Argued February 27, 2014.
As Corrected September 25, 2014.
On Petition for Review of Decision and Order of the District of Columbia Department of Employment Services, Compensation Review Board (CRB-096-11).
Marc Fiedler for petitioner.
Mark H. Dho, Associate General Counsel, with whom Kathryn H.S. Pett, General Counsel, and Mark F. Sullivan, Deputy General Counsel, were on the brief, for intervenor.
Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Gregory M. Cumming, Assistant Attorney General, filed a statement in lieu of brief for respondent.
Before WASHINGTON, Chief Judge, GLICKMAN, Associate Judge, and EDELMAN, Associate Judge, Superior Court of the District of Columbia.[*]
Edelman, Associate Judge.
Petitioner Hughey Payne (" Payne" ) requests review of a May 2, 2012, Decision and Order of the Compensation Review Board (" the Board" ) (CRB No. 11-096) that affirmed a Compensation Order on Remand, issued August 18, 2011, by a Department of Employment Services Administrative Law Judge (" ALJ" ), awarding Payne temporary total disability benefits for the period from August 29, 2006, to September 11, 2006. Payne seeks an award of such benefits from August 29, 2006, through July 22, 2012, when Payne returned to work. Because the Board erred by exceeding its authority on review when it substituted its view of the facts for the findings of the ALJ and misapprehended the basis for the ALJ's legal conclusions, we reverse the Board's decision.
This case has travelled a long and tortured procedural path, and is new for neither the Department of Employment Services nor this court. Payne, a Metrorail station manager for the Washington Metropolitan Area Transit Authority (" WMATA" ), did not return to work after August 29, 2006, due to heightened asthma and respiratory problems he was experiencing. He thereafter filed a claim under the District of Columbia Workers' Compensation Act, D.C. Code § § 32-1501 - 1535 (2012 Repl.), alleging that he had suffered an accidental workplace injury or developed an occupational disease at his workplace and seeking temporary total disability benefits from August 29, 2006, to the " present and continuing, causally related medical expenses, and interest." After an evidentiary hearing, in a Compensation Order dated October 31, 2007, the ALJ found that " Payne's exposure to dust and excessive
heat while working as a station manager [for WMATA] aggravated [Payne's] asthma." The ALJ concluded that Payne was rendered temporarily totally disabled from August 29, 2006, when the Metro station's air conditioning malfunctioned, exposing him to high temperatures that triggered difficulty breathing and exacerbated other symptoms, and forced Payne to leave work. The Compensation Order accordingly awarded Payne workers' compensation benefits beginning from that date.
On January 28, 2008, the Board reviewed and affirmed the finding that Payne was temporarily totally disabled from August 29, 2006, but remanded the matter to the ALJ to allow testimony from one of WMATA's witnesses regarding " the current condition of the air quality at the stations in light of the opinions of [two doctors] that Respondent can return to work but should avoid dusty areas and extreme temperatures." The Board noted that while this evidence " may not be relative to the causal connection issue [of whether the workplace conditions caused Payne's respiratory condition] as it is after the fact, it is relative to the present nature and extent of [Payne's] disability, if any," i.e., to whether the conditions at any Metro stations permitted Payne to work there in spite of his workplace injury. On remand, the ALJ heard testimony from Dr. Neil Jurinski, a certified industrial hygienist, who prepared a report on dust levels in WMATA's underground stations. The ALJ did not alter his ultimate conclusions after considering Dr. Jurinski's opinion, noting that air samples were not collected during the summer months, and that Dr. Jurinski's analysis was limited only to dust levels and " did not consider other possible environmental factors that could impact [Payne's] employment [including temperature]." In an April 30, 2008, Compensation Order on Remand, after finding that WMATA did not offer Payne employment consistent with his medical restrictions, the ALJ again concluded that Payne " established entitlement to temporary total disability benefits . . . from August 29, 2006 to the present and continuing." The Board affirmed the finding of ongoing disability on September 3, 2008, and WMATA petitioned to this court for review.
On August 15, 2010, this court affirmed the Board's decision to uphold the ALJ's determination that Payne sustained a compensable workplace injury, but reversed " the portion of the Board's decision upholding the ALJ's determination that Payne has an ongoing disability." See Washington Metro. Area Transit Auth. v. District of Columbia Dep't of Emp't Servs. ( Payne I ), 992 A.2d 1276, 1277-78 (D.C. 2010). On the latter point, we explained, " the ALJ erroneously stated that Payne's burden was only to 'present substantial credible evidence that he has a disability entitling him to the requested level of benefits' . . . . [when] [i]n fact, 'the correct burden of proof is a preponderance of the evidence.'" Id. at 1282 (citing Washington Metro. Area Transit Auth. v. District of Columbia Dep't of Emp't Servs., 926 A.2d 140, 149 (D.C. 2007)). As a consequence, " [h]aving misapprehended Payne's burden of proof, the ALJ made no finding as to whether Payne proved by a preponderance of the evidence that his disability was ongoing." Id. " Notwithstanding, if the Board had concluded as a matter of law that the evidence was so one-sided that it would have been unreasonable for the ALJ to find that Payne had failed to prove his ongoing disability by a preponderance of the evidence, the Board could properly have upheld the ALJ's determination. But the Board never made such a legal determination." Id. Determining whether Payne's disability was " ongoing" required addressing whether Payne could return to
work for WMATA, i.e., whether dust and temperature conditions in the workplace precluded him from returning to work in Metro tunnels. This court noted that it could have answered this question and " avoid[ed] a remand if [it] were able to make a legal determination that the evidence compelled a determination that Payne met (or failed to meet) his burden of proof as to his claim that workplace conditions [including dust levels and temperature extremes] prevent[ed] him from returning to work." Payne I, 992 A.2d at 1283 (concluding that evidence " as to both the evidence about 'dust' and the evidence about temperature extremes . . . [did] not so clearly favor either side that [this court] [could] make such a determination" ).
Before remanding to the administrative agency for further findings of fact on the question of " ongoing disability," this court summarized the evidence in the record to guide the ALJ on remand. Id. at 1285-86. When discussing " the ['conflict[ing]'] evidence . . . regarding whether the workplace would continue to expose Payne to excessive heat (or cold)[,]" this court addressed the ultimate origination of Payne's respiratory condition, not to raise a fundamental analytical question underlying Payne's entire claim of ongoing disability, but to evaluate a very specific evidentiary argument made by WMATA. WMATA had argued that the evidence demonstrating that Payne experienced respiratory difficulties in extreme temperatures, both outside the workplace and after he left WMATA, suggested that the temperature in the workplace did not prevent him from returning to work. Id. at 1285. This court delineated the record evidence that revealed Payne continued to experience symptoms from and difficulty withstanding temperature extremes, and acknowledged that he experienced symptoms " even outside the workplace." Id. In commenting on the potential significance of this evidence, this court opined that despite the employer's reliance on it, such evidence " would not necessarily favor WMATA if Payne's sensitivity to temperature extremes had developed ab initio in the workplace[.]" Id. However, because the ALJ " made no finding that Payne's pulmonary condition was caused ab initio by his employment, or that the condition was worsened as a permanent medical matter ( i.e., rendered worse in the sense that exposure causing the disability made Payne more susceptible as a general matter to such exposures than he had previously, or that the workplace exposure heightened [Payne's] preexisting sensitivity to exposure to dust or heat)[,]" this court could not evaluate which side's argument this evidence assisted. Id. at 1285-86. To further guide the ALJ on remand, this court explicated how the holding in Howard Univ. Hosp. v. District of Columbia Dep't of Emp't Servs., 881 A.2d 567, 573 (D.C. 2005)--cited by the ALJ in the April 2008 Compensation Order--is inapplicable unless the ALJ " find[s] that conditions in the workplace were the cause or permanently worsened Payne's asthma or rendered him more susceptible to irritants. . . ." Payne I, 992 A.2d at 1286 n.12. Finally, this court emphasized, " it [is] the role of the ALJ to be the sole judge of where the preponderance of the evidence lay, i.e., to weigh that evidence that we have summarized and other evidence in the record and to determine whether or not the preponderance of the evidence supported a finding of ongoing disability." Id. at 1286.
On remand from the Court of Appeals, the ALJ made further findings of fact and issued the first Compensation Order on Remand on December 10, 2010, (" December 2010 Compensation Order on Remand" ), again awarding Payne ...