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Golding-Alleyne v. District of Columbia Dep't of Employment Services

September 24, 2009

PORTIA GOLDING-ALLEYNE, PETITIONER,
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT, AND WASHINGTON HOSPITAL CENTER, INTERVENOR.



Petition for Review of a Decision of the District of Columbia Department of Employment Services (CRB168-07).

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

Argued January 6, 2009

Before RUIZ and FISHER, Associate Judges, and STEADMAN, Senior Judge.

Petitioner Portia Golding-Alleyne challenges the denial of her claim for workers' compensation benefits. After an evidentiary hearing, the Administrative Law Judge ("ALJ") found that petitioner had "failed to sustain her burden to establish entitlement to a permanent partial award for the left leg." The Compensation Review Board affirmed the ALJ's decision, concluding that it "is supported by substantial evidence of record and is in accordance with applicable law." We affirm.

I. Statement of Facts

Portia Golding-Alleyne was injured on September 10, 1993, when she slipped and twisted her back in the course of her employment at the Washington Hospital Center.Dr. Bruce Ammerman performed a laminectomy*fn1 on Ms. Golding-Alleyne in 1996. Since that time she has worked only sporadically (last in 2005, on a part-time basis), and she receives temporary total disability benefits.

Because petitioner Golding-Alleyne was still in severe pain, Dr. Ammerman performed another surgery on her back in May 2003, but she continued to experience back pain after the second procedure. Petitioner continues to receive treatment from Dr. Ammerman and also from Dr. Andre Cernea, a pain management specialist. Since 2003, she has been treated with "[p]hysical therapy, epidural blocks, selective spinal nerve-root blocks, and medication."

In 2005, Ms. Golding-Alleyne fell down some stairs in her home when, she claimed, her "left leg gave out" and tore the rotator cuff in her left shoulder. Dr. Ryan, an orthopedic surgeon, operated on her shoulder in October 2005. The parties agree that there has been no separate, work-related injury to petitioner's left leg.

Ms. Golding-Alleyne filed an Application for Formal Hearing, seeking an award of permanent partial disability benefits in addition to the temporary total disability compensation she currently receives.*fn2 She requested a "schedule award" equivalent to a 20% loss of her left leg. See D.C. Code § 32-1508 (3)(B) (2001).*fn3 At the hearing, Ms. GoldingAlleyne and the employer both introduced records from Drs. Ammerman and Ryan, and from therapists at the Physical Therapy and Sports Assessment Center. Petitioner testified about the pain and weakness in her leg, and claimed that she regularly informed all her doctors of the problems with her left leg. She testified that her left leg is "numb . . . every day," that it "cramps," and that it "gives out all the time," causing her to fall "four, five times . . . per month." Petitioner testified that she continues to receive medication and treatment for her back, leg, and shoulder, and that she goes to physical therapy regularly. Dr. Ammerman did not testify, either in person or by deposition, and the employer did not present a medical expert of its own.

On August 31, 2007, the ALJ issued a Compensation Order denying benefits, relying on the following findings of fact:

I find that there is no medical evidence that the claimant has ever been diagnosed with or treated for any symptoms, complaints, condition or disability of the left leg. I find that there is no medical evidence that the claimant [] experiences problems with her left leg of weakness, instability, giving way or buckling. I find that there is no medical evidence that the claimant has reached maximum medical improvement from a left leg condition. I find that there is no reliable medical evidence that the claimant has a disability of the left leg.

After reviewing the evidence, the ALJ concluded "that the claimant has failed to sustain her burden to establish entitlement to a permanent partial award for the left leg." Petitioner challenges these findings, asserting that they are not supported by substantial evidence.

II. Standard of Review

"Under the Administrative Procedure Act, this court may overturn a decision of the CRB only if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." McNeal v. District of Columbia Dep't of Employment Servs., 917 A.2d 652, 656 (D.C. 2007) (citing D.C. Code ยง 2-510 (a)(3) (2001), and Clark v. District of Columbia Dep't of Employment Servs., 772 A.2d 198, 201 (D.C. 2001)). "We affirm an administrative agency decision when (1) the agency made findings of fact on each contested material factual issue, (2) substantial evidence supports each finding, and (3) the agency's conclusions of law flow rationally from its findings of fact." Georgetown University v. District of Columbia ...


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