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Horace E. v. District of Columbia Department

August 16, 2012

HORACE E. HENSLEY, PETITIONER,
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT, AND CHEECHI & COMPANY, ET AL., INTERVENORS.



Petition for Review of a Decision of the District of Columbia Department of Employment Services (CRB075-10)

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

Submitted March 27, 2012

Before GLICKMAN and THOMPSON, Associate Judges, and SCHWELB, Senior Judge.

Petitioner Horace Hensley, who has received worker‟s compensation benefits based on total disability since the late 1980‟s, sought an additional award requiring his former employer, intervenor Cheechi & Company (the "Employer"), to reimburse his expenses for certain medical, assisted-living, transportation, home attendant, and other services, all of which petitioner claims relate to workplace aggravation (in 1986) of the progressive disease that affects his joints. Petitioner also sought an order establishing his entitlement to payment of a 20% penalty as a result of the Employer‟s failure to make timely payment of scheduled cost-of-living adjustments ("COLAs") for the period from February 22, 1990, through July 13, 1997.*fn1 In a February 3, 2010, Compensation Order, an Administrative Law Judge ("ALJ") of the Department of Employment Services ("DOES") rejected petitioner‟s expense-reimbursement claim, but agreed that petitioner is entitled to payment of the 20% penalty amount. Upon its review of the Compensation Order, the DOES Compensation Review Board (the "Board" or the "CRB"), in a June 29, 2011, Decision and Order, upheld the ALJ‟s determination denying the expense reimbursement, but reversed the ALJ‟s determination as to the 20% penalty. Petitioner challenges both of the CRB‟s rulings. We affirm the CRB‟s ruling as to petitioner‟s expense-reimbursement claim, but reverse its ruling as to the 20% penalty and remand on that issue.

I.Background

There is no dispute that petitioner has suffered from ankylosing spondylitis ("AS"), a progressive, chronic, inflammatory arthritic ailment, since sometime in the 1970‟s. Petitioner‟s treating rheumatologist, Dr. Donald Thomas, testified during his March 31, 2004, deposition that AS "begins in the . . . joints at the base of the spine . . .

[t]hen works its way up over many years to involve the whole spine, and often times will affect peripheral joints such as the shoulders and hips and even down to the hands and feet."

In May 1986, petitioner was hired by the Employer as a comptroller, a position that required him to work long hours while sitting at a desk looking at a computer screen. In December 1986, petitioner complained that sitting for such lengthy time periods at work had aggravated his AS, causing him to lose mobility in his spine. Petitioner was found to be temporarily totally disabled in 1987, and, in a 1993 compensation order, was determined to be permanently totally disabled as a result of the workplace-induced aggravation of his AS.

In the years since those determinations, petitioner‟s AS progressed, affecting various other parts of his body. At a hearing before the ALJ on December 22, 2009, and in a post-hearing brief, petitioner pressed his claim that the Employer is obligated to reimburse him for expenses for medical treatment related to his bi-lateral hip and knee problems, recommended neck surgery, fibromyalgia, enthesopathy, restrictive lung disease, heart ailment, and an eye condition, and for gastroenterology services. He also cited problems with his ankles and wrists and requested reimbursement for costs incurred for home attendant services, shaving, and transportation.*fn2 In addition, as already described, petitioner sought a 20% penalty award for the Employer‟s failure to make timely COLA payments.

The ALJ rejected petitioner‟s expense-reimbursement claim because he found, variously, that petitioner failed to prove that the medical conditions claimed to necessitate the expenses were caused or aggravated by his work for Employer; that some of the services were not reasonably necessary; and that petitioner failed adequately to document his claim. The ALJ concluded, however, that petitioner had established his entitlement to the 20% penalty for the Employer‟s having underpaid bi-weekly compensation for the period at issue.

Petitioner now claims that the CRB erred in affirming the decision of the ALJ "on issues of causal connection and the reimbursement of expenses." Petitioner argues that prior rulings of the DOES Office of Worker‟s Compensation ("OWC") - what he terms the "law of the case" - are binding both as to the causal relationship between the 1986 workplace injury and the problems associated with his AS, and as to the coverage of his expenses for home attendant and other services. Petitioner contends that the ALJ erred "in not following these previous rulings on these issues." He also argues that the ALJ erred in "denying all expenses" for transportation, shaving, handyman, podiatry and home modification services," and that the ALJ "incorrectly dismissed" Dr. Thomas‟s rebuttal of an August 2004 utilization review report on which the ALJ relied. In addition, petitioner argues that the CRB "appl[ied] the incorrect legal standard in reversing the ALJ finding as to penalties."

II.Standard of Review

This court‟s task is to determine whether the CRB‟s decision is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Muhammad v. District of Columbia Dep't of Emp't Servs., 34 A.3d 488, 491 (D.C. 2012) (internal quotation marks omitted). We are guided by the principle that "[i]f substantial evidence exists to support the [ALJ‟s] findings, the existence of substantial evidence to the contrary does not permit the [CRB] to substitute [its] judgment for that of the [ALJ] . . . even if there was also substantial evidence to support a contrary conclusion." Marriot Int'l v. District of Columbia Dep't of Emp't Servs., 834 A.2d 882, 885 (D.C. 2003). The CRB may not "consider the evidence de novo and make factual findings different from those of the [ALJ]." Id. (citing Canlas v. District of Columbia Dep't of Emp't Servs., 723 A.2d 1210, 1211 (D.C. 1999)).

As to questions of law, our review is de novo. Muhammad, 34 A.3d at 491. While we "accord weight to the agency‟s construction of the statutes which it administers, the ultimate responsibility for deciding questions of law is assigned to this ...


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