Petition for Review of a Decision of the District of Columbia Department of Employment Services (CRB62-08).
The opinion of the court was delivered by: Oberly, Associate Judge
Before WASHINGTON, Chief Judge, and KRAMER and OBERLY, Associate Judges.
Dissenting opinion by Associate Judge KRAMER at page 16.
The Compensation Review Board of the District of Columbia Department of Employment Services held that Lavern Bentt suffered an injury arising out of and in the course of her employment for which the exclusive remedy is provided by the District of Columbia Workers' Compensation Act, D.C. Code § 32-1504 (2001). We reverse.
I. Factual Background and Procedural History
This case is before us for a second time. In our earlier opinion, Georgetown University v. District of Columbia Dep't of Employment Servs., 830 A.2d 865 (D.C. 2003) ("Bentt I"), we described the facts as follows:
In 1994, claimant Lavern Bentt, M.D., was employed as a fellow [in pain management in the Department of Anesthesiology] at the Georgetown University Hospital.... On October 2, 1994, Dr. Bentt experienced some "difficulty" in her left lower ankle when she attended on her own time a banquet while wearing tight shoes. At the beginning of the following work week she "noticed [she] was having a new discomfort in her left ankle...."
During the ensuing work days, Dr. Bentt's colleagues and her supervisor, Charles A. Buzzanell, M.D., noticed that she was limping throughout the day and he offered to treat her condition. She declined but, on or about October 6, 1994, when Dr. Buzzanell offered again to administer a nerve block to Dr. Bentt's left ankle area, she accepted. They went to a treatment room at a time they had agreed upon and, in the presence of the senior resident, Dr. Buzzanell administered the injection. The ankle then, "felt a lot better." She "thanked him very much, and... continued on with [her] day." Although the injection provided temporary relief, the next day the pain returned. At Dr. Bentt's request, Dr. Buzzanell administered a second nerve block on October 7, 1994, which contained a lower level of steroids. The second nerve block did not reduce the level of pain for long, and after several days Dr. Bentt sought other medical attention. Over a period of time, Dr. Bentt's pain lessened. However, the skin in the area in which the nerve block injections were administered became ulcerous. Dr. Bentt had to have surgery to cover the ulcerated region.
Bentt initially filed a medical malpractice lawsuit against the Hospital in the Superior Court of the District of Columbia. Bentt I, 830 A.2d at 869. Before the matter went to trial, the Hospital moved for summary judgment on jurisdictional grounds, arguing that Bentt suffered a workplace injury for which the sole remedy was workers' compensation. Id. "Mindful of the holding of this court in Harrington v. Moss, 407 A.2d 658, 661-62 (D.C. 1979), the Superior Court stayed the civil matter in order to permit the Department of Employment Services to determine whether it has jurisdiction over the matter pursuant to the Workers' Compensation Act." Bentt I, 830 A.2d at 869.
Bentt then filed a claim with DOES, seeking a denial of benefits in order to be able to pursue her tort action. Bentt I, 830 A.2d at 869. A DOES Hearing Examiner initially issued a Compensation Order finding that Bentt did not sustain an injury "arising out of and in the course of her employment." Id. The Hearing Examiner reasoned that because "the conditions of [Bentt's] employment did not play a role in her original left foot and ankle conditions," evidence pertaining to the injections that Buzzanell administered in order to treat those conditions was "irrelevant." Id. at 871-72. The Hospital appealed that decision to the Director of DOES, who affirmed the Order of the Hearing Examiner. The Hospital then sought this court's review.
Rejecting as "not sustainable" the Hearing Examiner's assessment of the relevance of the injections, we reversed and remanded the agency's decision. Bentt I, 830 A.2d at 872. We observed that to determine whether an injury "arises out of" employment, this court has adopted the positional-risk test. "Under the positional-risk test, an injury arises out of employment so long as it would not have happened but for the fact that conditions and obligations of the employment placed claimant in the position where she was injured." Id. at 872. Although we observed that "the existing record could itself serve as an adequate basis" for holding that Bentt's injury arose out of and in the course of her employment, we did not conclusively determine that question. Instead, noting that the record before us at the time did not include "the depositions of Dr. Bentt and Dr. Buzzanell (other than an excerpt)," we "return[ed] the case to the agency" to allow a "hearing examiner [to] address the causal significance of the injections - something he did not do originally - and make appropriate findings of fact and conclusions of law." Id.*fn1
On remand, an Administrative Law Judge issued a Compensation Order on Remand in which, per Bentt I, he examined the "causal significance of the injections." Bentt I, 830 A.2d at 872. The ALJ, however, found a result that Bentt I did not anticipate: the injections did not arise out of Bentt's employment. As the ALJ explained, "there was no work-related event, activity, or requirement in the regular performance of [Bentt's] employment that would have exposed her to receiving nerve block injections." The ALJ found "nothing in the record that allows for the conclusion that by walking rounds [Bentt] was exposed to the potential of receiving nerve block injections or the resulting complications she had from those injections."
The Hospital appealed to the Compensation Review Board, and the Board reversed. The Board acknowledged that its review was "limited to making a determination as to whether the [ALJ's] factual findings... [were] based upon substantial evidence in the record, and whether the legal conclusions drawn from those facts [were] in accordance with applicable law." But the Board appears to have felt constrained by the statement in Bentt I that the record before us "could" have been deemed sufficient to hold that Bentt's injuries were compensable under the Act. Bentt I, 830 A.2d at 872. Accordingly, the Board concluded that "had the ALJ properly applied the positional risk standard... as ordered by the Court of Appeals in the instant matter, the result would be that the injection administered by Dr. Buzzanelli [sic]... would be classified as [a compensable] injury." The Board did not point to any facts in support of this conclusion, and aside from noting this court's ruling in Bentt I, the Board did not explain why it believed that the ALJ erred in applying that test.
So the case went back to the ALJ once more, and, complaining that the "Board in effect [had] decreed this result," the ALJ issued a Second Compensation Order on Remand, in which he reluctantly held that Bentt's injuries arose out of and in the course of her employment. The ALJ observed that Bentt I refused to rule on this question definitively and remanded instead for further findings. Yet, apparently feeling that his hands were tied by the Board, the ALJ abandoned his earlier finding that nothing in the record suggested that Bentt's employment exposed Bentt to receiving injections. Instead, the ALJ concluded that Bentt's claim was compensable because (1) Bentt "was within the boundaries of time and space created by her employment at [the] time she received the injections"; and (2) "the injections arose directly from her limping and obvious discomfort as she performed her work." Per the Board's instruction in its reversal of the first Compensation Order on Remand, the ALJ also supplemented the record to include a complete copy of Buzzanell's deposition.
Then Bentt appealed to the Board, and this time, the Board affirmed. The Board reasoned that but for Bentt's employment with the Hospital, "she would not have obtained the injurious injections." The Board also stated, without citing any evidence in the record, that the injections "were presumably given at least in part to enhance [Bentt's] ability to continue to ...