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Cather v. District of Columbia Department of Employment Services

October 10, 2002


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

Before Steadman, Schwelb, and Washington, Associate Judges.

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

Argued September 5, 2002

Petitioner, Michael Cather, asks us to review a decision by the Director of the D.C. Department of Employment Services (DOES) that he did not meet his burden of proof in a hearing for modification of a compensation order by showing a sufficient change of condition. We conclude that because the Director did not make findings regarding whether petitioner met his burden of proof by showing a change in economic condition, the case must be remanded.


Mr. Cather was employed by U.S. Elevator, an intervenorin this case, prior to a work-related injury on July 16, 1993. Working as an assistant elevator mechanic, he fell approximately thirty feet into an elevator shaft. After the injury, he received temporary full worker's compensation benefits until he commenced full-time employment with Goodwill Industries on July 26, 1996. At Goodwill Industries, Cather was responsible for distributing and counting towels and sheets and occasionally pushing carts with towels and sheets inside them. *fn1 During his employment from July 26, 1996 until July 12, 1997, Cather received only partial, as opposed to full, worker's compensation benefits. *fn2 After Cather voluntarily resigned from his position with Goodwill Industries, he requested reinstatement of full benefits from DOES.

On September 24, 1999, a DOES examiner, after a hearing on the matter, issued a compensation order (hereinafter "C.O.1") granting Cather permanent *fn3 partial disability benefits, finding that he was not totally disabled. The examiner also found that Cather had voluntarily reduced his income by resigning from his Goodwill Industries' position and that he was still physically capable of performing that job. Cather did not appeal this decision.

However, in March 2000, Cather did file a petition for a modification of the September 24, 1999 compensation order, claiming that his condition had changed both physically and economically since the C.O.1. As evidence of his change in physical condition, Cather presented two reports from his treating physician, Dr. McFarland. One of the reports related to a visit Cather had with Dr. McFarland before the C.O.1 and the second report related to a visit after the C.O.1. The first report, dated May 5, 1999, described Cather's shoulder as having an active elevation of 30 degrees and passive elevation of 130 degrees. The second report, dated January 5, 2000, described the shoulder as having active motion *fn4 of 20 degrees and passive motion of 70-80 degrees. In addition, the January 5, 2000 report noted that Cather was incapable of performing manual labor and that Cather claimed that he was experiencing more pain of greater duration. *fn5 In support of his argument that there had been a change in his economic condition, Cather presented evidence that the job he held at Goodwill Industries in linen services no longer existed.

A hearing was held on the modification request and on September 11, 2000 a DOES hearing examiner issued a compensation order (hereinafter "C.O.2") denying Cather's request for modification of C.O.1. The order stated that the evidence presented by Cather failed to prove a change of condition warranting such a modification. Furthermore, the examiner found that because Cather voluntarily limited his income, he was also required to show a change in vocational abilities. Thereafter, Cather appealed the examiner's determination to the Director of DOES.

The Director, concurring with the examiner that Cather had failed to prove a change of physical condition, affirmed the examiner's decision to deny Cather's request to change his disability status. Cather in appealing the Director's decision to this Court, claims that he, in fact, provided sufficient evidence of a change of physical, as well as economic, conditions to prove that he qualifies for total disability. Cather further asserts that the Director's decision that he had failed to offer sufficient evidence to shift the burden is contrary to the remedial purposes of D.C. Code § 32-1524 (2001). *fn6


In reviewing a decision by the Director of DOES we look to see: "(1) whether the agencyhas made a finding of fact on each material contested issue of fact; (2) whether substantial evidence of record supports each finding; and (3) whether the conclusions of law follow rationally from the findings." George Washington Univ. v. District of Columbia Bd. of Zoning Adjustment, 429 A.2d 1342, 1345 (D.C. 1981). We accord considerable deference to the agency's interpretation of the Worker's Compensation Act (hereinafter "WCA"). Washington Metro. Area Transit Auth. v. District of Columbia Dep't of Employment Servs., 683 A.2d 470, 472-73 (D.C. 1996).

D.C. Code § 32-1524 permits modifications of compensation orders, but does not discuss the relative burdens, if any, of the parties to such a proceeding. *fn7 The statute merely states that:

(a) At any time prior to 1 year after the date of the last payment of compensation or at any time prior to 1 year after the rejection of a claim, . . . the Mayor may, upon his own initiative or upon application of a party in interest, order a review of a compensation case pursuant to the procedures provided in ยง 32-1520 where there is ...

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