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Fontenot v. District of Columbia Department of Employment Services

August 15, 2002

PERRY FONTENOT, PETITIONER
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT PERSONNEL ONE, INC. AND KEMPER INSURANCE COMPANIES, INTERVENORS



Petition for Review of a Decision of the District of Columbia Department of Employment Services (Dir. Dkt. 00-59)

Before Terry, Steadman, and Schwelb, Associate Judges.

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

Argued January 7, 2002

Petitioner seeks review of an order of the District of Columbia Department of Employment Services ("DOES") which denied his request for workers' compensation benefits for alleged job-related hypertension and stress-related disability. He argues that his employer did not present substantial evidence to rebut the presumption that his injuries arose out of and in the course of his job. Because the appeals examiner's decision was based on a document whose purported date of 1994 is most likely erroneous on its face and hence cannot be relied upon as substantial evidence, we reverse the order and remand the case to the DOES for further proceedings.

I.

Petitioner, Perry Fontenot, was employed by Personnel One, Inc., a division of Shannon and Luchs, a property management company. He worked as a painter and plasterer, refurbishing apartments at Howard Manor, one of the company's properties. As time went on, Mr. Fontenot gradually took on more responsibility as the maintenance staff at Howard Manor changed and other workers left their positions or were discharged. Fontenot alleged that the reduction in staff, coupled with his increased responsibilities, caused stress and hypertension for which he sought workers' compensation.

Before the compensation hearing, the parties stipulated that Mr. Fontenot's injuries occurred on November 24, 1997, when he experienced pain in his left arm and chest. He went to a hospital for tests, including an electrocardiogram. After these tests were completed, the hospital sent him home and advised him to see his own doctor. Soon thereafter Mr. Fontenot visited his personal physician, Dr. Thomas Gaiter, who diagnosed him with hypertension and put him on medication. Dr. Gaiter also ordered him to stay home from work, and later he wrote a series of physician's notes to Mr. Fontenot's employer to enable him to remain on sick leave.

The contested issues at the hearing before an appeals examiner were whether Mr. Fontenot's injury arose out of and in the course of his job, and whether there was a causal relationship between the job and the injury. At the hearing, both Mr. Fontenot and Larry Frelow, the property manager for Howard Manor, testified about Fontenot's duties as a maintenance man. In addition, the parties submitted various documents, including Mr. Fontenot's medical records and doctors' statements.

After the hearing, the appeals examiner issued a compensation order in which he found that Mr. Fontenot had made an initial showing sufficient to invoke the statutory presumption of compensability under D.C. Code § 32-1521 (2001). The examiner also concluded, however, that the employer had presented evidence sufficient to overcome the presumption that Mr. Fontenot's injuries arose from his employment. To support this conclusion, the examiner relied on a document prepared by Dr. Gaiter which bore a handwritten date of "6/23/94." This document reflects a diagnosis of hypertension at that time, which was more than three years before the stipulated date of injury.

The appeals examiner's order became final after the director of DOES failed to rule on Fontenot's application for review within forty-five days of its filing. See D.C. Code § 32-1522 (b)(2) (2001). Fontenot then filed a petition for review in this court.

II.

This court's task on review of a workers' compensation order is generally limited to determining whether there is substantial evidence to support the final decision of the DOES. See D.C. Code § 2-510 (a)(3)(E) (2001); Sturgis v. District of Columbia Dep't of Employment Services, 629 A.2d 547, 551 n.3 (D.C. 1993); Dell v. District of Columbia Dep't of Employment Services, 499 A.2d 102, 106-107 (D.C. 1985). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).

In any contested case, a hearing examiner's decision must include findings of fact and conclusions of law, which must be "supported by and in accordance with the reliable, probative, and substantial evidence." D.C. Code § 2-509 (e). "This court has refashioned these requirements into a three-part test for administrative decisions in contested cases: (1) the decision must state findings of fact on each material, contested factual issue; (2) those findings must be based on substantial evidence; and (3) the conclusions of law must follow rationally from the findings." Perkins v. District of Columbia Dep't of Employment Services, 482 A.2d 401, 402 (D.C. 1984). When the agency fails to make a finding on a material, contested issue, "this court cannot fill the gap by making its own determination from the record, but must remand the case for findings on that issue." Colton v. District of Columbia Dep't of Employment Services, 484 A.2d 550, 552 (D.C. 1984).

The appeals examiner in this case found that Mr. Fontenot's disabling medical condition - hypertension and stress - arose more than three years before November 24, 1997, the stipulated date of his injury. The examiner based this finding primarily upon a form completed by Dr. Gaiter and dated June 23, 1994, which reported a diagnosis of hypertension and stress. Our examination of this document, however, leads us to conclude, for ...


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