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McCamey v. District of Columbia Dep't of Employment Services

May 15, 2008

CHARLENE MCCAMEY, PETITIONER,
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT.



Petition for Review of a Decision of the District of Columbia Department of Employment Services (Dir. Dkt. No. 10-03).

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

Argued en banc November 30, 2006

Before WASHINGTON, Chief Judge, and FARRELL, RUIZ, REID, GLICKMAN, KRAMER, FISHER, BLACKBURNE-RIGSBY, and THOMPSON,Associate Judges.

Charlene McCamey petitioned this court to review a decision of the Director of the District of Columbia Department of Employment Services (D.C. DOES) that denied her workers' compensation claim for psychological injuries she alleges resulted from an accidental physical injury suffered in the course of her employment. A three-judge division of this court affirmed the Director's decision, holding that the Director's application of an objective test to workers' compensation claims involving psychological injuries was consistent with this court's prior decisions. We granted Ms. McCamey's petition for rehearing en banc to consider whether application of an objective standard, as currently defined, to psychological injuries that are related to work-related physical injuries is consistent with the language and purpose of our workers' compensation law. We conclude that it is not and accordingly must reverse.

I.

Ms. McCamey was employed by the District of Columbia Public Schools (DCPS) as a visiting instructor for homebound students. On September 29, 2000, while on the job, Ms. McCamey suffered injuries to her forehead, lower back and neck when she fell as a result of the collapse of a table that she and another instructor were moving. The Administrative Law Judge (ALJ) who heard her case found that as a result of the fall, Ms. McCamey suffered frequent, extensive, and excruciating headaches. In addition, following the accident, McCamey was afflicted with "depression, panic attacks, confusion, auditory hallucinations, and memory loss."

The foregoing events, however, occurred in the context of a serious pre-existing psychological illness. During the mid-1990s, several years prior to the accident, Ms. McCamey had begun to experience psychological problems attributable in substantial part to the death of her father, who had spent most of his life in a mental hospital.*fn1 Ms. McCamey was treated by a psychiatrist, Dr. Maria C. Hammill, and subsequently returned to work. It is undisputed that after completing her treatment regimen, Ms. McCamey was capable of performing her regular employment duties without incident. Indeed, the ALJ found that Ms. McCamey had not seen Dr. Hammill for several years prior to the workplace accident.

At issue in this case is Ms. McCamey's claim for temporary total disability benefits arising from the psychological injuries that she attributes to her workplace accident. Dr. Hammill, the treating psychiatrist, was of the opinion that the workplace incident exacerbated Ms. McCamey's pre-existing psychological disorder. Dr. Bruce Smoller, a psychiatrist who examined Ms. McCamey on behalf of DCPS, and who relied in part on an MRI scan of Ms. McCamey's brain and on thyroid tests, opined that the source of Ms. McCamey's psychological injury was not her accident, but rather a pre-existing psychosis. In a "Recommended Compensation Order" entered on April 22, 2003, the ALJ denied Ms. McCamey's claim for psychological injury. Applying to the record before him the Director's analysis in Dailey v. 3M Co. & Northwest Nat'l Ins. Co., H & AS No. 85-259 (May 19, 1988), and this court's decision in Porter v. District of Columbia Dep't of Employment Servs., 625 A.2d 886 (D.C. 1993), the ALJ found

1. that "claimant herein has presented substantial evidence of a cognizable injury";

2. that Ms. McCamey's "stressors," i.e., the aggravation of her pre-existing psychological condition, "did arise in the course of her employment,"*fn2 but

3. that Ms. McCamey failed to satisfy the "objective" standard approved in Porter, i.e., that a person of normal sensibilities with no history of mental illness would have suffered a similar psychological injury.

Ms. McCamey appealed to the Director of D.C. DOES. On February 10, 2004, the Director affirmed the ALJ's decision. The Director found, as had the ALJ, that "Claimant's pre-existing condition was exacerbated by a physical injury." Nevertheless, the Director upheld the denial of compensation, reasoning that although Dr. Hammill and Dr. Smoller expressed different opinions, "[n]either opined, and the evidence did not show, that an individual who did not have a pre-existing anxiety disorder would have suffered a psychological injury as a result of trauma to the head."

Ms. McCamey filed a timely petition for review of the Director's decision. A three-judge panel of this court affirmed, holding that while Ms. McCamey's position was not "implausible in principle," it was nevertheless foreclosed due to the court's decisions in Porter, supra, 625 A.2d at 888-89, and Landesberg v. District of Columbia Dep't of Employment Servs., 794 A.2d 607, 614-15 (D.C. 2002). See McCamey v. District of Columbia Dep't of Employment Servs., 886 A.2d 543, 548 (D.C. 2005). Subsequently, this court granted Ms. McCamey's petition for rehearing en banc. McCamey v. District of Columbia Dep't of Employment Servs., 896 A.2d 191 (D.C. 2006).

II.

A. Standard of Review

This court "will not disturb an agency decision if it rationally flows from the factual findings on which it is based and if those findings are supported by substantial evidence." Children's Defense Fund v. District of Columbia Dep't of Employment Servs., 726 A.2d 1242, 1247 (D.C. 1999). Therefore, this court will affirm the agency's ruling unless it is arbitrary, capricious, or otherwise an abuse of discretion and not in accordance with the law. See Landesberg, supra, 794 A.2d at 612. Questions of law, however, are reviewed de novo. See King v. District of Columbia Dep't of Employment Servs., 742 A.2d 460, 466 (D.C. 1999). "To be sure, 'an agency's interpretation of its own regulations or of the statute which it administers is generally entitled to great deference from this court. There is, however, a well-recognized exception to this rule. When the agency's decision is inconsistent with the applicable statute . . . we owe it far less deference, if indeed we owe it any deference at all.'"

Id. (quoting Columbia Realty Venture v. District of Columbia Rental Hous. Comm'n, 590 A.2d 1043, 1046 (D.C. 1991)). As we have noted before, "'the agency's interpretation of the statute it administers is not binding upon this court [if] it conflicts with the plain meaning of the statute or its legislative history.'" Murphy v. District of Columbia Dep't of Employment Servs., 935 A.2d 1066, 1070 (D.C. 2007) (quoting Lincoln Hockey LLC v. District of Columbia Dep't of Employment Servs., 810 A.2d 862, 866 (D.C. 2002)) (citations omitted). "[T]he judiciary is the final authority on issues of statutory construction." Harris v. District of Columbia Office of Worker's Comp., 660 A.2d 404, 407 (D.C. 1995) (citing Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 n.9 104 (1984)).

Panel decisions by this court bind future divisions of the court. See M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971). The court sitting en banc, however, may overrule the decisions of prior divisions. See id. "Although the doctrine of stare decisis has considerable force in statutory analysis because [the legislature] can correct a court's interpretive mistakes through legislation, we should not 'appl[y] stare decisis mechanically to prohibit overturning our earlier decision determining the meaning of statutes.'" In re McBride, 602 A.2d 626, 636 (D.C. 1992) (en banc) (quoting Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 695 (1978)).

B. Principles of Workers' Compensation Law

The District of Columbia Workers' Compensation Act ("WCA") provides for the compensation of employees who suffer disabilities that are causally connected to workplace injuries. The WCA covers "[t]he injury or death of an employee that occurs in the District of Columbia if the employee performed work for the employer, at the time of the injury or death, while in the District of Columbia." D.C. Code § 32-1503 (a)(1) (2001). The Act further defines "injury" as

[A]ccidental injury or death arising out of and in the course of employment, and such occupational disease or infection as arises naturally out of such employment or as naturally or unavoidably results from such accidental injury, and includes an injury caused by the willful act of third persons directed against an employee because of his employment.

D.C. Code § 32-1501 (12) (2001).

Workers' Compensation laws reflect a compromise between employees and employers regarding injuries arising out of employment. "The District of Columbia Workers' Compensation Act of 1979, like its 1928 predecessor, was enacted to provide a reasonably quick and efficient manner to compensate employees for disabilities resulting from employment-bred injuries. Employees and employers were both thought to gain by a system in which common law tort remedies were discarded for assured compensation regardless of negligence or fault." Ferreira v. District of Columbia Dep't of Employment Servs., 531 A.2d 651, 654 (D.C. 1987) (footnote omitted); cf. D.C. Code § 32-1504 (b) (2001) (providing that compensation under the Act is the employee's exclusive remedy against the employer for "any illness, injury, or death arising out of and in the course of his employment"). The purpose of workers' compensation laws, "which is to provide financial and medical benefits to employees injured in work-related accidents," is a humanitarian one. Grayson v. District of Columbia Dep't of Employment Servs., 516 A.2d 909, 912 (D.C. 1986). This court follows the principle that "workers' compensation statutes should be liberally construed to achieve their humanitarian purpose." Vieira v. District of Columbia Dep't of Employment Servs., 721 A.2d 579, 584 (D.C. 1998); see also Ferreira, supra, 531 A.2d at 655.

The aggravation rule is an obvious example of meeting the humanitarian nature of the Act. "It is well-settled that 'an aggravation of a pre-existing condition may [also] constitute a compensable accidental injury under the Act." King, supra, 742 A.2d at 468 (quoting Ferreira, supra, 531 A.2d at 660) (internal quotation omitted). "The fact that other, non-employment related factors may also have contributed to, or additionally aggravated [petitioner's] malady, does not affect [the] right to compensation under the 'aggravation rule.'" Ferreira, supra, 531 A.2d at 660 (internal quotation omitted).*fn3 "If an employee experiences a work-related injury which, combined with a previous disability or physical impairment (work-related or non-work related) causes substantially greater disability or death, the liability of the employer shall be as if the subsequent injury alone caused the subsequent amount of disability." Georgetown Univ. v. District of Columbia Dep't of Employment Servs., 830 A.2d 865, 873 (D.C. 2003). In Harris, supra, 660 A.2d at 408, the court distinguished the aggravation of a pre-existing injury from a mere recurrence of the injury by requiring some intervening work-related event: "This is not a case, however, in which the 'recurrence' was the result of the natural progression of the condition, unaffected by any intervening work-connected cause." See id. (internal citation and quotation omitted); see also 9 ARTHUR LARSON, LARSON'SWORKERS' COMPENSATION LAW § 153.02[3] (2007) ["LARSON'S"] ("To find that there has been an aggravation, it must be shown that the second episode contributed independently to the final disability.").

The aggravation rule stems from the principle that the employer must take the employee as it finds him or her. "Employers must accept with their employees the frailties that predispose them to bodily hurt . . . and if petitioner's disability arose even in part out of and in the course of [her] employment, compensation is appropriate." Ferreira, supra, 531 A.2d at 660 (internal citations and quotations omitted; emphasis in original). Professor Larson concurs:

Pre-existing disease or infirmity of the employee does not disqualify a claim under the "arising out of employment" requirement if the employment aggravated, accelerated, or combined with the disease or infirmity to produce the death or disability for which compensation is sought. This is sometimes expressed by saying that the employer takes the employee as it finds that employee.

1 LARSON'S, supra, at § 9.02[1]; see id. at § 9.02D[1] (citing cases expressing that employer takes the employee as it finds him or her).*fn4

Similarly, "DOES has recognized that the [WCA] covers complications flowing from a compensable injury." Brown v. District of Columbia Dep't of Employment Servs., 700 A.2d 787, 791-92 (D.C. 1997). "The rule is that a subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is compensable if it is the direct and natural result of a compensable primary injury." Id. (internal quotation omitted); see 1 LARSON'S, supra, at § 10.01 (same test). Larson notes that "cases in which an initial medical condition itself progresses into complications more serious than the original injury" present no legal controversy and "the added complications are of course compensable." Id. § 10.02. "[O]nce the work-connected character of any injury, such as a back injury, has been established, the subsequent progression of that condition remains compensable so long as the worsening is not shown to have been produced by an independent non-industrial cause." Id.*fn5

Moreover, "[t]his jurisdiction has repeatedly rejected the notion that a 'specific traumatic injury' is necessary to establish a prima facie case of an 'accidental injury." Ferreira, supra, 531 A.2d at 656. "[T]he statutory language 'accidental injury' does not require that an unusual incident be the cause of the injury, but is satisfied if something unexpectedly goes wrong within the human frame." Washington Metro. Area Trans. Auth. v. District of Columbia Dep't of Employment Servs., 506 A.2d 1127, 1130 (D.C. 1986). "While the precise meaning of the 'human frame' definition of 'accidental injury' is undeniably elusive, it clearly encompasses two concepts." Ferreira, supra, 531 A.2d at 656. "First, the nature of the activity or event which results in or contributes to the injury may occur in the 'usual and ordinary course of work.' The work need not be unusual or unexpected." Id. "Second, the nature of the potential cause of the disability need not be a discrete, particularized event." Id.

Indeed, the WCA features a statutory presumption of compensability. Under D.C. Code § 32-1521 (2001), it is presumed that a "claim comes within the provisions of this chapter" in the absence of any evidence to the contrary. "This sound presumption, designed to effectuate the humanitarian purposes of the statute, reflects a 'strong legislative policy favoring awards in arguable cases.'" Ferreira, supra, 531 A.2d at 655 (quoting Wheatley v. Adler, 132 U.S. App. D.C. 177, 183, 407 F.2d 307, 313 (1968) (en banc)). "In order to benefit from the presumption, a claimant needs to make some 'initial demonstration' of the employment-connection of the disability." Id. (quoting 1 ARTHUR LARSON, WORKMEN'S COMPENSATION LAW § 10.33, at 3-138 (1986)). "The initial demonstration consists in providing some evidence of the existence of two 'basic facts': a death or disability and a work-related event, activity, or requirement which has the potential of resulting in or contributing to the death or disability." Id. (emphasis in original). "The presumption then operates to establish a causal connection between the disability and the work-related event, activity, or requirement." Id. "Once the presumption is triggered, the burden is upon the employer to bring forth 'substantial evidence' showing that the death or disability did not arise out of and in the course of employment." Id. This court has held that expert testimony is not required to invoke the presumption. See ...


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