On Petition for Review of a Decision of the Compensation Order Review Board.
The opinion of the court was delivered by: Thompson, Associate Judge
Before WASHINGTON, Chief Judge, and KRAMER and THOMPSON, Associate Judges.
Petitioner Celane Darden challenges a March 17, 2005 decision by the District of Columbia Department of Employment Services ("DOES") Compensation Order Review Board ("the Board")*fn1 that upheld an August 20, 2003 Compensation Order of the DOES Office of Hearings and Adjudication ("OHA"). The August 20, 2003 OHA Compensation Order, issued after a hearing held on July 30, 2003, suspended the temporary total disability workers' compensation benefits that Darden had been receiving since December 3, 2001, on the ground that Darden unreasonably failed to cooperate with her employer's efforts to provide her with vocational rehabilitation.
The Board found that OHA's August 20, 2003 Compensation Order was supported by substantial evidence in the record and was in accordance with the law. We affirm the Board's order insofar as it upholds OHA's determination that Darden unreasonably failed to cooperate with vocational rehabilitation as of April 22, 2003. However, we reverse that portion of the Board decision that rejected outright, as a matter that "cannot be addressed on appeal," Darden's claim that she cured her failure to cooperate.
Darden sustained an on-the-job injury to her left knee on September 1, 1995, while working as a cook. She sought treatment from orthopedic surgeon Rafik D. Muawwad, underwent knee surgery, and eventually returned to work, but continued to complain of pain in her knee and had limited mobility. After a hearing on April 9, 2002, OHA determined in a compensation order dated July 28, 2002 that Darden was entitled to temporary total disability benefits effective December 3, 2001. According great weight to Dr. Muawwad's determination that Darden's "activities are to be limited in avoidance of prolonged standing and walking," OHA stated in its July 28, 2002 compensation order that Darden was "in need of a job that would accommodate her need to sit intermittently."
Thereafter, as required under the D.C. Workers' Compensation Act of 1979, as amended, D.C. Code § 32-1501 et seq., Darden's former employer, Guest Services, Inc. ("the Employer"), sought to provide Darden with vocational rehabilitation services. See D.C. Code § 32-1507 (formerly D.C. Code § 36-307) and 7 DCMR § 229.1. Beginning in November 2002, the Employer engaged the services of a vocational rehabilitation specialist, who assessed Darden's background, work history and transferable skills; reviewed Darden's restrictions as stated in the July 28, 2002 compensation order; and then sought out sedentary positions for which Darden could apply. Although Darden missed at least one job application appointment that the vocational rehabilitation specialist had scheduled, she applied for most of the positions that the specialist initially identified.
On April 4, 2003, Darden advised the vocational rehabilitation specialist that she could no longer search for a job because Dr. Muawwad was "going to put her on total disability." On April 22, 2003, Darden told the rehabilitation specialist that she was "following her doctor's orders in not participating in vocational rehabilitation" and that she therefore would be "unable to accommodate" any of the dates that the rehabilitation specialist proposed as dates to apply for work and to assess Darden's typing speed. Because of Darden's refusal to participate, the Employer directed the specialist to discontinue his efforts. The specialist closed Darden's file on April 25, 2003.
The Employer thereafter requested that the July 28, 2002 compensation order be modified so as to suspend Darden's benefits on account of her failure to cooperate with the Employer's vocational rehabilitation efforts.*fn2 On July 30, 2003, OHA Administrative Law Judge ("ALJ") Jeffrey Russell conducted an evidentiary hearing regarding the modification request. He found that Darden's physical condition as it related to her left knee had not changed since the April 9, 2002 hearing, and he rejected Darden's argument that Dr. Muawwad's opinion that she could not work justified her refusal to participate in vocational rehabilitation.
The ALJ accepted Dr. Muawwad's opinion that Darden could not work in "employment that requires any strenuous activity," but found that Dr. Muawwad's "broader statements" (in reports dated March 31, 2003 and April 23, 2003) regarding Darden's "total disability," and his failing "to see how she can go to work" when she "does not have the skills for any light employment," did not constitute and could not be accepted as medical opinions. The ALJ further found that these statements were "not sufficient to deny Employer the opportunity to try to place [Darden] in a suitable alternative job." The ALJ further found that "nothing in the doctor's progress notes precludes [Darden] from a job that is not strenuous and requires nothing more of her physically than sitting or standing as needed while operating a cash register or ticket dispenser." The ALJ commented that one of Darden's documentary exhibits, a letter on Darden's counsel's letterhead on which Dr. Muawwad had merely checked lines indicating that Darden was restricted from lifting, bending, walking, standing, carrying and sitting, was "untenable" if it meant that Darden was totally physically incapable of doing any of those things and, if it meant something different, was "singularly unhelpful" and "without significant evidentiary value" for purposes of assessing whether Darden could perform any particular job . The ALJ concluded that there was no circumstance that justified Darden's refusal to attend further job development meetings when dates were proposed to her on April 22, 2003 and that Darden had unreasonably failed to cooperate with her Employer's vocational rehabilitation efforts. He ordered a suspension of Darden's workers' compensation commencing after April 22, 2003.
In her appeal to the Board, Darden again argued that her unwillingness to participate in the vocational rehabilitation process was due to her efforts to follow her physician's orders, which, she contended, rendered her failure to cooperate reasonable. The Board agreed with the ALJ that Dr. Muawwad's statements on which Darden relied did not constitute a medical opinion and as such "cannot be afforded any preference usually accorded a treating physician." The Board found that Dr. Muawwad's opinion was "an expert opinion outside the scope of Dr. Muawwad's medical expertise, one more appropriately considered by a vocational rehabilitation expert." The Board noted that Dr. Muawwad's opinion did not "speak to the sedentary types of jobs that the vocational rehabilitation counselor . . . locate[d]" for Darden. Referring to the ALJ's detailed recitation of Dr. Muawwad's opinions concerning Darden from May 13, 2002 to April 23, 2003, the Board agreed that the list did not include any indication that Darden's physical capacity had changed on or about April 23, 2003. The Board found that the ALJ's order suspending Darden's benefits based upon unreasonable failure to cooperate with her Employer's vocational rehabilitation efforts was supported by substantial evidence in the record and was in accordance with the law.
The Board rejected Darden's alternative argument that she cured her refusal to participate in the vocational rehabilitation process when her attorney sent her Employer an electronic mail message on August 27, 2003 on Darden's behalf, indicating that Darden was "ready, willing and able to participate in vocational rehabilitation services." The Board acknowledged that a suspension of benefits pursuant to section 32-1507 (d) "is only appropriate throughout the period that the injured employee unreasonably refuses to accept vocational rehabilitation" and that "[u]pon demonstration of a willingness to participate in the vocational rehabilitation which [Employer] is obliged to continue to provide, the suspension of benefits must end." The Board noted that both parties referred in their briefs to vocational rehabilitation-related activities that occurred after the formal hearing, but found that ...