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Marriott at Wardman Park v. District of Columbia Department of Employment Services

Court of Appeals of Columbia District

March 6, 2014

MARRIOTT AT WARDMAN PARK, Petitioner,
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent, and Sylvia Gorham, Intervenor.

Submitted Feb. 5, 2014.

Page 1273

Alan D. Sundburg, Washington, DC, was on the brief for petitioner.

Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, Donna M. Murasky, Deputy Solicitor General, and Richard S. Love, Senior Assistant Attorney General, filed a statement in lieu of brief for respondent.

Rebekah A. Miller, Washington, DC, was on the brief for intervenor.

Before THOMPSON and EASTERLY, Associate Judges, and RUIZ, Senior Judge.

THOMPSON, Associate Judge.

Petitioner Marriott at Wardman Park (" Marriott" ) challenges the March 2, 2012, decision of the Department of Employment Services (" DOES" ) Compensation Review Board (the " Board" or the " CRB" ) affirming a December 27, 2011, Compensation Order on Remand, in which a DOES Administrative Law Judge (the " ALJ" ) concluded that claimant/intervenor Sylvia Gorham did not voluntarily limit her income and was entitled to continue receiving temporary total disability payments related to an on-the-job injury she incurred in September 2005. Because the Board's ruling is supported by substantial evidence in the record and is not contrary to law, we affirm.

I.

The pertinent background, as drawn from uncontroverted hearing testimony and the ALJ's factual findings, is as follows. On September 25, 2005, when Gorham was employed by Marriott as a hotel lobby housekeeping attendant, she injured her back while attempting to lift a trash bag. The injury aggravated a pre-existing back condition and caused pain in Gorham's lumbar region and right leg. The ALJ found that " [e]xcept for one attempt to return to work in 2009 [,]" Gorham " has remained off work since the date of the work injury." Gorham underwent a lumbar decompression procedure in August 2007, but continued to have back pain and " continued in off work status" on the recommendation of her treating surgeon, Dr. Warren Yu. Dr. Yu prescribed Vicodin (a narcotic painkiller) and Flexeril (a muscle relaxant).

After Marriott offered Gorham a sedentary position in the hotel laundry room, she reported for work on July 15, 16, and 17, 2009.[1] Gorham testified, however, that on each of those days, she stopped work early after she experienced pain and required medical care or became too drowsy to continue working after taking her pain medication.

Marriott suspended payment of wage loss benefits to Gorham, contending that she had voluntarily limited her income when she declined to return to work in March 2009 and failed to return to work after July 17. Gorham sought a restoration of temporary total disability benefits, and the matter came before the ALJ for a hearing on July 24, 2009.

Testifying at the July 24 hearing, Gorham acknowledged that the prescribed

Page 1274

dosage of her pain medications was one dose approximately every four hours, but testified that she took them " [a]s needed" for her pain. She estimated that she took a dose of each medication " about every hour or every two hours" and that the Vicodin made her " sleepy and drowsy." She further testified that when she was at work on July 15 and July 17, she had taken only one dose of her medications (she did not testify regarding the dosage she used on July 16). In addition, she testified that on the day of the hearing, she had taken only one dose of each medication at about 9:30 a.m. (which was about two hours prior to her testimony). At various points during the hearing, she requested to stand while she gave her testimony, told the ALJ that she was unable to read an exhibit that was presented to her because it appeared " ...


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