On Petition for Review of a Decision of the Department of Employment Services
Before Terry, Ruiz, and Reid, Associate Judges.
The opinion of the court was delivered by: Ruiz, Associate Judge
Submitted November 9, 2000
Sibley Memorial Hospital petitions for our review of the decision of the Director of the Department of Employment Services reversing and remanding the Compensation Order denying a claim by Abdul Ghafoor for temporary total disability benefits for an injury he sustained on November 10, 1996. The Director reversed the hearing examiner's decision as not supported by substantial evidence and remanded for further findings on whether a work-related injury Mr. Ghafoor suffered in 1995 was aggravated by his commute to work, resulting in the 1996 injury. Sibley contends that the examiner's finding that the November 10, 1996 injury was a new non-work related injury was based on substantial evidence and should not have been reversed. We agree with the Director's decision that the examiner's order should be reversed, but conclude that no remand is necessary.
Abdul Ghafoor, who was employed as a medical technologist with Sibley Memorial Hospital, incurred a low back injury arising out of and in the course of his employment with Sibley on August 24, 1995. After his injury, Mr. Ghafoor sought medical care, began physical therapy three times a week and was given medication. That injury caused Mr. Ghafoor to miss work intermittently, and Sibley voluntarily paid temporary total disability benefits through October 7, 1995. Thereafter, Mr. Ghafoor returned to work full-time for over a year, until November 7, 1996. *fn1 According to Mr. Ghafoor, his back problems did not go away, however, and he experienced pain at work. He continued to be seen by his family physician, Dr. Ventzek, to whom he complained about the same back problems. In June of 1996, he went to see Dr. Ventzek and he was seen again at Commonwealth Orthopaedics and Rehabilitation later that year, on October 29, 1996, where they gave him a back brace and referred him for an MRI. On November 6, 1996, an MRI showed a "central disc protrusion with mild spinal stenosis L1-2." Dr. Ventzek opined that Mr. Ghafoor suffered from lumbar discogenic disk disease causally related to the 1995 work-related incident and his long drive to and from work.
The event that precipitated the present claim occurred on November 10, 1996, when Mr. Ghafoor experienced a flare-up of his lower back pain and suddenly collapsed while visiting family and friends. This incident forced him to be hospitalized, and he was advised not to return to work due to the severity of his lower back pain. Following the recommendation of orthopaedic specialists to whom he had been referred, Mr. Ghafoor again underwent physical therapy. At the recommendation of Dr. Ventzek and his treating orthopaedist, Dr. Maurath, who thought the long commute to work was contributing to his back problems, Mr. Ghafoor sought a new job which was closer to his home in Dale City, Virginia, and resigned his position with Sibley Hospital in January 1997. He then claimed temporary total disability benefits from November 8, 1996 through January 7, 1997.
In denying Mr. Ghafoor's claim for benefits, the hearing examiner found that Mr. Ghafoor sustained a non-compensable, non-work related new injury on November 10, 1996. The hearing examiner made this finding based on subsidiary findings that Mr. Ghafoor did not suffer a recurrence of the 1995 work injury on November 10, 1996, that Mr. Ghafoor's lower back injury arising from the 1995 work-related slip and fall had resolved within a matter of weeks, and that Mr. Ghafoor had successfully performed his regular work duties as a medical technologist for more than a year, with no injury-related absences, before the November 10, 1996 incident.
The Director determined that the hearing examiner's finding that the November 10, 1996 injury was new and not work-related was not supported by substantial evidence, and remanded with directions that the hearing examiner make findings on whether Mr. Ghafoor's commute aggravated his 1995 work-related injury.
"[I]t is the Director's final decision, not the examiner's, which may be reviewed by this court." St. Clair v. District of Columbia Dep't of Employment Servs., 658 A.2d 1040, 1044 (D.C. 1995) (per curiam). Under the District of Columbia Administrative Procedure Act, we review the Director's decision under the "substantial evidence" standard, see Washington Metro. Area Transit Auth. v. District of Columbia Dep't of Employment Servs., 683 A.2d 470, 472 (D.C. 1996), and "will not disturb the agency's decision if it flows rationally from the facts which are supported by substantial evidence in the record." Oubre v. District of Columbia Dep't of Employment Servs., 630 A.2d 699, 702 (D.C. 1993) (citations omitted). In this case, the Director determined that the hearing examiner's decision was not supported by substantial evidence that Mr. Ghafoor sustained a new injury unrelated to work, and remanded the case to the hearing examiner for consideration of the issue whether the commute to work aggravated his prior work injury. We agree that the hearing examiner's decision that Mr. Ghafoor's 1996 injury was new is not supported by substantial evidence, but disagree with the Director's remand order.
We consider first the question of our jurisdiction, which is not addressed by the parties. An order remanding the case to the hearing examiner is usually not a final appealable order. See Washington Hosp. Ctr. v. District of Columbia Dep't of Employment Servs., 712 A.2d 1018, 1020 (D.C. 1998). In the posture of this case, however, where the presumption of compensability was raised and the Director correctly determined there was no substantial evidence to support the hearing examiner's finding that Sibley overcame the presumption, there was no cause for a remand. Cf. id. (noting that agency decision could not be reviewed without factual findings). Thus, the matter was finally resolved in claimant's favor as a matter of law, and became appealable.
A claimant is entitled to a rebuttable presumption that his injury arose out of and in the course of his employment, if he produces credible evidence of an injury and of a work-related event which has the potential of causing the injury. See Whittaker v. District of Columbia Dep't of Employment Servs., 668 A.2d 844, 845 (D.C. 1995). The examiner must presume a causal relation between the present disability and the work-related injury, unless "the employer has rebutted the presumption by `evidence specific and comprehensive enough to sever the potential connection' between the two." Id. at 847 (emphasis added) (quoting Parodi v. District of Columbia Dep't of Employment Servs., 560 A.2d 524, 526 (D.C. 1989)); see also Brown v. District of Columbia Dep't of Employment Servs., 700 A.2d 787, 791 (D.C. 1997) (stating that burden shifts to employer to produce "substantial evidence" demonstrating that the disability did not arise out of and in the course of employment).
In this case, the hearing examiner invoked the presumption, noting that "there is sufficient evidence to invoke the presumption in the medical reports of Dr. Ventzek, claimant's treating physician," and that "Dr. Ventzek opined claimant suffered from lumbar discogenic disk disease causally related to the 1995 work related incident and claimant's long drive. . . ." In subsequently ruling against Mr. Ghafoor, the hearing examiner determined that Sibley provided adequate rebuttal evidence, and after weighing the evidence, concluded that because Mr. Ghafoor's 1995 work injury had ...