Petition for Review of a Decision of the District of Columbia Department of Employment Services. (CRB217-08).
The opinion of the court was delivered by: Nebeker, Senior Judge
Submitted December 2, 2009
Before RUIZ and KRAMER, Associate Judges, NEBEKER, Senior Judge.
Benjamin Ramey petitions for review of an order of the Compensation Review Board ("CRB") affirming the decision of the Administrative Hearings Division ("AHD") of the Office of Hearings and Adjudication ("OHA") in the District of Columbia Department of Employment Services ("DOES"), to deny petitioner's workers' compensation benefits. The administrative law judge (ALJ) for the AHD found that petitioner did not sustain psychological harm which arose out of, and during the course of, his employment. Thus, he was not entitled to workers' compensation benefits under the District of Columbia Workers' Compensation Act ("WCA"), D.C. Code § 32-1501 et seq. We hold that the ALJ's findings are supported by substantial evidence and that the CRB's decision is in accordance with the law. Therefore, we affirm the order of the CRB.
The instant petition arises out of events that occurred over Labor Day weekend, on or around August 30, 2003. Just before midnight on the evening in question, petitioner Ramey, a conduit installer at Potomac Electric Power Company (PEPCO), was called into work to drive a commercial motor vehicle on "storm duty." At approximately 3:00 a.m., "an assignment came up" for petitioner and his supervisor, Gregory Johnson, Sr., sent a crew out in search of him. Another employee found petitioner and reported back to Mr. Johnson that petitioner "was in no condition to drive." When petitioner reported to Mr. Johnson's office, Mr. Johnson noticed that his speech was slurred, his sentences were unintelligible, his breath smelled of alcohol, he was unsteady on his feet and his eyes were a little bloodshot.
Mr. Johnson transported petitioner to the main PEPCO office building, where they met with David Duarte, who was then a Senior Labor Relations Specialist, whose duty it was to determine whether a PEPCO employee needed to be drug tested upon suspicion of impairment related to drug or alcohol use. Mr. Duarte also noticed that petitioner "reeked of alcohol" and that he was "very, very unsteady on his feet . . . was slurring his words . . . [and] his eyes were very, very bloodshot." Mr. Duarte testified that he made the decision to test petitioner under the company policy requiring drug and alcohol testing of an employee who arrives to work under the apparent influence of drugs or alcohol. Lamar Dudley, a union representative, was also called to the scene and remained with petitioner throughout the morning.
Mr. Johnson testified that petitioner was told that he would be taken to undergo drug and alcohol testing. Negussie Birratu, an employee relations specialist, was also called to the PEPCO office. He traveled with Mr. Johnson, Mr. Dudley, and petitioner in an attempt to locate a drug and alcohol testing facility. After two unsuccessful attempts, at two separate medical facilities, to have petitioner tested, and after driving around for approximately five hours, the men returned to PEPCO's main office. Thomas Hyde, a drug-testing coordinator for the federal government, was then called to the PEPCO office building to conduct a Breathalyzer test. Mr. Hyde testified that petitioner tested positive for drugs and/or alcohol.
After petitioner's test results came back positive, he was placed on a five-day crisis suspension and told that he had to enroll in a drug and alcohol rehabilitation program in order to maintain his employment. Petitioner returned to work in early September and continued to work without incident until he was placed on Decision Making Leave ("DML") on September 30, 2003. The DML led to petitioner's placement on a three-year probation, and to his referral to the KOLMAC alcohol rehabilitation program on October 13, 2003. Petitioner was discharged from the program on October 27, 2003, because he continued to drink alcohol. He then sought medical and psychological treatment, at which time he was diagnosed by a counselor with post-traumatic stress disorder ("PTSD"). He was terminated from his employment after his employer discovered that he was discharged from the rehabilitation program.
Petitioner testified that he was mistreated and disrespected on the morning of August 30, 2003. He indicated that he initially was unaware of where he was being taken and that he feared for his life. He claimed that he began experiencing nightmares, symptoms of anxiety, trouble sleeping and a loss of interest in daily activities shortly after the incident. He also claimed that he urinated on himself because he was not allowed to use the bathroom while the group was driving around in search of a testing facility and that everyone at his office was talking about it, causing him to feel embarrassed. Therefore, petitioner filed for workers' compensation after he was terminated from PEPCO, alleging that the events of August 30, 2003, caused him to develop PTSD. He sought temporary total disability benefits from November 3, 2003 to the present, and payment of medical expenses.
PEPCO contested the claim, arguing that petitioner did not sustain a psychological injury from work-related mental or emotional stress. The case first came before ALJ Amelia Govan on August 17, 2005. Petitioner and Mr. Dudley testified on behalf of petitioner and Mr. Johnson, Mr. Birratu, Mr. Hyde and Mr. Duarte testified on behalf of respondent. Contrary to petitioner's testimony, Mr. Dudley testified that the atmosphere was jovial in the car on the way to the first testing facility. Mr. Johnson and Mr. Birratu both testified that they did not make any threatening movements towards petitioner, and that they did not poke fun at petitioner for urinating on himself. In a Compensation Order dated March 17, 2006, Judge Govan denied petitioner's request for workers' compensation benefits. The CRB upheld the ALJ's order.
In Ramey v. District of Columbia Dep't of Employment Servs., 950 A.2d 33 (D.C. 2008) (Ramey I), we remanded the case for the CRB to reconsider its decision in light of our decision in McCamey v. District of Columbia Dep't of Employment Servs., 947 A.2d 1191 (D.C. 2008) (en banc), which had been decided after the CRB's initial decision in this case, but while the petition for review was pending before this court. In McCamey, we remanded the case so that the CRB could structure a test for determining employee entitlement to compensation for injuries that occurred during employment. Prior to this court's holding in McCamey, DOES utilized a so-called "objective test" or standard for determining entitlement to compensation in cases involving psychological harm caused by employment-related stress ("mental-mental" cases). Id. at 1201.
Under the objective standard, in order for the claimant to demonstrate psychological injury arising from work-related stress, he had to establish "that the actual working conditions could have caused similar emotional injury in a person who was not significantly predisposed to such injury." Ramey I, 950 A.2d at 34 (emphasis in original). In ALJ Govan's March 17, 2006 Compensation Order, she concluded that petitioner was not entitled to benefits because the events of August 30, 2003, would not have caused emotional injury to a person not predisposed to such injury. Id. Because the application of this objective test ran contrary to our decision in McCamey, where we emphasized that "[t]he objective test . . . cannot be reconciled with the clear language of the [Workers' Compensation Act] . . . which provide[s] in straightforward language that the Act compensate[s] workers for injuries they suffer on the job," 947 A.2d at 1213 (emphasis in original), we reversed the CRB's affirmance of the ALJ's order and remanded the case back to the Board for reconsideration. 950 A.2d at 35.
On July 24, 2008, upon reconsideration, the Board adopted a new standard, to be applied to mental-mental claims in light of McCamey, described in detail below, and resubmitted the case to ALJ Govan to decide in accordance with the new standard. ALJ Govan applied the new standard to the facts of the case and on August 25, 2008, she issued a new compensation order, again denying petitioner's ...