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Washington Hospital Center v. District of Columbia Dep't of Employment Services

November 12, 2009

WASHINGTON HOSPITAL CENTER, PETITIONER,
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT, AND CAROL MIDDLEDORF KELLY, INTERVENOR.
CAROL MIDDLEDORF KELLY, CROSS-PETITIONER,
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT, AND WASHINGTON HOSPITAL CENTER, INTERVENOR.



On Petitions for Review of Decisions of the Compensation Review Board (CRB No. 06-20)

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

Argued December 18, 2008

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

Petitioner, Washington Hospital Center (WHC), seeks our review of the Compensation Review Board's (CRB) order affirming the decision of Administrative Law Judge (ALJ) Jeffrey Russell, granting in part the claim for workers' compensation benefits filed by Carol Middledorf Kelly. In turn, Kelly cross-petitions for our review of the CRB's order affirming the ALJ's decision not to adjust the computation of her average weekly wage. For the reasons that follow, we affirm the CRB's order with respect to the employer's petition, but grant the cross-petition and remand the case for proper calculation of claimant's average weekly wage.

I.

On November 2, 1993, claimant injured her lower back in the course of her employment as a nuclear medicine technician with Washington Hospital Center, while assisting a patient to alight from a table. WHC voluntarily paid medical expenses for back surgery as well as benefits for total temporary disability; then when Kelly began part-time light duty work (which she did until March 12, 2001), WHC paid reduced benefits for partial temporary disability because it believed she was voluntarily limiting her opportunities for employment.

On April 3, 2001, Kelly filed a claim seeking permanent total disability benefits and a modification to the stipulated average weekly wage.*fn1 A formal hearing was held before ALJ Karen Calmeise on March 13, and March 21, 2002. ALJ Calmeise left the agency without issuing an opinion in the case, and the matter was eventually assigned to ALJ Jeffrey Russell,*fn2 who held a formal hearing on February 23, and April 5, 2005.

On November 29, 2005, ALJ Russell issued the order which both parties ask that we review. ALJ Russell found that:

Claimant's condition is characterized by constant severe physical pain in her low back and legs,... physical weakness, nausea, dizziness, sleep disruptions and irregularity, anxiety and psychological distress, with attendant difficulties concentrating and focusing on detailed tasks. Her symptoms wax and wane, but are present at all times. Claimant is unable to drive herself safely, and her periods of fatigue and other conditions are irregular and unpredictable.

Middledorf v. Wash. Hosp. Ctr. (Middledorf III), No. 96-321E, slip op. at 5-6 (Administrative Hearings Division November 29, 2005), available at 2005 D.C. Wrk. Comp. LEXIS 317. The ALJ based his conclusions on the testimony of claimant's expert, Dr. Bussey, which he credited, and of the claimant, to whom he "accord[ed] a high degree of credibility." Id. slip op. at 5. Referring to the report of the employer's vocational expert, ALJ Russell noted that while "probably correct [in opining] that there are some persons with similar conditions who might be employable[,] the difference... between this [c]laimant and some other similarly trained, experienced and educated individual... is... this claimant's conditions, which are multiple and varied, and are each unpredictable and varying independently of one another." Id. ALJ Russell concluded that "[c]laimant is permanently totally disabled as a result of the work injury... and that the previously established average weekly wage is res judicata." Id. slip op. at 5-6. Upon review, the CRB affirmed the Compensation Order. Middledorf v. Wash. Hosp. Ctr. (Middledorf IV), No. 06-20, slip. op. at 6 (Compensation Review Board March 23, 2007), available at 2007 D.C. Wrk. Comp. LEXIS 157.

II.

The Hospital argues that the ALJ failed to consider the testimony of its two vocational experts, Doctors Koslow and Capizzi, and that the ALJ erred in refusing to allow Dr. Koslow to testify at the formal hearing. With respect to the award of permanent total disability benefits, the Hospital argues that the start date is "speculative" and the amount is in excess of what the employee asked for.

"Although our review of agency decisions is deferential,... [o]ur principal function 'in reviewing administrative action is to assure that the agency has given full and reasoned consideration to all material facts and issues.'" Georgetown Univ. Hosp. v. District of Columbia Dep't of Employment Servs., 916 A.2d 149, 151 (D.C. 2007) (quoting Dietrich v. District of Columbia Bd. of Zoning Adjustment, 293 A.2d 470, 473 (D.C. 1972)). Nevertheless, we do not require an ALJ to give reasons for accepting one expert's opinions rather than another's. See Washington Hosp. Ctr. v. District of Columbia Dep't of Employment Servs., 821 A.2d 898, 904 (D.C. 2003). Nor do we require an ALJ to "inventory the evidence and explain in detail why a particular part of it was accepted or rejected." Sturgis v. District of Columbia Dep't of Employment Servs., 629 A.2d 547, 554 (D.C. 1993). Here, the ALJ specifically credited the testimony of claimant and her expert, Dr. Bussey, which directly contradicted the testimony and reports of the Hospital's vocational experts. Of necessity, the ALJ rejected their expert opinion, but that does not mean that the ALJ failed to consider it.

Although it appears that the Compensation Order mistakenly attributed Dr. Koslow's opinions to a Dr. Malcolm, the discussion in the Compensation Order giving reasons for rejecting that testimony in favor of that of both Dr. Bussey and the claimant makes clear that the ALJ considered the substance of Dr. Koslow's report.*fn3 That the ALJ did not refer specifically to Dr. Capizzi's opinions is not surprising as they were relevant to petitioner's argument that ...


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