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Muhammad v. Dist. of Columbia Dept. of Employment Services

June 28, 2001

BARI MUHAMMAD, PETITIONER,
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT,
AND VERIZON COMMUNICATIONS, FORMERLY D/B/A/ BELL ATLANTIC, WASHINGTON, D.C., INC., INTERVENOR.



Before Schwelb and Reid, Associate Judges, and Mack, Senior Judge.

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

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

Argued June 7, 2001

Bari Muhammad has asked this court to review a decision by the Director of the District of Columbia Department of Employment Services (DOES or the agency) denying him a "schedule award" *fn1 for a 25% permanent disability of the "right upper extremity" *fn2 pursuant to D.C. Code § 36-308 (3) (1997). Mr. Muhammad contends that the Director erroneously affirmed a compensation order previously issued by a DOES hearing examiner. We agree with Mr. Muhammad that certain findings by the hearing examiner that led to the denial of the schedule award were not supported by substantial evidence on the record as a whole. Accordingly, we vacate the agency's decision to the extent that it denies Mr. Muhammad a schedule award, and we remand the case to the agency for further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

Mr. Muhammad has been employed by Verizon Communications and its predecessors, Bell Atlantic and C & P Telephone Company, since 1982. After having served as a security guard for a short period, Mr. Muhammad worked as a telephone service technician from 1982 until 1992. While employed in that capacity, he sustained two job-related injuries to his lower back, one in 1989 and one in 1990. As a result of these injuries, Mr. Muhammad was placed on permanent medical restrictions that made it impossible for him to continue to work as a service technician. *fn3 In 1992, he was reassigned to a position as a computer/keyboard operator. In that capacity, Mr. Muhammad spends a large portion of his workday responding, through the use of a computer keyboard and mouse, to telephonic complaints from customers.

In the early 1990s, Mr. Muhammad began experiencing problems in both hands, including stiffness, numbness, tingling, reduced coordination, and dull, shooting pain. He did not seek treatment for this condition until April 1996, when his condition deteriorated, especially in his right hand. On April 12, 1996, Mr. Muhammad was diagnosed with bilateral carpal tunnel syndrome. Later in the same month, he informed his immediate supervisor of this diagnosis, and he explained its impact on his ability to perform his job. On May 28, 1996, Mr. Muhammad filed an Employee's Claim Application pursuant to the District of Columbia Workers' Compensation Act of 1979, D.C. Code §§ 36-301 et seq. (1997 & Supp. 2000), and he provided written notice to his employer on July 26 of the same year. *fn4

On December 12, 1996, following consultations with various doctors, both through his medical care providers at Kaiser Permanente and as requested by Verizon in connection with his compensation claim, Mr. Muhammad underwent carpal tunnel surgery on his right hand. He was released to return to work on January 20, 1997, although he continued thereafter to receive physical therapy. However, even following the surgery and physical therapy, Mr. Muhammad continued to experience problems and pain in his right hand. At the time of the hearing, on February 23, 1999, Mr. Muhammad was taking Motrin and using a wrist brace to control the symptoms on an as-needed basis. From time to time, he had to stop working, and he sometimes missed work altogether.

At the February 23, 1999 hearing, Mr. Muhammad requested temporary total disability benefits from December 11, 1996 through January 23, 1997; wage loss benefits for approximately ten days intermittently between July and September 1998; a schedule award for a 25% permanent disability of the "right upper extremity" pursuant to D.C. Code § 36-308 (3); and related medical costs. See also note 3, supra. In her compensation order, which was issued on June 30, 1999, the hearing examiner granted the requested relief in part. She awarded Mr. Muhammad temporary total disability benefits and intermittent wage loss benefits, offset against any wage loss benefits that Verizon had previously paid to Mr. Muhammad for the periods in question. The examiner also ordered Verizon to pay the related medical costs. The hearing examiner found, however, that Mr. Muhammad had not carried his burden of proving a "rateable impairment" *fn5 of his right hand and arm. Consequently, she denied Mr. Muhammad's request for a schedule award. *fn6

Mr. Muhammad filed an internal appeal to the Director in connection with the hearing examiner's ruling that he had not sustained a rateable impairment and was not entitled to a schedule award. On February 29, 2000, in a brief written opinion, the Director affirmed the compensation order. Mr. Muhammad now asks this court to review the Director's decision.

II. STANDARD OF REVIEW

Mr. Muhammad contends that the findings by the hearing examiner presently at issue were not supported by substantial evidence, and that the Director erred in adopting them. *fn7 We have held that the "Director is limited to substantial evidence review of a hearing examiner's decision." WMATA, supra note 5, 683 A.2d at 476. Substantial evidence review "presents an issue of law which this court is in a position to address without need for deference to the agency's decision." Id. (internal alteration, quotation marks, and citation omitted).

To meet the substantial evidence standard,

(1) the [hearing examiner's underlying] decision must state findings of fact on each material, ...


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