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Landesberg v. District of Columbia Dept. of Employment Services

March 28, 2002

JANET RUBIN LANDESBERG, PETITIONER,
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT.
WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, INTERVENOR.



Before Wagner, Chief Judge, and Terry and Washington, Associate Judges.

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

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

Argued September 6, 2000

This matter comes before the court on petitioner, Janet Landesberg's petition for review of the Department of Employment Services' (DOES) denial of disability benefits pursuant to the District of Columbia Workers' Compensation Act of 1979 (the Act), as amended, D.C. Code § 36-301 et seq. (1997 Repl.). On appeal, Landesberg argues that the hearing examiner's decision denying her benefits is not supported by substantial evidence in the record. We affirm in part, and reverse and remand in part.

I.

Landesberg filed a timely claim for disability benefits to DOES, and a full evidentiary hearing was held on May 30, May 31 and June 3, 1996, before hearing examiner David L. Boddie. Several of Landesberg's claims for disability benefits were denied, and the decision of the hearing examiner was affirmed by the Director of DOES.

Landesberg worked for the Washington Metropolitan Area Transit Authority (WMATA) as an assistant general counsel for approximately eleven years. While employed by WMATA, Landesberg suffered separate injuries that she claimed were job related. On January 17, 1990, Landesberg was testing the operation of bus doors in preparation for a trial, and allowed another employee of WMATA to open and close the doors upon her several times while pictures were taken. As a result, Landesberg was struck several times on her sides, including her shoulders and hips, by the bus doors. She alleged injuries to her back, shoulders, hips, and neck, as well as to a cervical disc. She sought treatment for her lower back from a neurosurgeon, Michael W. Dennis, M.D. on January 30, 1990. In February 1990, she began experiencing neck pain and sought chiropractic treatment from L.G. Sassadeck, D.C. Landesberg was also seen for a neurological evaluation by Ramon Jenkins, M.D. on February 20, 1990, complaining of lower back pain. On March 2, 1990, Landesberg received her second and final chiropractic neck treatment from Dr. Sassadeck. In April 1990, Landesberg began receiving treatment from Thomas Roselle, D.C. for neck pain. On March 7, 1990, Landesberg sought psychiatric counseling from David Wood, M.D. for treatment of post-traumatic depressive symptoms. Landesberg returned to work after the incident in November 1990, on a part-time, light duty basis, with restrictions on overhead lifting.

On January 17, 1992, also while working as an assistant general counsel for WMATA, Landesberg "misstepped" and jarred her spine while stepping down from a jury box in the Superior Court during a scheduling conference. She alleged injuries to her neck, back and hip. Landesberg did not take any leave from work, but she did receive medical treatment for the alleged injuries in early June 1992. She sought treatment from Dr. Dennis and Dr. Roselle.

On July 16, 1992, while traveling to take a deposition, Landesberg was struck on the left temple and left shoulder by a falling suitcase on an airport shuttle bus. Landesberg claimed that the accident caused her traumatic brain injury, visual impairments, cervical spine injury, left shoulder injury, as well as left hip and lower back injuries. She returned to work in October 1992, and subsequently resigned from her employment with WMATA on April 3, 1993. She alleges that she resigned because of WMATA's retaliatory actions toward her.

II.

"We will not disturb an agency decision if it rationally flows from the factual findings on which it is based and if those findings are supported by substantial evidence in the record." Children's Defense Fund v. District of Columbia Dep't of Employment Servs., 726 A.2d 1242, 1247 (D.C. 1999). The Director of DOES conducts a limited review of decisions of a hearing examiner "to determine whether the examiner's findings are supported by substantial evidence" in the record. Id. "`This court likewise is limited to determining whether the Director's order is in accordance with the law and supported by substantial evidence in the record.'" Id. (citation omitted). "The mere existence of evidence . . . contrary [to the hearing examiner's findings] even if substantial does not permit this court to substitute its judgment for that of the agency." Id. at1252. We will, therefore, affirm the Director's ruling unless it is arbitrary, capricious, or otherwise an abuse of discretion and not in accordance with the law. See Teal v. District of Columbia Dep't of Employment Servs., 580 A.2d 647, 650 (D.C. 1990) (citing D.C. Code § 1-1510 (a)(3)) (other citation omitted). Furthermore, "[c]redibility determinations of a hearing examiner are accorded special deference by this court." *fn1 Id. at 651.

III.

In this jurisdiction, when a claimant presents some "initial demonstration" of an employment connection to his or her disability, the claimant is entitled to a presumption under the Act that his or her injury arose out of and in the course of his or her employment. See Ferreira v. District of Columbia Dep't of Employment Servs., 531 A.2d 651, 655 (D.C. 1987). This presumption is designed to effectuate the humanitarian purposes of the statute, reflecting a strong legislative policy favoring awards in arguable cases. Id. "`To defeat a claim for compensation the employer must rebut the presumption by offering [substantial] evidence that the claim is not one `arising out of and in the course of employment.'" Dunston v. District of Columbia Dep't of Employment Servs., 509 A.2d 109, 111 (D.C. 1986) (citation omitted). "Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Stewart v. District of Columbia Dep't of Employment Servs., 606 A.2d 1350, 1351 (D.C. 1992). The hearing examiner is allowed to draw any reasonable inference from the evidence presented. See George Hyman Constr. Co. v. District of Columbia Dep't of Employment Servs., 498 A.2d 563, 566 (D.C. 1985). The Act, however, does not afford the claimant a presumption regarding the nature and extent of his or her disability. See Dunston, 509 A.2d at 111. Instead, the claimant maintains the burden of proving the nature and extent of her disability. See id. The Act is a wage loss statute, and disability means injury that results in wage loss. See Dodson v. District of Columbia Dep't of Employment Servs., 697 A.2d 1214, 1219 (D.C. 1997). The hearing examiner found that Landesberg's only claim for loss of wages was for temporary partial disability from October 26, 1992 to ...


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