Petition for Review of a Decision of the District of Columbia Department of Employment Services (Dir. Dkt. 98-46)
Before Steadman and Reid, Associate Judges, and Pryor, Senior Judge.
The opinion of the court was delivered by: Reid, Associate Judge
Argued September 17, 2003
Jo Anne Robinson, Interim Corporation Counsel at the time the statement was filed, and Charles L. Reischel, Deputy Corporation Counsel at the time the statement was filed, filed a statement in lieu of brief for respondent.
decision of the Director of the District of Columbia Department of Employment Services ("the Director of DOES" or "the Director") affirming the 1998 compensation order of the hearings and appeals examiner ("hearing examiner") which reduced her weekly disability benefits. She began to receive disability benefits after being injured while performing nursing duties at the Greater Southeast Community Hospital ("GSECH"). The hearing examiner in essence approved GSECH's reduction of Ms. Morrison's disability benefits after concluding that she did not accept a job offered to her by another health facility which was commensurate with her physical abilities. Ms. Morrison filed a timely petition for review of the DOES decision. *fn1 She contends that the job offered to her was not commensurate with her physical limitations, and further, that it was not suitable because she would have been compelled to give up her part-time position. We conclude that the agency's decision that Ms. Morrison rejected a job offer commensurate with her physical abilities is based on substantial record evidence. However, because the Director of DOES did not address squarely the second argument presented to him - that the position offered was not suitable because it would have compelled Ms. Morrison to give up her part-time position - we are constrained to remand the case to the agency for consideration of that issue.
Before the compensation hearing on Ms. Morrison's workers' compensation claim, the parties stipulated that: "On December 7, 1994, [M s. Morrison] suffered a traumatic injury and/or aggravation or exacerbation of an existing injury to her back and neck arising out of and in the course of her employment with self-insured employer, [GSECH]." The stipulation further specified that at the time of her injury, Ms. Morrison "had an average weekly wage from [GSECH] of $943.29 with a corresponding compensation rate of $628.86." In addition, Ms. Morrison held a part-time position with Jackson Medical Group and received "an average weekly wage . . . of $272.98 with a corresponding compensation rate of $181.98." As a result of her part-time position, the stipulation recognized that Ms. Morrison "had a stacked average weekly wage of $1,216.27 with a corresponding compensation rate of $679.17"; and that she "is entitled to temporary partial disab ility . . . benefits for the period of August 24, 1995 to the present and continuing. . . ."
Based upon Ms. Morrison's temporary partial disability, and the continuation of her part-time employment with the Jackson Medical Group, GSECH agreed to make a lump sum payment, and "the amount of $628.86 every week beginning on July 1, 1996 and continuing during the period that [Ms. Morrison] participates in a program of vocational rehabilitation and/or job placement. . . ." In June 1997, however, GSECH reduced Ms. Morrison's $628.86 weekly benefit to $539.76. As a result of Ms. Morrison's challenge to the reduction, a formal hearing was held on January 27, 1998.
The hearing examiner found that GSECH reduced Ms. Morrison's weekly disability benefit because of her "refusal to accept suitable employment at St. Anne's [Infant and Maternity Home] ["St. Anne's"]." GSECH had "provided [Ms. Morrison] with vocational rehabilitation services from September 17, 1996 to August 6, 1997." These services resulted in an offer of tw o jobs to Ms. Morrison in M arch and April 1997, respectively, one with St. Anne's and the other with Kaiser Permanente. The hearing examiner determined that Ms. Morrison declined the position at St. Anne's because the tour of duty interfered with her part-time employment at the Jackson Medical Group, the salary offered did not equal her pre-injury stacked wage, and [she] was required to be on-call every other weekend, i.e., to be available by telephone to employees then on duty.
In addition, the hearing examiner concluded that Ms. Morrison accepted the Kaiser Permanente job even though she knew "that she lacked the typing and computer skills required therefor . . . . [and had] indicated on her resume that she had computer training." *fn2
Despite "a typing tutorial provided by Kaiser[,]" Ms. Morrison failed "the orientation program" and was terminated by Kaiser Permanente. Her own efforts to find other suitable employment were unsuccessful.
Ms. Morrison filed an application for review of the hearing examiner's decision with the Director of DOES. She made two arguments in her application for review: (1) "The job at St. Anne's Maternity Home was not suitable employment because it did not conform with claimant's physical limitations"; and (2) "The job at St. Anne's Maternity Home was not suitable employment because claimant already had an acceptable job which she would have had to quit to take the job at St. Anne's Maternity Home." The Director declared in part:
The claimant argues on appeal that she declined the job at St. Anne's because the physical requirements of the job were greater than her medical restrictions. After a careful review of the record, the Director states that the [h]earing [e]xaminer's findings, in this case, are supported by substantial evidence.
Based on the compensation hearing testimony of Ms. Morrison, as well as that of Donna Polk, prenatal supervisor at St. Anne's, and Samantha Kieley, an expert in vocational rehabilitation who testified on behalf of GSECH, the Director of DOES concluded that "there is substantial evidence in the record to support the [h]earing [e]xaminer's conclusion that [Ms. Morrison] voluntarily limited her income."
The compensation hearing transcript of January 27, 1998, and other record documents contain information relevant to the Director's conclusion. During the compensation hearing, the following exchange took place between counsel for GSECH and Ms. Polk:
Q. Did you discuss with [Ms. Morrison] the physical ramifications of the job?
A. There were really no physical ramifications, other than basic work.
Q. Did [Ms. Morrison] indicate to you at any time during the course of the interview that she had any physical limitations or restrictions that prevented her from doing the job?
A. During the interview [for the position at St. Anne's], she had made reference to the weight lifting constraints that she had.
A. I don't recall the ...