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

May 6, 2010

DEBORAH CHANGKIT, PETITIONER,
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT.



Petition for Review of a Decision of the District of Columbia Department of Employment Services.

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

Submitted March 17, 2010

Amended August 12, 2010

Before PRYOR, SCHWELB, and KING, Senior Judges.

Deborah Changkit has asked this court to review a decision of the Compensation Review Board (CRB) of the District of Columbia Department of Employment Services (DOES), issued on May 16, 2008, affirming a compensation order entered by an Administrative Law Judge (ALJ) on February 26, 2008, denying Ms. Changkit's application for reinstatement of her temporary total disability (TTD) benefits. Ms. Changkit contends that the ALJ failed to accord appropriate weight to the opinions of her treating physicians and that he made a number of related errors of fact and law. We reverse the decision of the CRB and remand the case with directions to reinstate Ms. Changkit's benefits.

I. PROCEDURAL AND FACTUAL BACKGROUND

Ms. Changkit worked as a laboratory technician with the District of Columbia Department of Human Services (DHS) from 1988 until 1993. On October 4, 1993, Ms. Changkit fell while she was at work, and she severely injured her back and left knee. Ms. Changkit filed a timely claim for workers' compensation benefits for her injuries, and she was initially paid such benefits. On August 3, 1994, however, Ms. Changkit's benefits were terminated by the Office of Disability and Crime Victims' Compensation (ODCVC). The termination of benefits was based on a medical report dated June 2, 1994 by Louis Levitt, M.D., who has remained a central figure in this controversy for the past sixteen years.

Dr. Levitt had evaluated Ms. Changkit at ODCVC's request. Id. In his report, Dr. Levitt found that Ms. Changkit had "no permanent injury... exclusively attribut[able] to the October 4, 1993 work trauma." Rather, Dr. Levitt concluded that Ms. Changkit's back and knee pain was attributable to a 1987 motor vehicle accident in which she was injured prior to her accident at work. Id.

Ms. Changkit contested the ODCVC's decision to terminate her benefits. At a hearing held on January 18, 1995, Ms. Changkit rebutted Dr. Levitt's report by introducing the medical opinions of her three treating physicians, who were all of the opinion that Ms. Changkit's back and knee injuries were causally related to her work injury, and that she was totally disabled. On June 13, 1995, the hearing examiner issued an order in which he accepted the opinions of Ms. Changkit's treating physicians and rejected Dr. Levitt's contrary conclusions. On June 14, 1995, the Deputy Director of DOES for Labor Standards issued a Final Compensation Order in which he upheld the hearing examiner's decision and awarded Ms. Changkit continuing temporary total disability benefits and compensation for related medical expenses.

Based on the foregoing order, Ms. Changkit received her benefits for almost four years. On April 14, 1999, however, her benefits were again terminated. Once again, termination was sought, in part, on the basis of a report by Dr. Levitt. Dr. Levitt examined Ms. Changkit, this time at the request of the "Third Party Administrator" for the District of Columbia's workers' compensation plan, and he concluded, once again, that notwithstanding Ms. Changkit's "subjective complaints of pain," her "physical condition was unremarkable with no evidence of active pathology about the spine or extremities." Id. Ms. Changkitwas also examined, inter alia, by Donald K. Nelson, M.D., who concluded in a six-page neurological opinion that she was no longer disabled from performing her regular duties as a medical technician.

Ms. Changkit appealed from the termination to a DOES Hearing and Appeals Examiner. On October 27, 1999, following a hearing, the examiner issued a recommended decision in which he concluded that Ms. Changkit was no longer entitled to receive disability benefits. In reaching this decision, however, the examiner relied on Dr. Nelson's analysis, but he explicitly declined to consider Dr. Levitt's recommendation, citing Dr. Levitt's perceived lack of impartiality:

The record clearly reveals Dr. Levitt examined claimant in 1994 as well as in 1998. On this record, however, I am persuaded employer's reliance on Dr. Levitt's medical position is misplaced. There is clearly a question of Dr. Levitt's ability to serve as an "impartial medical examiner" when he has previously examined claimant following the original injury and has a written record of his observations and diagnoses. To rely upon Dr. Levitt's medical opinion in this case would certainly contravene the level of impartiality which employer strives to maintain in these types of cases. Accordingly, I am persuaded Dr. Levitt's medical opinion shall not be considered herein.

Ms. Changkit challenged the Hearing and Appeals Examiner's recommended decision before the Director of DOES. The Director concluded that the examiner had not provided adequate reasons for rejecting the opinions of Ms. Changkit's treating physicians, and that the examiner's finding that Ms. Changkit was no longer suffering from a disability causally related to her 1993 work accident was not supported by substantial evidence. As a result of the Director's decision, Ms. Changkit's benefits were again reinstated.

On November 9, 2006, the District of Columbia's Disability Compensation Program terminated Ms. Changkit's disability benefits for a third time. This decision to do so was based on a third medical opinion by Dr. Levitt, issued on June 6, 2006. Dr. Levitt again concluded, as he consistently had since 1994, that the condition of Ms. Changkit's back was not attributable to her accident at work. Rather, in Dr. Levitt's view, Ms. Changkit was experiencing a naturally progressing symptom of a pre-existing "degenerative disc disease to the lumbar spine." With respect to Ms. Changkit's knee, Dr. Levitt wrote that he "did not have specific evidence" regarding prior medical procedures and that "it would be impossible to rate her impairment with the information available."

Ms. Changkit appealed from the third termination of her benefits to the Office of Hearings and Adjudication (OAH). On February 20, 2007, an ALJ of the OAH held an evidentiary hearing to consider Ms. Changkit's claim. Ms. Changkit testified that she was in constant pain, and that her condition had not improved since the date of her fall at work. She stated that [after] the [1989] car accident I was still able to work. I had some pain. As it got later, closer to the surgery there was a lot of pain. But after I fell I was in excruciating pain all the time. It wasn't just sometimes, it was all the ...


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