Petition for Review of a Decision of the Compensation Review Board of the District of Columbia Department of Employment Services.
The opinion of the court was delivered by: Thompson, Associate Judge
Before FISHER and THOMPSON, Associate Judges, and BELSON, Senior Judge.
In this case, petitioner Washington Metropolitan Area Transit Authority ("WMATA") has asked us to review a decision of the Compensation Review Board ("the Board"), upholding a determination by a Department of Employment Services Administrative Law Judge ("ALJ") awarding workers' compensation benefits to intervenor Hughey Payne, Jr. We have no difficulty affirming the Board's decision upholding the ALJ's finding that Payne was rendered temporarily totally disabled when the air conditioning at the Metro Station where he worked malfunctioned, exacerbating the symptoms of his pre-existing asthma. The Board's decision on this issue is supported by substantial evidence in the record and is neither unreasonable nor contrary to law. However, we are constrained to reverse the portion of the Board's decision upholding the ALJ's determination that Payne has an ongoing compensable disability. As we explain, (1) by looking only to whether Payne presented "substantial evidence" of current disability, the ALJ applied an erroneous standard of proof; (2) in reviewing the ALJ's decision, the Board utilized a standard that was appropriate only if the burden of proof had been WMATA's (which it was not); and (3) Payne's evidence was not so strong as to enable this court to conclude as a matter of law that Payne met the applicable burden of proof (preponderance of the evidence). We therefore remand for further proceedings.
Payne began work as a WMATA Metro Station manager in 2000. While working at the Foggy Bottom station during the summer of 2005, he began experiencing trouble breathing because of the high heat and humidity inside the station and malfunctioning air conditioning. In December 2005, he requested a transfer to the Farragut West station. He was working there on August 29, 2006, when the air conditioning in the station stopped working and he became dizzy, faint, and very weak. He left work, and since that date has not returned, having been advised by his physician that he should avoid the "dirty, dusty, underground [subway] station," and that he needs "a clean work area without temperature extremes to avoid worsening of his asthma."
Payne timely filed a claim for disability benefits, asserting that the dusty, hot and humid atmosphere inside the Metro station aggravated his asthma. In an October 31, 2007 Compensation Order, the ALJ found that Payne suffered an accidental injury on August 29, 2006, that the injury arose out of and in the course of his employment, and that his physical condition "is medically causally related to the work incident." Specifically, the ALJ determined that Payne's "exposure to dust and excessive heat while working as a station manager aggravated his asthma." The ALJ also found that the medical evidence supported Payne's contention that "the work exposure to dust and heat prevented him from returning to work in the metro tunnels."
WMATA sought review by the Board. In a January 28, 2008 Decision and Remand Order, the Board concluded that the ALJ's finding that Payne sustained a compensable injury was supported by substantial evidence. The Board noted in particular that independent medical examiner ("IME") Dr. Samuel Scott, who is Board-certified in internal and occupational medicine, agreed with Payne's treating physician, pulmonologist Dr. Earl Armstrong, that Payne's "asthma symptoms are exacerbated by hot, humid conditions." The Board also concluded, however, that the ALJ had erred by not allowing testimony from an industrial hygienist who had been engaged by WMATA to study the current condition of the air quality in the Farragut West and Foggy Bottom Metro stations. The Board reasoned that the excluded testimony was relevant to "the present nature and extent of [Payne's] disability, if any." Noting that both Dr. Scott and Dr. Armstrong had opined that Payne could return to work but "should avoid dusty areas and extreme temperatures," the Board stated that without evidence about current air quality, it could not determine whether to uphold the ALJ's determination that Payne's disability is ongoing and "indefinite." As the Board later explained in its September 3, 2008 final decision in this case, "the issue of continuing disability rests upon whether the air quality continues to be such that it violates [Payne's] treating physician's proscription on working in 'dusty area' or in 'extreme temperatures.'" The Board remanded the case to the ALJ on the issue of whether WMATA "had offered [Payne] return to work in an environment within his medically imposed restrictions."
At the remand hearing before the ALJ, Dr. Neil Jurinski, the certified industrial hygienist retained by WMATA, explained that he performed a study of the air quality at the Foggy Bottom station on February 27, 2008, and the Farragut West station on February 28, 2008.*fn1 He testified that the dust levels inside the Metro stations were approximately one one-hundredth of the limit set by the Occupational Health and Safety Administration ("OSHA"),*fn2 and that the level of dust outdoors near the stations was only slightly lower than the levels underground in the station managers' kiosks and in the subway platform areas, making the air quality in the outdoors and underground areas essentially "equivalent." Dr. Jurinski was aware of no study "that would associate the induction of a respiratory disease at this level of exposure."
In his April 30, 2008 Compensation Order on Remand, the ALJ again found that Payne's "condition continues to render him totally disabled." The ALJ explained that Dr. Jurinski's testimony did not address the current level of Payne's disability because Dr. Jurinski "could not provide a medical opinion regarding Claimant's ability to return to work" and because "[n]o physician ha[d] reviewed" his findings. The ALJ reasoned that "it would be highly speculative to conclude that the dust levels found in the metro tunnels were not of a sufficient level to prevent [Payne] from returning to work."
The ALJ also noted that Dr. Jurinski's analysis of dust levels did not consider other environmental factors, such as temperature. The ALJ noted that Payne's physicians had stated that he "could not perform the requirements of the station manager position due to exposure to hot and cold temperatures." The ALJ observed that WMATA had not taken steps to rehabilitate Payne for alternative employment and had not offered Payne employment "consistent with his medical restrictions."
In a September 3, 2008 decision, the Board affirmed the ALJ's decision that Payne's disability was ongoing. The Board reasoned:
What is missing from the record is whether the results of the air quality studies are or are not what Respondent's treating physician calls "dusty." The ALJ concluded, by inference at least, that the uncontradicted testimony of Dr. Jurinski described above did not constitute testimony sufficient to demonstrate that the air in the Metrorail stations was not impermissibly "dusty." As the ALJ put it, "No physician has reviewed the findings of Dr. Jurinski, and thus it would be highly speculative to conclude that the dust levels found in the metro tunnels were not of a sufficient level to prevent Claimant from returning to work. This is the central crux of the decision of the ALJ. While we do not necessarily agree with the ALJ that a finding that air quality that exceeds by a factor of 100 the permissible OSHA standards for "dust" is insufficient to find, without undue speculation, that such air is not in any sense of the word "dusty," nor do we agree with what is at root the argument of Petitioner in this appeal, that such evidence compels, without more, a conclusion that the air is sufficiently dust-free to permit this worker to return to this environment. While it is true that the testimony of Dr. Scott, the IME physician, that dust levels meeting the OSHA standards would not be expected to cause Respondent to be excluded from a worksite, that testimony was premised upon Respondent's condition being "controlled by medication,"... a precondition that presumes a circumstance not otherwise demonstrated to exist at this time. Further, Dr. Scott's opinion on this is an IME opinion, and we do not have a similarly specific opinion from Dr. Armstrong, the treating physician.
Summarizing its conclusion, the Board stated that "[b]ecause the reports and testimony of Dr. Jurinski merely permit, but do not compel, a conclusion that [Payne] could return to work without being exposed to dust beyond the limits imposed by his treating physician, the determination by the ALJ that they do exceed those limits is not an abuse of the ALJ's discretion as fact finder, and the award of continuing disability is ...