On Petition for Review of a Decision of the District of Columbia Department of Employment Services
Before Ruiz and Reid, Associate Judges, and Belson, Senior Judge.
The opinion of the court was delivered by: Ruiz, Associate Judge
Submitted September 9, 2003
Petitioner asks us to review a decision by the director of the District of Columbia Department of Employment Services. The proceedings below arose from a claim for workers' compensation benefits filed by Dwayne Leigh against Marriott International under the District of Columbia Workers' Compensation Act of 1979, D.C. Code §§ 32-1501 et seq. (2001). Follow ing a formal hearing, the Administrative Law Judge declined to award benefits for continuing medical care, finding that Mr. Leigh's current medical condition is not causally connected to his work-related injury. On review, the director found that the ALJ's order was not supported by substantial evidence, reversed the ALJ's order denying benefits, and awarded benefits for continuing medical care. Marriott then sought our review pursuant to D.C. Code § 32-1522 (b)(3) (2001). Because we agree with petitioner that the director exceeded his permissible scope of review, we reverse and remand.
Marriott International hired Dwayne Leigh in October of 2000 as a loss prevention and security officer, which required him to patrol the hallways of a Marriott hotel. In the course of his rounds, Mr. Leigh also distributed "folios," which contained bills for hotel services. This activity required Mr. Leigh to bend forward repeatedly to slip the folios under guest room doors.
On August 2, 2001, Mr. Leigh sustained injuries to his neck and lower back in an automobile accident unrelated to his employment with Marriott. These injuries prompted Mr. Leigh to seek the care of Dr. Roy Rosenthal, an orthopaedic physician, who advised Mr. Leigh to refrain from working until October 25, 2001. Thereafter, Mr. Leigh was free to return to "light duty" work that did not involve repetitive stooping or bending. Marriott accommodated Mr. Leigh's light duty needs by allowing him to return to sedentary activities. Shortly thereafter, however, Mr. Leigh resumed his regular duties, including patrolling the hallways and delivering folios.
On December 15, 2001, while bending forward to slip a folio under a guest room door, Mr. Leigh felt a sudden, severe recurrence of lower back pain similar in kind to the pain experienced after the automobile accident. As a result, Mr. Leigh sought the care of Dr. Rosenthal, who gave him a disability slip indicating that he could return to work without restriction on March 11, 2002. Mr. Leigh in fact returned to work on March 13, 2002. During consultations on April 15 and 23, Dr. Rosenthal continued to permit Mr. Leigh to perform his regular work duties, but indicated that magnetic resonance imaging (MRI) should be perform ed in order to help assess Mr. Leigh's continuing complaints of back pain. Mr. Leigh again met with Dr. Rosenthal on June 4, 2002, at which time Dr. Rosenthal recommended a period of "work hardening." It is unclear if any such program was undertaken.
On April 29, 2002, and at Marriott's request, Mr. Leigh was examined by Dr. David Johnson for purposes of an independent medical evaluation. After performing his own physical examination of Mr. Leigh, Dr. Johnson determined that the work incident of December 15 caused a temporary aggravation of the prior back injury. However, Dr. Johnson also determined that the aggravation already had resolved itself, and that Mr. Leigh's current symptoms "are more likely derived from the original non-work-related injury of 8/01 [the automobile accident] rather than the [work-related] incident of 12/15/01." Dr. Johnson later confirmed this conclusion in a report dated June 1, 2002, after having reviewed the full medical file from Dr. Rosenthal. Dr. Johnson did concur, however, with Dr. Rosenthal's recommendation for an MRI, and opined that Mr. Leigh should not return to full-duty work until the procedure was performed. The MRI was never done.
Mr. Leigh filed an application with the Department of Employment Services in February of 2002, claiming (1) total disability benefits for the period of December 16, 2001 through March 13, 2002, (2) causally related medical expenses, and (3) authorization for continuing treatment, including an MRI, as recommended by Dr. Rosenthal. Following a formal hearing on the matter, an ALJ issued a compensation order concluding that Mr. Leigh had been accidentally injured in the course of his employment on December 15, 2001 and that he was totally disabled for the period claimed. The ALJ also concluded that Mr. Leigh's current back injury is un related to the work incident. This latter conclusion was based on a finding that the temporary exacerbation of Mr. Leigh's condition attributable to the December 15 work-related incident "had resolved [itself] by the date of the [independent medical evaluation] at the latest." Accordingly, the ALJ entered an order awarding Mr. Leigh total disability benefits for the period running from December 16, 2001 through March 13, 2002, but denying as causally unrelated the claim for further care as recommended by Dr. Rosenthal.
On review, the director of the Department of Employment Services partly reversed the compensation order, concluding that "the [ALJ's] finding that Claimant's current back condition is unrelated to his work injury and there is no need for further medical care and treatment is not supported by substantial evidence." The director based his decision on several facts taken from his own review of the record, specifically: (1) Dr. Rosenthal first mentioned the need for an MRI on April 15, 2002, and has consistently reiterated the request since then; (2) even Dr. Johnson supported the recommended MRI in his April 29 report; (3) Dr. Johnson opined that Mr. Leigh should not return to full-duty work until he had an MRI; (4) Dr. Rosenthal felt Mr. Leigh needed a work hardening program before ...