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

Court of Appeals of Columbia District

March 20, 2014

KEVIN V. REYNOLDS, PETITIONER,
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT, and CANON BUSINESS SOLUTIONS, INTERVENOR, and BROADSPIRE INSURANCE CO., INTERVENOR

Submitted December 11, 2013

Petition for Review from a Final Order of the Compensation Review Board of the District of Columbia Department of Employment Services. (CRB-47-11).

Benjamin T. Boscolo for petitioner.

Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, Donna M. Murasky, Deputy Solicitor General, and Tonya A. Sapp, General Counsel of the Department of Employment Services, filed a statement in lieu of brief in support of respondent's decision.

Barry D. Bernstein for intervenors.

Before BLACKBURNE-RIGSBY and THOMPSON, Associate Judges, and RUIZ, Senior Judge.

OPINION

Page 1158

Ruiz, Senior Judge.

Petitioner, Kevin V. Reynolds, petitions this court to review the April 18, 2012, Order of the Compensation Review Board (" CRB" ) of the District of Columbia Department of Employment Services. The CRB affirmed the Compensation Order issued by the Office of Hearings and Adjudication (" OHA" ) on April 14, 2011, that determined that petitioner's use of narcotic pain medication after July 1, 2009, was not " reasonable and necessary" and therefore the employer was not required to pay for it under D.C. Code § 32-1507 (2012 Repl.). For the reasons stated below, we conclude that the CRB's order is not supported by substantial evidence in the record. We, therefore, reverse and remand the case to the agency.

FACTUAL SUMMARY

On June 29, 2004, the Office of Worker's Compensation awarded petitioner temporary total disability benefits to start retroactively, from March 20, 2002, and continuing for medical bills and ongoing medical treatment related to a work injury sustained on March 4, 2002, when petitioner injured his back while at work lifting a box. Thereafter, in 2010, petitioner's employer, Canon Business Solutions, petitioned OHA seeking a modification of petitioner's total disability benefits due to a claimed change of condition. The employer presented medical records in support of its claim, including an independent medical exam (IME) report by Dr. Peter Esponnette dated May 16, 2007. Dr. Esponnette's IME report initially placed restrictions on petitioner's activities. However, after reviewing the written records of private investigators who had viewed surveillance footage taken earlier that year of petitioner while performing various activities,[1] Dr. Esponnette amended his IME

Page 1159

report on June 13, 2007, and opined that the restrictions were inappropriate because there were " considerable differences between what petitioner claims he can do and what he actually does."

On February 24, 2010, the Administrative Law Judge (ALJ), Nata K. Brown, denied the employer's request for modification of the award, finding that the employer had not shown there had been a change of condition warranting the termination of petitioner's disability ...


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