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Dent v. District of Columbia Department of Employment Services

Court of Appeals of Columbia District

May 4, 2017

Jacqueline Dent, Petitioner,
v.
District of Columbia Department of Employment Services, Respondent, and Providence Hospital; Sedgwick Claims Management Services, Inc., Intervenors.

          Argued March 26, 2015

         Petition for Review of an Order of the Compensation Review Board of the District of Columbia Department of Employment Services (CRB-101-13)

          Michael J. Kitzman for petitioner.

          Stacy L. Anderson, Senior Assistant Attorney General, with whom Irvin B. Nathan, Attorney General for the District of Columbia at the time the brief was filed, Todd S. Kim, Solicitor General, and Loren L. AliKhan, Deputy Solicitor General, were on the brief, for respondent.

          Sarah M. Burton for intervenors.

          Before Blackburne-Rigsby, [*] Chief Judge, McLeese, Associate Judge, and Ruiz, Senior Judge.

          Ruiz, Senior Judge.

         This petition for review challenges the denial of Jacqueline Dent's claim for workers' compensation. Petitioner argues, inter alia, that the D.C. Department of Employment Services Compensation Review Board (CRB) erred in allowing the Administrative Law Judge (ALJ) to consider the absence of wage loss in deciding that she was not permanently partially disabled, and, therefore, denying her claim to a schedule award. Squarely addressing the question for the first time under the current version of the District of Columbia Workers' Compensation Act, we hold that the CRB reasonably concluded that wage loss (or the absence thereof) may be taken into account, along with other factors, in considering whether a claimant is entitled to a schedule award for permanent partial disability under the District of Columbia Workers' Compensation Act, D.C. Code § 32-1508 (3)(S) (2012 Repl). Specifically, we hold that such evidence is a relevant consideration - though not necessary - in determining a claimant's disability percentage for a schedule award under D.C. Code § 32-1508 (3)(U-i). We therefore affirm the order of the CRB.

         I. The Administrative Proceedings

         A. Office of Administrative Hearings (OAH) Hearing

         Petitioner testified that on May 8, 2001, she injured her right shoulder at work at Providence Hospital, intervenor in this case, when she fell off her chair and hit the desk. The employer's health staff at Providence Hospital gave petitioner pain medication and referred her to physical therapy. Ultimately, the health staff suggested that petitioner follow up with an orthopedic surgeon. Petitioner was tested, diagnosed, and treated by three orthopedic surgeons: Dr. Edward Rankin, Dr. Steven Hughes, and Dr. Easton Manderson.

         At the time of the injury in 2001, petitioner was working two 40-hour jobs, at Providence Hospital and Howard University Hospital.[1] She continued to hold both jobs until 2010, when she retired from Providence Hospital, but remained full time at Howard University Hospital, even working overtime, leading to 50- to 60- hour work weeks. At the hearing on September 18, 2012, petitioner testified that she still experienced pain, explaining, "Yes, I am continually having problems with my shoulder and my neck. And I'm having numbness on my right arm, down into my fingers." Petitioner worked as a patient access associate at Howard and she needed to "hit[] the keyboard a little harder" due to the numbness in her right hand. At home, petitioner had difficulty vacuuming, caused by the pain in her neck and shoulder. She applied heat to her shoulder and neck about four days a week to relieve the pain. She testified that she continued to be treated by Dr. Manderson for problems with her right shoulder and that he prescribed physical therapy and Percocet to relieve her shoulder pain.

         During cross-examination, petitioner described other injuries that she suffered while employed at Providence Hospital. In 1999, she injured her back; in 2010, she injured her lower back and left shoulder. After the 2010 injury, she continued to see Dr. Manderson for treatment of her lower back pain but did not complain to him about ongoing pain in her right shoulder.[2]

         In addition to her testimony, petitioner submitted medical documentation in the form of reports by Dr. Hughes, Dr. Rankin, and Dr. Joel Fechter, and an MRI of her right shoulder. Dr. Hughes conducted an independent medical evaluation on July 5, 2001, and, based on petitioner's report that she had no prior injuries to her shoulder, opined that petitioner's neck and right shoulder symptoms were "causally related to the accident of [May 8, 2001], " subject to "subsequent medical records." Dr. Hughes then began treating petitioner and in a progress note dated August 8, 2001, recommended physical therapy for bursitis-tendinitis of the right shoulder and predicted that petitioner should be able to return to unrestricted duties within four to six weeks. On November 19, 2001, Dr. Rankin conducted a physical examination of petitioner, who complained of continuing pain in her neck that radiated down her right arm. After examining petitioner and reviewing an MRI of her right shoulder, Dr. Rankin diagnosed petitioner with "mild tendinosis of the distal supraspinatus as well [as] a small incomplete tear on the inferior surface. The MR[I] of the cervical spine showed some bulging at C5-6." He prescribed physical therapy and Vioxx 50(mg) and placed no restrictions on her work activity. Ten years after the work incident, Dr. Fechter took petitioner's medical history, reviewed x-rays, and conducted a physical examination of petitioner on February 11, 2011. He concluded that she had a twenty-three percent impairment of her upper right extremity: ten percent impairment under the American Medical Association (AMA) guidelines, four percent impairment attributable to pain, and an additional nine percent impairment attributable to weakness (3%), loss of endurance (3%), and loss of function (3%).

         Providence Hospital submitted records of the independent medical examinations of petitioner conducted by Dr. Hughes and Dr. Marc Danziger, and medical records from Dr. Manderson, the treating physician. Dr. Danziger conducted an independent medical evaluation of petitioner on June 14, 2011, and did not describe any lingering issues from petitioner's 2001 right shoulder injury. Dr. Hughes conducted an independent medical evaluation of petitioner on December 8, 2011, and a re-evaluation on July 25, 2012; both times he concluded that petitioner "would qualify for a permanent impairment to the right upper extremity of 5% with no apportionment based on available records and history."[3]Dr. Manderson conducted a series of evaluations from April 30, 2010, to March 25, 2011, and treated petitioner primarily for lower back pain, which resulted from a different workplace injury. In his reports, Dr. Manderson did not mention petitioner's right shoulder injury.

         B. ALJ Compensation Order[4]

         Petitioner argued that she was entitled to a twenty-three percent rating for permanent partial disability to her right shoulder and right arm based on Dr. Fechter's assessment. The employer urged the ALJ to accept the opinion of Dr. Hughes, who found that petitioner has a 5% permanent partial disability in the upper right extremity. After considering the medical assessments and factors enumerated in D.C. Code § 32-1508 (3)(U-i)(i)-(v) for schedule awards, the ALJ made the following findings of fact:

I find that [petitioner] was not a credible witness. I find that [petitioner] has reached maximum medical improvement from her May 8, 2001 work injury to her right shoulder. [Petitioner] has a 5 per cent permanent partial physical impairment of her right upper extremity. I find [petitioner] has no permanent partial disability of the right upper extremity based upon factors of pain, weakness, atrophy, loss of endurance and loss of function. I further find no reliable credible evidence [that petitioner's] May 8, 2001 work injury has altered her capacity to meet personal, social, or occupational demands. I find [petitioner] has no permanent partial disability of the upper right extremity.

         AHD No. 12-381, Compensation Order at 3 (July 23, 2013) (emphasis added) [hereinafter AHD Order]. The ALJ noted that "[disability is an economic and not a medical concept and any injury that does not result in loss of wage-earning capacity cannot be the foundation for a finding of disability." Id. at 8. In conclusion, the ALJ rejected the claim

due to the remoteness of her claim, the lack of evidence to support her testimony of ongoing symptoms related to the injury, lack of medical evidence to support testimony that she is currently receiving ongoing treatment related to the injury[, ] the fact that there have been intervening injuries and treatment, and the fact that, with the exception of time off due to other injuries, [petitioner] has been able to and has continued to work.

Id. at 9. Petitioner appealed the ALJ's decision to the CRB.

         C. CRB Decision and Order

         On appeal, the CRB considered four issues: whether the ALJ erred in considering whether there had been an actual wage loss when assessing petitioner's claim; whether the ALJ erred in considering the lack of ongoing medical treatment; whether the Compensation Order denying petitioner's claim was supported by substantial evidence; and whether the ALJ improperly accorded the treating physician preference to Dr. Hughes's opinion.

         The CRB concluded that the ALJ's determination that petitioner sustained no economic loss resulting from her injury was supported by substantial evidence and affirmed the Compensation Order denying any schedule award for permanent partial disability. The CRB noted that the ALJ found that petitioner has a physical impairment of 5% to her right upper arm, consistent with Dr. Hughes's medical assessment, but that considering the 10-year history of uninterrupted full-time employment since the injury, there was "no evidence that the impairment is likely to have any economic or industrial impact." The CRB rejected petitioner's argument that Smith v. District of Columbia Dep't of Emp't Servs., 548 A.2d 95 (D.C. 1988), mandated a schedule award for permanent partial disability without regard to whether petitioner had suffered a wage loss. The CRB read the statement in Smith that "impaired earning capacity need not be proved to receive schedule benefits" as referring to the method by which benefits for permanent disability are calculated pursuant to a schedule award. The CRB explained that Smith discussed "the theoretical underpinnings of schedule awards and how once such an award is made, what actually happens in the future is irrelevant to whether a claimant has been over or undercompensated by the award that was made, because it is 'conclusively presumed' that the statutory schedule represents the industrial effect of the injury." The CRB noted that "Smith does not say that a claimant's actual wage loss experience prior to receiving an award under the schedule is irrelevant to the making of the prediction regarding future wage loss." The CRB then cited (Carolyn) Jones v. District of Columbia Dep't of Emp't Servs., 41 A.3d 1219 (D.C. 2012), for the proposition that the ALJ can consider the "existence and amount of a specific, identifiable loss of wages" in schedule award cases. The CRB concluded that "to the extent that such wage loss correlates with or is indicative of loss of wage-earning capacity or economic impairment, actual wage loss history (its presence or absence) may be considered as a factor by an ALJ in making a prediction about the future impact a schedule injury will cause." The CRB affirmed the ALJ's decision that petitioner had no compensable permanent partial disability, finding it was supported by substantial evidence and correct legal analysis. This petition for judicial review of the agency decision followed.

         II.

         We review the CRB's Decision and Order which affirmed the ALJ's Compensation Order - we do not directly review the ALJ's determination on appeal. See (Carolyn) Jones, 41 A.3d at 1221. Judicial review of an administrative decision is limited to determining whether the decision is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. See id. "We will not affirm an administrative determination that 'reflects a misconception of the relevant law or a faulty application of the law.'" Washington Metro. Area Transit Auth. v. District of Columbia Dep 't of Emp 't Servs.,992 A.2d 1276, 1280 (D.C. 2010) (quoting Georgetown Univ. v. District of Columbia Dep't of Emp't Servs.,971 A.2d 909, 915 (D.C. 2009)). "However, 'we acknowledge [the CRB's] expertise and . . . responsibility for administering the Workers' Compensation Act, ' and thus 'we ordinarily must defer to [its] reasonable interpretations of ambiguous provisions in that ...


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