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

August 21, 2008


On Petition for Review of an Order of the District of Columbia Department of Employment Services (CRB 80-06)

The opinion of the court was delivered by: Thompson, Associate Judge

Submitted June 4, 2008

Before GLICKMAN and THOMPSON, Associate Judges, and NEBEKER, Senior Judge.

On January 23, 1996, petitioner Gaynell Nixon sustained injuries to her foot while working for the District of Columbia Housing Authority. She subsequently claimed and received an award of temporary total disability benefits under the Comprehensive Merit Personnel Act ("CMPA").*fn1 In September 2004, the Department of Employment Services ("DOES") informed Nixon that it would reduce her disability benefits beginning in October 2004, on the basis of independent medical evaluations that concluded that Nixon could perform sedentary work and a labor-market survey that identified sedentary positions commensurate with Nixon's limitations.

Through a request for reconsideration submitted on September 24, 2004, Nixon sought restoration of full disability benefits. In March 2001, Nixon had also requested compensation for medical expenses incurred as a result of a head injury that she sustained in a vehicle accident on February 22, 2001, while returning home from a job interview scheduled by her vocational rehabilitation counselor. In a determination dated January 6, 2006, DOES denied both of Nixon's requests. A DOES Administrative Law Judge ("ALJ") sustained the denial, and the Compensation Review Board (the "CRB") upheld the ALJ's decision.

Nixon contends that the CRB decision upholding the denial of her claim for restoration of total disability benefits was not supported by substantial evidence; that because of DOES's delay in making a decision on Nixon's request to reconsider its decision to reduce her disability benefits and a decision on her request for medical benefits related to her vehicle accident, the law requires that her requests be deemed approved; and that the CRB misapplied the law in denying her claim for medical benefits. We reject the first two of these arguments and affirm the CRB's decision as to the reduction in Nixon's disability benefits. However, we reverse, and remand for further consideration, the CRB's ruling with respect to Nixon's claim for medical benefits in connection with her head injury.

I. Standard of Review

We review decisions of the CRB under the "substantial evidence" standard. Harris v. District of Columbia Office of Worker's Comp., 660 A.2d 404, 407 (D.C. 1995). This standard requires us to affirm the CRB's decision when: (1) the decision states findings of fact on each material, contested factual issue; (2) the findings are based on substantial evidence; and (3) the conclusions of law follow rationally from the findings. See Sodexho Marriott Corp. v. District of Columbia Dep't of Employment Servs., 858 A.2d 452, 454-55 (D.C. 2004). Substantial evidence is relevant evidence such as a "reasonable mind might accept as adequate to support a conclusion." Giles v. District of Columbia Dep't of Employment Servs., 758 A.2d 522, 524 (D.C. 2000) (quotation marks and citation omitted). Our deference to CRB decisions "extends to matters of statutory interpretation, yielding only where the [agency's] reasoning is unreasonable in light of the language of the statute, the legislative history, or judicial precedent." Sodexho, 858 A.2d at 455 (citation omitted).

II. Analysis

A. The Reduction in Nixon's Disability Benefits

In arguing that the ALJ's and CRB's decisions are not supported by substantial evidence in the record, Nixon points to the ALJ's finding that the District, Nixon's employer, met "its burden of demonstrating a change in [Nixon's] medical condition" (italics added) and to the CRB's agreement that the District "demonstrate[d] that there was a change in [Nixon's] medical condition to justify a modification in her benefits." (Italics added). Nixon contends that, contrary to these findings, the medical evidence in the record "proves that there was no significant change in the condition of [her] foot that would support a change or reduction in disability benefits." She cites both her own testimony that the condition of her foot has "not improved for the better" and physician reports in the record that confirm that she reached "maximum medical improvement in 1998" -- meaning, Nixon argues, that there was no change in her medical condition in 2004, the year when the District determined to reduce her benefits.

The issue before the ALJ, however, was whether there was a change in Nixon's medical condition from the time when it was previously determined that she qualified for temporary total disability benefits. The record shows that a DOES Hearings and Appeals Examiner found in October 1997 that Nixon "had not reached maximum medical improvement"*fn2 following her January 1996 work-related injury and that the District had failed to prove that Nixon was no longer disabled from that injury. But when DOES announced nearly seven years later, in September 2004, that it would reduce Nixon's benefits, the change on which it relied was that Nixon had reached maximum medical improvement in the years between 1997 and 2004, and no longer was totally disabled.

More specifically, DOES relied on an April 23, 2004 letter from Independent Medical Evaluator ("IME") Dr. Noel Gressieux, opining that Nixon had reached maximum medical improvement" and was "capable of returning to sedentary type of work"; and on a July 8, 2004 letter from IME Dr. Robert Smith, who agreed that Nixon had reached "maximum medical improvement with regard to orthopedic treatment and any type of surgery" and opined that, with some continued "limited treatment to control her pain syndrome on a permanent basis," she "could do a sedentary type job, full time with standing and walking limited to 10 minutes out of every hour." Both IMEs concluded that five sedentary positions identified in a Labor Market Survey and Job Search conducted by Vocational Assessment Services were commensurate with Nixon's limitations. The ALJ found that with the foregoing evidence, the District had met its burden of proof with respect to a modification of benefits and that the burden therefore shifted to Nixon to "bring forth medical evidence to show that she [was] not able to return to not only her regular duties but the identified sedentary duties as well." Nixon attempted to meet that burden by offering a March 24, 2006 letter from her treating physician, Dr. Howard Horowitz, but Dr. Horowitz corroborated the IMEs' opinions that Nixon had reached maximum medical improvement and that "there [was] no impediment to her engaging in [sedentary] employment ...

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