On Petition for Review of a Decision of the Director of the District of Columbia Department of Employment Services. (DKT06-00)
Before Ruiz, Reid, and Washington, Associate Judges.
The opinion of the court was delivered by: Washington, Associate Judge
As a result of the back injury petitioner Shelda Kralick sustained in a slip-and-fall accident outside her workplace in 1979, petitioner received temporary total disability benefits from the District of Columbia until 1990, when those benefits were terminated. After petitioner sought review of the decision to terminate her benefits, the decision was affirmed by the Director of the Department of Employment Services ("DOES"). On appeal from that decision, petitioner advances two related arguments: (1) that the Director's findings were not supported by substantial evidence, and (2) that both the Hearing Officer and the Director improperly failed to give deference to the testimony of her treating physician over that of two doctors retained by the District for litigation purposes. Because the decision to reject the testimony of petitioner's treating physician was based on an error of fact, we reverse and remand this case to the Director for further consideration.
Petitioner was hired by the District of Columbia in 1974 to work as a computer programmer for the District of Columbia Superior Court. On February 21, 1979, petitioner slipped on the ice and snow in front of her job site and fell, injuring her lower back. On the basis of this injury, petitioner was granted temporary total disability compensation benefits, and, to this date, she has not returned to work. At the time of her injury, petitioner was twenty-eight years old, 5'5" tall and weighed more than 240 pounds.
The record reflects that petitioner visited a number of doctors in the years following her injury. On the day of her fall, orthopedic surgeon Dr. Robert Collins diagnosed petitioner with an acute lumbar strain and directed her to rest at home for the remainder of the week. Because she continued to complain of severe back pain, Dr. Collins admitted petitioner to Washington Hospital Center on March 5, 1979, where she was placed in traction until March 30. While in the hospital, petitioner was examined by neurosurgeon Dr. Arthur P. Hustead who opined that she had sustained a possible ruptured disc from the fall and recommended that she undergo a myelogram *fn1 to determine whether surgery was necessary. When the results of the myelogram came back negative for signs of disc damage, Dr. Hustead concluded that petitioner had a lumbar strain and that surgery was unnecessary. A second myelogram was performed in September 1981, again yielding normal results.
Although Petitioner was treated primarily by Dr. Collins during the early 1980's, she underwent diagnostic procedures with a number of other specialists. Orthopedist Dr. Jack Nichols examined petitioner on two occasions in November 1979 and concluded, after taking a number of x-rays (which appeared normal), performing other diagnostic tests, and reviewing her medical history, that petitioner had "the residuals of a low back strain which apparently began in 1974 and has continued for the past five years." He recommended that she continue with a low back exercise program, lose weight, and walk up to two miles a day.
Meanwhile, in October 1979, District Medical Director Robert S. Smith referred petitioner to Dr. Everett Gordon for an independent medical examination to determine the nature and extent of petitioner's disability, apparently to assess her eligibility for benefits. Dr. Gordon, an orthopedic surgeon, reviewed her medical records and, after examining petitioner in January 1980, diagnosed her with "probable anxiety state, pre-disposing to subjective back complaints [and] chronic obesity." Dr. Gordon advised petitioner that returning to work on a part-time basis "may be helpful in dissipating her nervous overlay." Although he reported "no objective finding of disability from the accident of 2-21-79," he referred her to neurologist Dr. Harold Stevens to determine whether her "nervous problem" was related to the accident. On March 12, 1980, Dr. Stevens performed a neurological evaluation of petitioner and reported that petitioner was "manifesting symptoms of lumbar radiculopathy[ *fn2 ] involving predominantly L4-L5." Dr. Stevens then requested electrodiagnostic tests, which included a nerve conduction study and an EMG, *fn3 to confirm his preliminary diagnosis. After performing those tests, fellow neurologist Dr. Wu S. Chiu informed Dr. Stevens that the EMG showed evidence of "S1 radiculopathy" and "mild partial denervation." In his March 28, 1980 report, Dr. Stevens concluded that petitioner's "signs and symptoms reflect the result of the injury on February 21, 1979, which exacerbated her pre-existing low back strain, further aggravated by obesity."
The following year, in February 1981, petitioner underwent a second round of nerve conduction studies and an EMG with neurologist Dr. Ramon Jenkins. Although "[s]pecial attention was paid to muscles supplied by L-5 and S-1" Dr. Jenkins concluded that the examination revealed "no evidence of denervation." Similarly, in a report dated March 13, 1981, Dr. Collins described the results of these exams as "essentially normal." In April 1984, however, Dr. Hereward S. Cattell reviewed the results of these examinations and concluded, contrary to Dr. Jenkins and Dr. Collins, that the results "supported the presence of some denervation potentials in the right leg." Dr. Cattell further diagnosed petitioner with a "degenerative lumbosacral disc condition" and "exogenous obesity." X-rays taken of her spine at various angles showed a "narrowing at the L-5, S-1 interbody space." According to Dr. Cattell, the degree of petitioner's disability was "substantial" and was, in fact, related to the injury she had sustained in February 1979. He did, however, indicate that petitioner might be able to work, with certain restrictions, on a half-time basis.
As her treating physician from the time of her accident until she moved to Redding, California in November 1985, Dr. Collins saw petitioner regularly every four to six weeks. Throughout this period, Dr. Collins maintained that petitioner was unable to resume work due to her severe and chronic back pain. *fn4 After moving to California, petitioner began treatment with Dr. William Snider, an orthopedic surgeon. In a 1986 medical report, Dr. Snider wrote that petitioner appeared to have a "chronic back condition with evidence of S1 radiculopathy" but that the condition was "controlled generally satisfactorily with Darvocet-N 100 and Robaxin." In 1987, Dr. Snider added physical therapy to her regimen of treatment.
In January 1990, at the request of the Division of Disability Compensation, Dr. Henry L. Feffer reviewed petitioner's medical records and conducted an independent medical examination. Dr. Feffer issued a report to the Division of Disability Compensation on January 12, 1990, concluding that petitioner "never has had her symptoms objectively confirmed in spite of multiple examinations and tests . . . ." Although he assessed her a "5% permanent partial physical impairment to her body as a whole" based on her "chronic pain syndrome," Dr. Feffer stated that there was "absolutely no reason why she could not resume productive employment" provided that her activities conformed to certain restrictions.
In May 1990, petitioner flew to Washington, D.C. for another independent medical examination. Dr. Louis E. Levitt reviewed petitioner's medical records and performed a physical evaluation, concluding on May 18, 1990 that "although [petitioner] appears to be handicapped from persisting back pain that probably has at its basis some degenerative disc disease, I believe that pathology pre-existed the patient's work trauma and is well-documented as pre-existing the work trauma." Furthermore, in Dr. Levitt's view, petitioner was "certainly capable of handling a sedentary job" and was "not totally disabled."
During this same trip to Washington, D.C., petitioner saw Dr. Collins for the first time since her move to California. Upon examining petitioner and reviewing her medical records, Dr. ...