A) *fn4 ; Washington Hosp. Ctr. v. District of Columbia Dep't of Employment Servs., 744 A.2d 992, 997 (D.C. 2000), even where non-employment factors contributed to claimant's malady, see Ferreira v. District of Columbia Dep't of Employment Servs., 667 A.2d 310, 312-13 (D.C. 1995) (Ferreira II); Ferreira v. District of Columbia Dep't of Employment Servs., 531 A.2d 651, 660 (D.C. 1987) (Ferreira I) (quoting Wheatley v. Adler, 132 U.S. App. D.C. 177, 181, 407 F.2d 307, 311 (1968)).
Ms. Clark argues that the hearing examiner and Director erred because they neglected to consider whether her existing TMJ condition was aggravated by having to wear the telephone headset in performing her job as a telephone operator. In evaluating a worker's compensation claim, there is a presumption that the claim falls within the coverage of the statute, see D.C. Code § 36-321 (1); Ferreira II, 667 A.2d at 312, if the claimant provides some evidence of a disability and a workplace condition which has the potential to have caused the disability. See Ferreira I, 531 A.2d at 660. Once aggravation is proved the presumption of compensability will be applied to establish the causal connection necessary to prove a compensable claim. See Washington Vista Hotel v. District of Columbia Dep't of Employment Servs., 721 A.2d 574, 579 (D.C. 1998). The presumption may be rebutted by evidence specific and comprehensive enough to sever the causal connection. See Charles Whittaker v. District of Columbia Dep't of Employment Servs., 668 A.2d 844, 845 (D.C. 1995).
In this case the hearing examiner and the Director of DOES gave claimant the benefit of the presumption that her TMJ was caused by her work because she showed a disability, her TMJ condition, and claimed that wearing her headset, which was a condition of her employment, aggravated the TMJ. The hearing examiner, however, found that the presumption of a causal connection between the TMJ and the workplace was rebutted by Dr. Guttenberg's specific and comprehensive testimony that use of the headset was not causally related to her disability and, therefore, went on to consider the weight of the evidence independent of the presumption. *fn5 In the compensation order, the hearing examiner appears to find only that the TMJ "was not causally related to her use of a headset at work." Petitioner does not dispute this, but argues that neither the examiner nor the Director considered whether the headset aggravated her TMJ, a condition she acknowledges was initially caused by factors unrelated to her work.
The hearing examiner recognized that medical opinions of a treating physician, such as Dr. Boucree, are to be given preference in compensation cases. In the compensation order, the hearing examiner stated that "Dr. Boucree's [the treating physician's] report of July 11, 1995 failed to offer a medical rationale for any connection between claimant's TMJ problems and her use of [a] headset at work." He also stated that "Dr. Boucree to whom claimant had been referred by her family dentist failed to render an opinion regarding this relationship." Consequently, the hearing examiner relied on Dr. Guttenberg's opinion that there was no causal connection between petitioner's use of a telephone headset and her TMJ. This overlooked the full record before the hearing examiner. Although neither Dr. Howard, the dentist, nor Dr. Boucree, the surgeon, stated an opinion in their initial treatment reports made prior to surgery about the causal or aggravating factors of petitioner's condition, in his deposition taken on May 8, 1996, Dr. Boucree, though agreeing with Dr. Guttenberg that the cause of claimant's TMJ was the loss of her teeth, clearly opined that wearing the headset with an earpiece that went into the ear aggravated her underlying condition and caused pain and irritation. *fn6 The hearing examiner also should have considered the inference that, because Dr. Howard advised Ms. Clark to stop wearing the headset, he thought the headset aggravated her condition. Therefore, the hearing examiner had two treating physicians' opinions to consider, but did not do so.
The decision of the Director of the Department of Employment Services continued misreading of the record. In her decision, she stated
At no time during preoperative and postoperative visits did Dr. Boucree opine that claimant's condition was work related or was precipitated or exacerbated by prolonged use of a telephone headset. His many reports failed to indicate any objective medical evidence substantiating claimant's claim that her condition is attributable to her headset at the workplace.
While the Director's observation is correct that Dr. Boucree did not address in his clinical records whether petitioner's condition was work-related, he had no reason to do so because he was not aware at the time of his treatment of Ms. Clark that an opinion was required. *fn7
As neither the hearing examiner nor the Director refers to Dr. Boucree's deposition testimony that wearing the headset aggravated her TMJ, or explains why it was rejected, we cannot be confident that either agency official properly considered his deposition testimony in coming to a decision. *fn8 We remand this case for consideration of the entire record by the agency, in accordance with this opinion. In remanding, we express no view on the merits of petitioner's claim of aggravation, as it is for the hearing examiner to evaluate the record in the first instance. See Hill v. District of Columbia Dep't of Employment Servs., 717 A.2d 909, 912 (D.C. 1998) ("Administrative and judicial efficiency require that all claims be first raised at the agency level to allow appropriate development and administrative response before judicial review.") (citation omitted).
Reversed and remanded