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

December 3, 2009


Petition for Review of a Decision of the Compensation Review Board (CRB-107-08).

The opinion of the court was delivered by: Terry, Senior Judge

Argued March 24, 2009

Before WAGNER, TERRY, and KING, Senior Judges.

In this workers' compensation case, petitioner Robin Wiley challenges a decision by the Department of Employment Services ("DOES") denying her request for temporary total disability benefits for a period of time during which she was absent from work, and for reimbursement of expenses she incurred in consulting a physician who, the DOES determined, was not her authorized treating physician. The precise issue before us is whether substantial evidence supports the DOES finding that she had selected another physician as her treating physician. We hold that substantial evidence does support that finding, and accordingly we affirm the order under review.


Ms. Wiley was employed as a secretary at the Washington Hospital Center ("WHC" or "the hospital") when, on September 27, 2006, she slipped and fell at work, injuring her right ankle. She sought and received attention in the WHC emergency room. An emergency room physician sent her home with an ice pack and crutches. and instructed her to remain off work until October 2. She was also directed to report to WHC's occupational health unit upon her return to work.

When Ms. Wiley reported to the occupational health unit on October 2, she met with Nurse Arlene Sheets. In the course of examining her, Nurse Sheets reviewed with Ms. Wiley various workers' compensation forms, and Ms. Wiley signed a "Workers' Compensation Rights and Responsibilities" form*fn1 which stated, inter alia, "I also understand that I have a right to choose the physician providing care for my injury and that this physician will be paid directly by [my employer's insurer]." This document authorized Ms. Wiley to select either "Washington Hospital Center Occupational Health Providers" or a doctor of her own choosing as her treating physician.

Nurse Sheets, testifying at the hearing on Ms. Wiley's claim, said that she informed Ms. Wiley orally of her right to choose her own treating physician and asked if she wanted her treating physician to be Washington Hospital Center or "your private doctor or a specialist of your choice." Ms. Wiley replied that she had just moved to Washington from another city, and thus she did not yet have a personal physician; she therefore "said Washington Hospital Center," and Nurse Sheets made an entry to that effect on the form.

Ms. Wiley returned on October 5 and was examined by Nurse Sheets and by Dr. Ross Myerson, a WHC physician. Dr. Myerson diagnosed her injury as a sprain and concluded that she was capable of returning to work with modified duties in a sedentary position. Nurse Sheets then contacted Ms. Wiley's supervisor to arrange for appropriate accommodations. Ms. Wiley was provided with a stationary desk and a chair with wheels so that she could perform her secretarial duties without having to get up from her work station and move around, since she was still on crutches. According to her supervisor, who also testified at the hearing, Ms. Wiley successfully performed her regular duties and did not express any difficulty in doing so. A few days later, however, Ms. Wiley complained to Nurse Sheets that although she was feeling better, she was having difficulty sleeping on account of the pain in her ankle.

Ms. Wiley had an appointment to meet again with Dr. Myerson on October 12. She canceled that appointment, however, and began seeing another physician, Dr. Fredric Salter, to whom her attorney had referred her. After examining her, Dr. Salter diagnosed her with a sprained ankle and a contusion of the right foot; consequently, he concluded, she was incapable of working and recommended that she not go to work at all. Following his recommendation, Ms. Wiley remained off work from October 11 to October 23.

Ms. Wiley thereafter sought temporary total disability benefits for the entire period during which she was absent from work, as well as reimbursement of her medical bills from Dr. Salter. After an evidentiary hearing, an administrative law judge ("ALJ") issued a compensation order denying Ms. Wiley's claim for benefits. In her order the ALJ first addressed whether Dr. Myerson was Ms. Wiley's treating physician. Although Ms. Wiley testified that she never met with Dr. Myerson, the ALJ did not credit her testimony to that effect because it was inconsistent with other credible evidence. The ALJ further found that Ms. Wiley knowingly reviewed and signed the form designating WHC Occupational Health Providers as her treating physicians, and that she thereafter met with Dr. Myerson, rejecting Ms. Wiley's assertion that she did not select a treating physician until she later met with Dr. Salter. The ALJ found that Ms. Wiley had selected Dr. Myerson as her treating physician, a finding supported by her statement at the hearing that Dr. Salter was her second choice of physicians.

Having determined that Dr. Myerson was her treating physician, the ALJ gave his medical opinion greater weight than that of Dr. Salter. The ALJ concluded that Ms. Wiley did not seek a change of treating physicians through the proper procedures. See 7 DCMR § 212.13 (2000). The ALJ further found that Ms. Wiley performed her work duties successfully after accommodations were made for her injury, and therefore determined that she had voluntarily limited her income by staying home from work. Accordingly, the ALJ issued a compensation order denying her request for benefits.

Ms. Wiley filed an administrative appeal from the ALJ's compensation order to the Compensation Review Board ("CRB"). The CRB affirmed the compensation order for the reasons stated by the ALJ, rejecting Ms. Wiley's argument that this court's decision in Ceco Steel, Inc. v. District of Columbia Dep't of Employment Services, 566 A.2d 1062 (D.C. 1989), precluded a finding that Dr. ...

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