On Petition for Review of a Decision of the District of Columbia Department of Employment Services. (CRB-06-58).
The opinion of the court was delivered by: Thompson, Associate Judge
Before KRAMER, BLACKBURNE-RIGSBY and THOMPSON, Associate Judges.
Petitioner Otis Mahoney challenges an order of the Compensation Review Board (the "CRB") upholding the denial of his claim for reinstatement of wage-loss and medical benefits.*fn1 Contending that his benefits were improperly terminated, Mahoney argues that his employer, the District of Columbia, had the burden of justifying the termination and that the CRB erred in ruling that it was petitioner who bore the burden of proof. We affirm the CRB's ruling that Mahoney had the burden of proving that he had a recurrence of symptoms of a work-related injury that entitled him to a reinstatement of benefits. However, because the Department of Employment Services ("DOES") administrative law judge ("ALJ") who conducted the administrative evidentiary hearing on Mahoney's claim repeatedly advised Mahoney that the District had the burden of proof, and because it is possible that this erroneous advice prejudiced Mahoney, we reverse the CRB's decision upholding the denial of Mahoney's claim and remand for further proceedings.*fn2
Petitioner Mahoney worked for a number of years as a maintenance laborer for the District of Columbia Housing Authority ("DCHA"). On March 31, 1999, he accidentally slipped into a meter hole while raking leaves at the Lincoln Heights Housing Development, spraining and tearing ligaments in his right ankle. He filed a claim for disability benefits and was paid Temporary Total Disability ("TTD") benefits beginning in April, 1999. On June 16, 1999, Dr. John Cohen evaluated Mahoney as "recovered" and released him to return to full duty. Mahoney returned to work, and his disability payments (but not his medical expense benefits) were terminated. Thereafter, he experienced pain in his right ankle and was treated at Kaiser Permanente by Drs. Joseph Avery and Lawrence Manning, who periodically restricted his work. On July 12, 2000, Mahoney was examined by Dr. Herbert Joseph for an independent medical evaluation ("IME"). Dr. Joseph found that Mahoney had a limited range of motion in his ankle, could not work in a situation involving more than a few hours standing, and was a candidate for a sit-down occupation, but also found that "the degenerative changes seen on MRI antedated his [workplace] accident." Dr. Joseph opined that the painful motion of Mahoney's ankle was the result of a degenerative ankle condition following a 1986 ankle fracture, "a longstanding problem and not causally related to the industrial accident of March 31, 1999. Therefore, I do not feel that the above-described need for treatment is on a compensable basis."*fn3 Mahoney's benefits were terminated on the basis of Dr. Joseph's report.
In September 2000, December 2000, and April 2001, Mahoney filed successive applications for a formal hearing on the termination of benefits. His first two applications were dismissed for procedural defaults (failure to appear at the hearing scheduled on the first application and failure to file a pre-hearing statement in connection with the second application), and Mahoney withdrew the third application without prejudice.
By October 2001, Mahoney had used all of his sick and annual leave and ceased working because DCHA had no light-duty work for him. On December 14, 2001, he filed a claim for reopening of his disability benefits. He informed claims examiner Zee Cabbagestock, an employee of the vendor that acted as Third Party Administrator ("TPA") for the disability program, that he had experienced a flare-up of his work-related injury.*fn4 Cabbagestock advised Mahoney that, because of the recent transition between the previous TPA and Cabbagestock's employer, she did not have his file or information about his claim. She sought information from Mahoney about his injury and his ability to work. Mahoney told Cabbagestock that he had injured his ankle in 1999, and that he had been released to light-duty work, but that DCHA no longer had light-duty work for him. Mahoney was "a very poor historian," however, and did not tell Cabbagestock that his benefits had previously been terminated.
Cabbagestock testified that, giving Mahoney the "benefit of the doubt," she approved a reinstatement of temporary disability benefits. But in April 2002, Cabbagestock received documentation showing that Mahoney's benefits had previously been terminated. She "was directed by [her] supervisor to forward a termination letter based on the prior termination that benefits should not have been paid in the first place." The notice that was sent, dated April 8, 2002, advised Mahoney that, effective May 14, 2002, "no further compensation or medical benefits are payable pursuant to the Independent Medical Evaluation performed by Dr. Jospeph [sic]."*fn5 A final notice of termination was dated July 17, 2002.
Mahoney thereafter sought a hearing, which was held before ALJ Robert Middleton on January 3 and 24, 2003. On October 29, 2004, ALJ Middleton issued a Recommended Compensation Decision concluding that, in March 1999, Mahoney had suffered "a temporary aggravation . . . of a pre-existing condition which has long since resolved." ALJ Middleton found no evidence that Mahoney "suffered either a new employment related injury or a recurrence of the earlier 1999 employment-related injury." In his recommended decision, ALJ Middleton acknowledged that, ordinarily, "once the TPA has accepted a claim, and determined [that TTD] benefits should be paid, the burden of production to support the change of circumstance or change of conditions rest with the employer," the "employer must adduce persuasive medical evidence sufficient to substantiate a modification or termination of an award of benefits," and "the evidence relied upon to support a modification or termination of compensation benefits must be current and fresh in addition to being probative and persuasive of a change in medical status." ALJ Middleton found, however, that there were "distinctions about this case which demand a different application of the above-mentioned evidentiary protocols." The distinction that ALJ Middleton went on to identify was that the TPA "was unable to conduct a standard investigation of the claim since it did not have claimant's medical evidence without subjecting claimant to what may have been a disastrous delay."*fn6 As the TPA did not have Mahoney's file at the time of approving his claim for reinstatement of benefits, ALJ Middleton found, acceptance of his claim was merely "provisional."
ALJ Middleton found that "[o]nce Dr. Cohen's evaluation was located, and the IME's report was determined to be reliable, the second TPA took the correct step in terminating claimant's compensation benefits." He concluded that at that time, "the burden of production of evidence shifted to [Mahoney], who has presented nothing in the way of reliable, probative and substantial evidence of continuing employment related impairment."
The Assistant Director of DOES adopted ALJ Middleton's ruling as a Final Compensation Order, but the CRB reversed and remanded, finding that ALJ Middleton had erred in not mentioning the opinions from Mahoney's treating physicians that were in the record (opinions that were written more recently than Dr. Joseph's opinion) that Mahoney's disability is related to his March 1999 injury,*fn7 in not evaluating Dr. Joseph's report under the "'current and fresh' standard," and in failing to explain why "the treating physician preference was not applied." The CRB stated that it agreed that the District had the initial burden to "present persuasive medical evidence to terminate Mahoney's benefits," after which the "burden then shifted back to Petitioner to provide proof of an employment related impairment following the termination of benefits."
On remand the matter was assigned to ALJ Terri Thompson Mallett. ALJ Mallett did not conduct a new evidentiary hearing, but, in her Compensation Order on Remand dated May 23, 2006, "adopt[ed] and fully incorporate[d] by reference the findings of fact recited" by ALJ Middleton in his October 29, 2004 Compensation Order. ALJ Mallett agreed with ALJ Middleton that under the circumstances presented, it was appropriate to treat the July 17, 2002 final decision to cease paying benefits as the "initial decision" on Mahoney's claim (rather than as a modification of benefits), and to recognize that the "the initial burden of production to prove a recurrence of the symptomatology of Claimant's 1999 injury is on Claimant." ALJ Mallett stated that Mahoney had the burden to show "both the symptoms and a causal relationship between [his] current symptoms and the March 31, 1999 injury." She concluded that Mahoney had presented "insufficient evidence of a recurrence of the symptomatology of Claimant's 1999 injury." In explaining why she rejected the opinions of Mahoney's treating physicians that Mahoney's ankle symptoms were causally related to his March 1999 workplace injury, ALJ Mallett characterized Dr. Manning's medical notes as "vague and incomplete." She also rejected the opinion of Dr. Parthasarathy because it was not clear that Dr. Parthasarathy had considered all of Mahoney's medical records and because his opinion was inconsistent with the "unsolicited June 1999 medical reports of Dr. Cohen." Among the records to which Drs. Manning and Parthasarathy did not refer was an October 13, 2000 Kaiser Permanente physical therapy record stating that Mahoney had reported that he "slipped on some boards and injured [his] ankle again," a report that ALJ Mallett treated as "clear evidence that Claimant sustained an intervening injury in 2000."
In an October 20, 2006 decision, the CRB affirmed the Compensation Order on Remand. The CRB agreed that because Mahoney's "claim for recurrence was never formally accepted," but was only "provisionally accepted," Mahoney "had the burden to prove the recurrence." The CRB was satisfied that there was substantial evidence to support ALJ Mallett's conclusion that "an intervening non-work related right ankle injury occurred in 2000" and that "the current condition of Petitioner's ankle is not causally related to his March 31, 1999 work injury." The CRB also concluded that ALJ ...