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Upchurch v. District of Columbia Dept. of Employment Services

October 25, 2001


Before Ruiz, Reid and Glickman, Associate Judges.

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

Petition for Review of a Decision of the Department of Employment Services, Office of the Director

Argued September 13, 2001

Petitioner, Robert Upchurch, appeals the decision of the Director of the District of Columbia Department of Employment Services to affirm the denial of disability benefits to Upchurch under the District of Columbia Workers' Compensation Act (Act). Upchurch's claim for disability compensation arose from an on-the-job work injury, which occurred while he was employed with The Washington Post (Post). Upchurch alleges that the Director erred, as a matter of law, when he concluded that because Upchurch had been terminated from his employment with the Post, there was substantial evidence for the hearing examiner to conclude that he had no compensable wage loss due to his work injury. Upchurch also contends that the hearing examiner erred, as matter of law, in concluding that there was no medical evidence that Upchurch had been disabled due to his injury without considering the deposition testimony to the contrary of one of Upchurch's treating physicians. We remand the case to the agency for consideration of the entire record and to determine the basis for the Director's decision affirming the denial of the petitioner's claim for disability compensation.


On January 26, 1998, Upchurch slipped and fell while pushing some papers into a press at the Post. At that time, he worked "on-call" during the evening shift. Upchurch promptly reported to the Post's health center and advised the nurse on duty that he had slipped on some grease on the floor of his work area and had hurt his left lower back and hip. The nurse referred him to the Washington Hospital Center. After being seen at the Washington Hospital Center's emergency room, Upchurch was released to return to work on the following day, but, with the exception of a shift on January 31, 1998, did not attempt to do so.

Following Upchurch's fall, there were numerous efforts by the Washington Post Health Center to contact the petitioner regarding his work status. *fn1 During these attempts, the petitioner was advised by the health center nurse that he would need a disability slip to take to a doctor and return to the health center in order to begin receiving his disability compensation. Despite this request by the health center nurse, and Upchurch's promises that he would do so, Upchurch did not seek medical attention and did not return a disability certificate until after he was terminated by the Post. *fn2

On February 23, 1998, the petitioner was terminated from his position at the Post for failing to keep his supervisor apprised of his work status and failing to follow the procedures of the department. *fn3 The following day, he sought medical attention for his back injury from Dr. Philip Mussenden, M.D. Dr. Mussenden evaluated the petitioner, provided him with a disability slip which was returned to the Post's health center and, in March of 1998, referred him to Dr. Uchenna Nwaneri, M.D., an orthopedic surgeon. Dr. Nwaneri evaluated Upchurch on March 27, 1998, and prescribed physical therapy sessions which the petitioner attended during March and April. The petitioner, however, had recurring back pain and returned on several occasions to Dr. Nwaneri's office for further medical evaluation in 1999. In September of that year, Dr. Nwaneri indicated in a medical report that the patient had a small, cental disc herniation and placed restrictions on his physical activities. Later, in a deposition taken in October, 1999, Dr. Nwaneri stated that he felt Upchurch had been physically unable to return to work at the Post since January 26, 1998, the date of the on-the-job accident.

At a formal hearing on the issue of disability compensation before an examiner of the Department of Employment Services, the parties addressed the nature and extent of Upchurch's disability, whether Upchurch was entitled to "wage-stacking" under the Workers' Compensation Act, and whether penalties under the Act should be assessed against the Post for bad faith delay in payment of compensation. See D.C. Code §§ 32-1501 (8), 32-1515 (f) and 32-1528 (b) (2001), formerly D.C. Code §§ 36-301 (8), 36-315 (f) and 36-328 (b) (1981). At the hearing, testimony was heard from the petitioner, the petitioner's immediate supervisor at the Washington Post (Vaughan Valentine), a claims representative for the third party administrator, and petitioner's current and past employers. Numerous documents were admitted into evidence, including all pertinent physician reports, records from the Washington Post Health Center and the deposition testimonies of Dr. Mussenden and Dr. Nwaneri. The hearing examiner, after a full evidentiary hearing on the matter, *fn4 ultimately found that the evidence presented by Upchurch was not "sufficient to meet his burden of establishing a wage loss resulting from a work related injury," and did not establish an "entitlement to disability benefits under the Act." According to the hearing examiner, there was "no medical evidence of record" to suggest that Upchurch was not able to work at his position at the Post, noting that "Dr. Nwaneri's reports do not mention physical restrictions claimant has as a result of the work injury until his report of September 23, 1998." The examiner further explained that "any medical evidence which can be interpreted as establishing any disability is undermined by [the] claimant's continued employment as a cable installer or freight delivery person." *fn5

The Director of the Department of Employment Services issued a decision affirming the hearing examiner's conclusions regarding Upchurch's disability compensation claims. As a basis for his decision, the Director noted that:

The Hearing Examiner found, on the nature and extent of disability, that [Upchurch] had no wage loss after January 26, 1998, due to the work injury. This finding, in the Director's opinion, is supported by substantial evidence of record because [Upchurch] was fired from his job for reasons not related to the work injury.

The petitioner filed a timely petition for review of the Director's decision with this court.


This court must affirm an agency decision unless it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. See Charles P. Young Co. v. District of Columbia Dep't of Employment Servs., 681 A.2d 451, 456-57 (D.C. 1996). In a workers' compensation case, we defer to the determination of the Director of the Department of Employment Services, as long as the Director's decision flows rationally from the facts, and those facts are supported by substantial evidence on the ...

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