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Black v. District of Columbia Department of Employment Services

July 03, 2002

JERRY BLACK, PETITIONER,
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT, AND THE WASHINGTON POST, INTERVENOR.



On Petition for Review of a Decision of the District of Columbia Department of Employment Services (Dir. Dkt. No. 00-04)

Before Wagner, Chief Judge, Washington, Associate Judge, and King, Senior Judge.

The opinion of the court was delivered by: King, Senior Judge

Argued May 8, 2002

Jerry Black petitions for review of a Decision of the Director of the Department of Employment Services (DOES) affirming a Hearing and Appeals Examiner's decision to "suspend payment of temporary total disability benefits . . . ." He contends that (1) the evidence was insufficient to support suspension of a previously issued compensation order; (2) he was improperly denied payments for temporary total disability benefits while incarcerated; and (3) the Director erred in granting the employer credit for temporary total disability overpayments against any future award for wage loss. With respect to the first two contentions, we affirm. We remand for further consideration on the third.

I.

Black was awarded temporary total disability ("TTD") benefits and payment of causally related medical expenses for a work-related back injury he sustained on October 30, 1995, in a compensation order dated April 18, 1997. In late 1999, the employer moved to suspend TTD payments for the period from January 1, 1999 to October 22, 1999, based on Black's asserted failure to cooperate with vocational rehabilitation efforts and because Black voluntarily limited his income.

At the hearing on the motion to suspend, Nancy Forest, a vocational consultant for First Rehabilitation Resources, testified that claimant refused to participate in the Job Club program which prepares individuals prior to commencing a job search. Job Club required no physical exertion. In a letter dated June 18, 1999, Dr. Azer, Black's primary care physician, diagnosed Black as unable to return to his former position; however, he had reached maximum medical improvement. After receiving the physician's release, Black again refused to participate in Job Club. Finally, Black testified that he was taking care of his ill father from mid-July through October 1999 in South Carolina and was thus unable to participate in rehabilitation programs. It was revealed, however, that this testimony was false and that Black was in fact incarcerated in a correctional facility in Lorton, Virginia from July 14, 1999 to October 8, 1999, pursuant to a order by the District of Columbia Superior Court.

The examiner issued a compensation order finding that TTD payments should have been suspended from February 25, 1999 to July 14, 1999, because of Black's failure to cooperate with employer's vocational rehabilitation efforts. In addition, the examiner ruled that TTD benefits should have been suspended while Black was incarcerated from July 14, 1999 through October 8, 1999 on the ground that the fact of incarceration barred benefits. Finally, the examiner concluded that the employer was entitled to credit for any TTD benefits paid from February 25, 1999 through July 14, 1999, against any future wage loss benefits, should they be awarded. The Director affirmed the compensation order with respect to the suspension of benefits for Black's refusal to cooperate with vocational rehabilitation and with respect to the ruling regarding credit against a future award. However, on the payment during incarceration issue, the Director affirmed on different grounds. The Director concluded that because TTD benefits had been suspended prior to incarceration, that suspension continued through the period of incarceration. This petition for review followed.

II.

Before us, Black first contends that the evidence in the record was insufficient to support modification of the prior compensation order on the ground that he failed to participate in the vocational rehabilitation program. We disagree. On appeal we review agency orders under the "substantial evidence" standard. Harris v. District of Columbia Office of Worker's Compensation, 660 A.2d 404, 407 (D.C. 1995). An agency decision must be affirmed when: (1) the decision states findings of fact on each material, contested factual issue; (2) the findings are based on substantial evidence; and (3) the conclusions of law follow rationally from the findings. See D.C. Code § 36-322 (b)(2) (1997); Perkins v. District of Columbia Dep't of Employment Servs., 482 A.2d 401, 402 (D.C. 1984). Substantial evidence is relevant evidence such as a "reasonable mind might accept as adequate to support a conclusion." Giles v. District of Columbia Dep't of Employment Servs., 758 A.2d 522, 524 (D.C. 2000) (citation omitted).

In this case, the hearing examiner found that commencing with a missed appointment for vocational assessment on February 25, 1999, Jerry Black failed to cooperate with vocational rehabilitation pursuant to D.C. Code § 36-307 (d) (1997). The hearing examiner credited the testimony of Nancy Forest, the rehabilitation case manager, that Black attended his initial vocational assessment meeting but refused to participate in Job Club, and thereafter, did not meet with her, despite numerous voice mail messages and letter communications. The examiner found that Job Club did not require physical exertion, and therefore, a physician's release was not necessary as "vocational rehabilitation is beyond the scope of medical treatment." *fn1 Black did not participate in Job Club and refused to undertake vocational assessment testing even after Dr. Rida Azer, his primary care physician, stated that he could begin vocational rehabilitation. Based on these facts, we are satisfied that there was substantial evidence to support the finding of the examiner. Thus, we reject Black's claim on that ground.

We next consider Black's contention that he was incorrectly denied payments for TTD benefits while incarcerated solely because of the incarceration. While the hearing examiner found that Black was not entitled to benefits while he was in prison on that ground, the Director concluded that Black should be denied benefits during that period because "[u]nder the facts of this case, even if Claimant had not been incarcerated, he would not have been entitled to benefits as of July 14, 1999, as Claimant's temporary total disability benefits were already suspended prior to his incarceration." It is the Director's ruling that is before us for review, not the hearing examiner's.

D.C. Code § 36-307 (d) (1997) states:

. . . . If at any time during such period the employee unreasonably refuses . . . to accept vocational rehabilitation the Mayor shall, by order, suspend the payment of further compensation, medical payments, and health insurance coverage ...


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