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Potmac Electric Power Company v. District of Columbia Department of Employment Services

November 13, 2003

POTOMAC ELECTRIC POWER COMPANY, PETITIONER,
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT. RICHARD V. DRAKE, INTERVENOR.



Petition for Review of a Decision of the District of Columbia Department of Employment Services (DKT 43-02)

Before Schwelb and Washington, Associate Judges, and Pryor, Senior Judge.

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

Argued October 16, 2003

Reversing a ruling in favor of the employer by an Administrative Law Judge (ALJ) of the District of Columbia Department of Employment Services (DCDOES), and concluding that the medical opinion of Joel Fechter, M.D., an orthopedist retained by claimant Richard Drake's counsel, was uncontradicted while the assessment by Michael Joly, M.D. the treating physician, was erroneous as a matter of law, the agency's Director awarded Drake permanent partial disability benefits based on an impairment rating of 32% to the "left lower extremity." Drake's employer, Potomac Electric Power Company (PEPCO), has asked this court to review the Director's decision. PEPCO contends, inter alia, that the Director erred in treating Dr. Fechter's assessment as uncontradicted and in basing his decision on a medical opinion which the ALJ, as trier of fact, had explicitly rejected. We agree with PEPCO and conclude, for these reasons, that the Director's decision is not supported by substantial evidence. Accordingly, we reverse.

I.

On July 7, 1999, Drake, a mechanic and cable splicer for PEPCO, sustained a fractured left ankle when he stepped out of his truck while at work. For several weeks, Drake's leg was in a cast. In August 1999, while still on crutches, Drake returned to work on light duty. In N ovember 1999, Drake resumed his full-time duties. He received full pay and was able to work overtime, but continued to suffer pain or discomfort in his left ankle. Drake sought a permanent partial disability compensation award pursuant to D.C. Code § 32-1508 (3)(B) (2001), based upon a 32% impairment as assessed by Dr. Fechter.

On November 16, 2000, an evidentiary hearing was held before the ALJ. Drake was the only live witness, and the remaining evidence was presented in documentary form. On May 9, 2002, the ALJ issued a Compensation O rder in which he "accept[ed] the opinion of the treating physician [Dr. Joly] and [found] that the claimant has a five per cent permanent partial disability of the body as a whole." *fn1 The ALJ wrote that Dr. Joly was in a superior position to evaluate D rake's injury because he had examined Drake at a time close to the date of the accident and because he had monitored Drake's progress and rehabilitation. The ALJ further wrote that

[i]n reaching a determination of the nature and extent of the claimant's disability, and "in assessing the weight of competing medical testimony in worker compensation cases, attending physicians are ordinarily preferred as witnesses to doctors who have been retained to examine the claimant solely for purposes of litigation." Stewart v. [District of Columbia Dep't of Employment Servs.], 606 A.2d 1350, 1353 (D.C. 1992).

By contrast, the ALJ was unpersuaded by the evaluation of Drake's injury proposed by Dr. Fechter:

. . . I reject the medical opinions and disability rating assessed by claimant's IME physician, Dr. Fechter. He did not see the claimant to render any treatment or for any purpose other than arriving at a disability rating related to his workers' compensation claim. Additionally, his disability ratings are based upon a single examination of the claimant, a review of his treatment records, and x-rays. Therefore, not having the benefit of having examined the claimant during the time he was experiencing significant symptoms related to the work injury, as did the treating physician, I find the IME's medical opinions of the degree of the claimant's permanent impairment from the July 7, 1999 work injury not as reliable or persuasive as those expressed by the treating physician.

PEPCO filed a timely administrative appeal from the Compensation Order. On October 30, 2002, the Director reversed the ALJ's decision, holding that the ALJ erred by accepting the treating physician's opinion and by "finding that claimant does not have a thirty-two percent permanent partial disability of the left lower extremity." According to the Director, no special weight should have been accorded to Dr. Joly's opinions, because "the treating physician did not address the issue presented of whether claimant sustained an injury of the left leg." Moreover, in the Director's view

[t]he ALJ's award based on a rating of the body as a whole for a schedule loss, is erroneous as a matter of law. The statute does not provide for a schedule award to the body as a whole. See Scott v. Washington Hospital Center, Dir. Dkt. No. 98-31 (March 29, 2000).

Finally, in a sentence that we find quite remarkable in light of the ALJ's findings and the evidence on which they were based, the Director wrote that

[t]he uncontradicted evidence of record establishes that claimant has a 32% permanent partial disability of the left leg . (See Medical Report of ...


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