Petition for Review of a Decision of the District of Columbia Department of Employment Services
Before Schwelb, Farrell, and Glickman, Associate Judges.
The opinion of the court was delivered by: Farrell, Associate Judge
Petitioner seeks review of a decision of the District of Columbia Department of Employment Services (DOES) awarding him temporary instead of permanent total disability compensation. Among other things, he contends that the hearing examiner erred in not taking into account the opinion of petitioner's treating physician that petitioner is permanently totally disabled, and erred further in placing on petitioner the burden to disprove the availability of jobs to which he could return despite his ongoing physical condition. We conclude that a remand of the case is necessary for further consideration of the evidence by the examiner under the proper standards governing permanency of a disability and employability.
Petitioner, then employed as a truck driver by intervenor, the Federal Express Corporation (Fed Ex), was injured in 1995 when a sliding side door he was opening on a delivery van became unhinged and fell on his right foot. The resulting continuous pain made him unable to perform his normal work duties, which had required him to walk significant distances; to lift, load, unload and carry packages up to seventy-five pounds; and to drive a tractor trailer truck. As the hearing examiner found, "[t]he injury has caused [petitioner's] right foot to become permanently disfigured and misshapen, such that the sole of his foot does not provide a stable platform to support his 260 to 300 pound frame and . . . causes [him] to walk on occasions with a limp," in turn causing "additional pain and discomfort in his lower back."
Fed Ex provided temporary total disability benefits and causally related medical expenses to petitioner, but by the year 2000 took the position that he was not disabled and could work full duty. Petitioner, therefore, filed this claim with DOES seeking, among other things, permanent total disability benefits from July 1998 to the present and continuing. Following an evidentiary hearing in September 2000, a hearing examiner rejected the claim for permanent benefits but awarded petitioner temporary total disability compensation from March 1999 and continuing. The examiner began by explaining that, to demonstrate entitlement to an award for permanent total disability, a claimant "must present substantial credible evidence that (1) [his] condition is maximally medically improved, and (2) that [he] is unable to return to either [his] usual, or any other, employment as a result of the injury." The examiner found that by July 1998, petitioner had reached maximum medical improvement, a fact undisputed in the medical reports. But he rejected petitioner's claim of permanency after reviewing rehabilitation and vocational evidence presented by the parties related to the issue of employability. Comparing expert vocational assessment reports filed by Dr. Bussey for the petitioner and Edward Robinson for Fed Ex, the examiner found that
[n]either of the . . . reports is very helpful in establishing what level of employability the [petitioner] possesses. Employer's report is based upon questionable assumptions concerning [petitioner's] educational attainments, while [petitioner's] report does not reveal what . . . level of physical capacity the [petitioner] is assumed to have. Although it refers to [petitioner's] treating physicians' reports, it also makes reference to the report of the [independent medical examination] physicians, which conclude that [petitioner] can return to his pre-injury employment, and the Functional Capacity Evaluation performed at the National Rehabilitation Hospital, at the direction of the treating physician, which indicated that (1) [petitioner] gave sub-maximal effort when performing some [of] the tests administered, and (2) [petitioner] has the physical capacity to perform at least sedentary work . . . . Thus, while [petitioner's] report is insufficient to establish that there are no jobs to which [petitioner] could return, employer's report, while sufficient to rebut [petitioner's] report's conclusion, is insufficient to establish that [petitioner] is capable of earning any specific level of wages, because the author of the report testified that he had not done a labor market analysis. [Italics added.]
Moreover, despite finding that the employer had rebutted petitioner's report, the examiner did not deem petitioner partially disabled, but instead concluded that
[petitioner] has established by his credible testimony and the demonstrable deformity in his right foot that he is currently temporarily totally disabled. He has not, however, established the statutorily required elements for [permanent total disability].
Petitioner appealed the examiner's decision to the Director of DOES, and when the Director failed to issue a decision within 45 days, see D.C. Code § 32-1522 (b)(3) (2001), petitioner sought review in this court.
Petitioner argues that the examiner erred in multiple ways in denying him permanent total disability benefits. He first contends that the determination that he had reached maximum medical improvement requires automatically that his benefits be converted to permanent status. He further argues that the examiner could not properly find that he had failed the test of permanency without coming to grips with the opinion of petitioner's treating physician, Dr. Ignacio, that he is unable to return to any form of work, sedentary or otherwise, given the limitations his pain and medication impose on his activity. Third, pointing to part of the examiner's language italicized above, petitioner asserts that the examiner erroneously placed the burden of proof on him "to establish that there are no jobs to which claimant could return," contrary to our decisions holding that the employer must prove the availability of work for which a claimant is qualified.
Although we reject petitioner's initial argument as to the conclusive effect of a finding of maximum medical improvement, we agree that the examiner's failure to deal with the medical opinion of Dr. Ignacio, his current treating physician board-certified in rehabilitation medicine and pain management, runs athwart our decisions regarding the proper significance to be given such evidence. Furthermore, it is apparent to us that the examiner's discussion of the vocational reports in determining the nature and extent of petitioner's disability reflects confusion as to the correct allocation of the burden of proof on the issue of employability. As a result, we cannot determine "whether conclusions legally sufficient to support the decision flow rationally from the findings," Pickrel v. District of Columbia Dep't of ...