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Georgetown University v. District of Columbia Dep't of Employment Services

December 2, 2004


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

Before Wagner, Chief Judge, and Farrell, Associate Judge, and STEADMAN,*fn2 Senior Judge.

The opinion of the court was delivered by: Wagner, Chief Judge

Submitted September 23, 2003

The District of Columbia Department of Employment Services (DOES) reversed the decision of an Administrative Law Judge (ALJ) which found that Theresa Owens, intervenor, had failed to provide timely notice of her work-related injury to her employer as required by D.C. Code § 36-313 (1981) (now D.C. Code § 32-1513 (2001)), thereby barring her claim for benefits under the D.C. Workers' Compensation Act.

Petitioner, Georgetown University, now argues that the Director of DOES erred in concluding that the ALJ's decision was not supported by substantial evidence and exceeded his authority by improperly substituting his factual findings for those of the ALJ. We agree for the reasons stated herein. However, after the submission of this case, we held in another case that "claims for causally related medical expenses are not barred by the failure of the employee to give the notice required by D.C. Code § 32-1513 (2001)." Safeway Stores, Inc. v. District of Columbia Dep't of Employment Servs., 832 A.2d 1267, 1271 (D.C. 2003). While claimant raised this issue in her appeal to the Director, the Director did not reach it in light of his decision that the ALJ's ruling, adverse to Owens, was not supported by substantial evidence. We remand the case to DOES for a ruling on that issue, since "'[a]n administrative order can only be sustained on the grounds relied on by the agency. . . .'" Kralick v. District of Columbia Dep't of Employment Servs., 842 A.2d 705, 713 (D.C. 2004) (quoting Jones v. District of Columbia Dep't of Employment Servs., 519 A.2d 704, 709 (D.C.1987)) (other citation omitted).


Owens was employed at Georgetown University Hospital as a medical secretary. In 1998, she experienced a work-related lower back injury and was placed on a light duty assignment as a result. Owens testified that on November 24, 1999, in an attempt to retrieve a projector from under her desk, she moved some boxes and experienced a pain that "shot up" through her neck and right arm. She said that she believed initially that this new pain was related to her previous back injury; however, she testified that she did not inform the physicians who were treating her of the new symptoms. According to Owens, she did not tell anyone about the November 24 accident that day as it was the day before Thanksgiving, and there was no one present to whom she could report the injury. She testified that she reported the injury to her supervisor, Ninian Kring, the following week; however, she was impeached with her interrogatory answer in which she stated that she did not inform Ms. Kring of the incident until March 1, 2000, and she provided a written notice on April 25, 2000.*fn3 On February 28, 2000, Dr. Dara Dane diagnosed Owens with work-related carpal tunnel syndrome and cervicothoracic strain. Dr. Denise Ross concurred in the cervical diagnosis on February 29, 2000, and Dr. Eric Dawson confirmed the carpel tunnel diagnosis in May 2000.

An evidentiary hearing was held before ALJ Linda Jory, who thereafter issued a Compensation Order listing the primary issues as the timeliness of Owens' notice, whether she was injured in the course of her employment and whether her injuries were causally related to that work injury.*fn4 Although the latter two issues were resolved in Owens' favor, the ALJ found that Owens had not provided her employer with timely notice of her injury. The ALJ rejected as not credible Owens' testimony to the effect that she had notified her supervisor orally of her injury shortly after it occurred. The ALJ provided as reasons for rejecting Owens' testimony that it was "contradicted outright by her own answers to interrogatories wherein she stated that she first gave notice to her employer by orally informing Ninian Kring on March 1, 2000." She also noted the absence of paperwork substantiating the claim of notice and the lack of corroborating evidence. The ALJ also found that Owens' assertion that she could not have known the work-related nature of her November 1999 injury until February 2000 to be "neither supported by the record, nor persuasive." The ALJ concluded that the testimonial and written evidence therefore established that "[c]laimant was aware that something unexpectedly went wrong within the human frame[,] which in this jurisdiction equates with the term 'injury' as used in § 36-313 (a) when she felt pain while moving 'stuff'" on November 24, 1999. Therefore, the examiner held that Owens "falls within the parameters of one who is aware[,] or in the exercise of reasonable diligence[,] should have been aware of a relationship between the pain in her neck and arms and her work." Thus, she concluded that Owens was required to give notice of her injury within thirty days of November 24, 1999, and, having failed to do so, she was not entitled to benefits.

Owens filed a petition for review of the decision with the Director of DOES. The Director concluded that Owens' testimony that she provided timely oral notice to her employer was adequate as it was uncontradicted. The Director also found that the ALJ's conclusion that Owens' interrogatory answer contradicted her testimony was "not borne out by the record" in light of the uncontradicted evidence. The Director reversed the ALJ's decision, and this petition for review of the agency's decision followed.


Georgetown argues that the Director of DOES erred in reversing the finding of the ALJ that Owens had failed to provide timely written notice of her injury as required by law. It contends that in doing so, the Director impermissibly re-weighed the evidence, rejected the credibility determination of the ALJ and substituted his own factual findings for that of the trier of fact. Owens responds that her uncontradicted testimony supports the Director's decision.

A. Standard of Review

In reviewing an agency decision, this court must consider: " (1) whether the agency made a finding of fact on each material contested issue of fact; (2) whether substantial evidence in the record supports each finding; and (3) whether the conclusions of law follow rationally from the findings."Cathedral Park Condo. Comm. v. District of Columbia Zoning Comm'n, 743 A.2d 1231, 1239 (D.C. 2000) (citations omitted). In this analysis, the factual findings of the hearing examiner are entitled to great deference if supported by substantial evidence. See 4934, Inc. v. District of Columbia Dep't of Employment Servs., 605 A.2d 50, 53 (D.C. 1992) (citations omitted). Even when they might have reached a different result upon an independent review of the record, both the Director and this court are bound by the hearing examiner's factual findings. See Beckman v. D.C. Police & Firefighters' Ret. & Relief Bd., 810 A.2d 377, 384 (D.C. 2002); Pickrel v. District of Columbia Dep't of Employment Servs., 760 A.2d 199, 203 (D.C. 2000). Thus, when the hearing examiner fails to make factual findings on a material contested issue, this court is not permitted to make its own finding on the issue; it must remand for the proper factual finding. See Jimenez v. District of Columbia Dep't of Employment Servs.,701 A.2d 837, 840 (D.C. 1997). This court will uphold the agency's decision if it is based upon substantial evidence, which means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." See Greater Wash. Bus. Ctr. v. D.C. Comm'n on Human Rights, 454 A.2d 1333, 1338 (D.C. 1982) (citations and internal quotations omitted). The agency's legal conclusions are entitled to less deference than its factual findings because of the ...

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