Submitted September 25, 2015
On Petition for Review of a Decision of the Compensation Review Board of the District of Columbia Department of Employment Services CRB-189-12
Cassandra Ross, pro se.
Irvin B. Nathan, Attorney General for the District of Columbia at the time the brief was filed, Todd S. Kim, Solicitor General, Loren L. AliKhan, Deputy Solicitor General, and Mary L. Wilson, Senior Assistant Attorney General, were on the brief for respondent.
Jonathan Levy and Paul Perkins were on the brief for amicus curiae, The Legal Aid Society of the District of Columbia, in support of neither party.
Before Fisher and McLeese, Associate Judges, and Ruiz, Senior Judge.
RUIZ, SENIOR JUDGE
Petitioner Cassandra Ross appeals the 2013 decision of the Compensation Review Board ("CRB") terminating the disability benefits that she had received for over a decade on the basis that her injury had resolved. We reverse and remand for consideration of the agency-employer's request to terminate benefits, under the proper standard: one that imposes the ultimate burden on the employer after a burden-shifting analytical framework.
Petitioner suffered back and leg injuries in 1994 while working as a physician's assistant for the District of Columbia Department of Corrections ("the agency-employer"). In 1998, she suffered complications from her earlier injury, which caused additional injury to her neck and knee. Petitioner applied for, and received, temporary total disability benefits for these work-related injuries pursuant to the District of Columbia Government Comprehensive Merit Personnel Act of 1978, D.C. Code, as amended, § 1-623.01 (2014 Repl.) ("CMPA").
In 2011, the District required that petitioner submit to a medical examination by an assigned doctor who was not her treating physician. Based on the results of that examination, the Office of Risk Management issued a Notice of Intent to Terminate, and-after reconsideration, requested by petitioner-a Final Decision terminating her workers' compensation benefits. On appeal, a Department of Employment Services ("DOES") Administrative Law Judge ("ALJ") upheld the termination, concluding in a 2012 Compensation Order that petitioner's injuries had resolved such that she was no longer entitled to benefits. The ALJ found that the agency-employer "presented substantial evidence that [petitioner's] current [medical] conditions are not caused by her employment, " that is, the work-related injuries that she suffered in 1994, and that petitioner was capable of returning to work. The ALJ further found that petitioner's evidence, which consisted primarily of reports from her treating physicians, was "insufficient to overcome that presented" by the agency-employer, and thus terminated her benefits. In 2013, the CRB affirmed the ALJ's 2012 Compensation Order.
On appeal to this court, petitioner argues that: (i) DOES should have given preference to her treating physician's reports over the District's examining physician, (ii) she is entitled to a presumption of continued compensation, and (iii) substantial evidence does not support the CRB's affirmance of the Compensation Order terminating her benefits.
Before turning to petitioner's arguments, however, we address the CRB's en banc decision in Mahoney v. District of Columbia Public Schools, CRB No. 14-67 (Nov. 12, 2014), released following the CRB's 2013 decision and order in this case. The court appointed the Legal Aid Society of the District of Columbia to file a ...