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

Court of Appeals of Columbia District

December 31, 2015

JEFFREY BOWSER, PETITIONER,
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT, and CLARK CONSTRUCTION, LLC, ET AL., INTERVENORS

Argued September 17, 2015.

Amended February 25, 2016[*]

Page 254

[Copyrighted Material Omitted]

Page 255

On Petition for Review of Decision and Order of the District of Columbia Department of Employment Services, Compensation Review Board. (CRB-4-14).

Justin M. Beall for petitioner.

Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, Loren L. AliKhan, Deputy Solicitor General, and Donna M. Murasky, Senior Assistant Attorney General, filed a statement in lieu of brief in support of respondent.

Sarah M. Burton for intervenors.

Before THOMPSON and BECKWITH, Associate Judges, and REID, Senior Judge.

OPINION

Page 256

Thompson, Associate Judge:

In this matter, petitioner Jeffrey Bowser challenges a Decision and Order of the District of Columbia Department of Employment Services (" DOES" ) Compensation Review Board (the " CRB" ) that upheld a Modification Order (the " MO" ) terminating petitioner's temporary total disability (" TTD" ) benefits. Petitioner contends that the CRB's Decision and Order must be reversed because (1) the intervenor/employer failed to make a threshold showing of a change in conditions and thus was not entitled to the hearing that led to the MO; (2) the DOES administrative law judge (" ALJ" ) improperly shifted to petitioner the burden of proving that he was entitled to a continuation of TTD benefits; (3) the intervenor/employer failed to prove that petitioner's condition had changed, with the result that the MO is not supported by substantial evidence; and (4) in any event, a remand is required for DOES to properly consider petitioner's claims for medical benefits for carpal tunnel syndrome and psychological treatment. We remand for further consideration of petitioner's claim for the foregoing medical benefits, but affirm the CRB's ruling insofar as it upheld the termination of TTD benefits.

I.

On April 28, 2010, petitioner was working as a pile driver for intervenor Clark Construction Group (the " Employer" ) when he was thrown backward in a boat, injuring his head, neck, and back. Petitioner sought medical treatment and thereafter filed a claim for workers' compensation benefits. On May 26, 2011, a hearing was held on his claim. Petitioner's evidence at the hearing included reports from his treating physicians. The Employer submitted reports by independent medical examiner (" IME" ) Dr. Louis London, a neurologist, and IME Dr. Gary Levitt, an orthopedist. Dr. London opined that petitioner's injuries had " resolved without residual," that petitioner had " no continuing injury causally related to anything that occurred on [April 28, 2010]," and that he " require[d] no further medical care" and could " return to his normal and usual employment as a [p]ile [d]river without restriction." Similarly, Dr. Levitt opined that petitioner had " reached maximum medical improvement" and had " the ability to return to work immediately" without limitation or modification of his work activity.

Page 257

In a June 24, 2011, Compensation Order (the " Initial CO" ), which was upheld on appeal to the CRB, DOES ALJ Heather Leslie awarded petitioner TTD benefits, finding that petitioner's " back and lower extremity complaints [had] resolved" but that his " neck, left shoulder, left upper extremity and head condition [were] causally related to the injury of April 28, 2010" and continued to render him disabled. After the Initial CO was issued, the Employer caused additional examinations to be performed by IMEs London and Levitt. After re-examining petitioner on December 5, 2011, and June 25, 2012, and reviewing new records from petitioner's treating physicians, Dr. London again found that petitioner had " no condition related to anything that occurred on [April 28, 2010]," had " reached maximum medical improvement long ago," and could return to his normal employment without restriction. Dr. Levitt examined petitioner again on November 1, 2011, and May 29, 2012. On the basis of those examinations, he stated that it was " beyond [his] comprehension . . . as to why [petitioner] still require[d] care," that petitioner's treatment by his treating physicians had been " driven purely on the basis of subjective complaints by the [petitioner] and a willingness for his doctors to treat him without clear evidence of any objective measure of pathology" or " structural injury," and that petitioner could return to work immediately without modification of work activity.

After receiving the additional IME reports, the Employer filed an application for a hearing, seeking to modify the Initial CO. On January 18, 2013, DOES ALJ Karen Calmeise held an evidentiary hearing. On December 13, 2013, ALJ Calmeise issued the MO, terminating petitioner's TTD benefits and medical benefits upon finding that petitioner had reached maximum medical improvement and that the injuries to ...


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