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Metro Fire Protection v. District of Columbia Department of Employment Services

Court of Appeals of The District of Columbia

May 3, 2018

Metro Fire Protection, et al., Petitioners,
District of Columbia Department of Employment Services, Respondent, and Michael Green, Intervenor.

          Submitted December 12, 2017

          On Petition for Review of an Order of the District of Columbia Compensation Review Board (CRB-117-16)

          Joseph C. Tarpine III was on the brief for petitioners.

          Karl A. Racine, Attorney General for the District of Columbia with whom Todd S. Kim, Solicitor General at the time the statement was filed, and Loren L. AliKhan, Deputy Solicitor General at the time the statement was filed, filed a statement in lieu of brief, for respondent.

          David J. Kapson was on the brief for intervenor.

          Before Blackburne-Rigsby, Chief Judge, and Easterly, Associate Judge, and Ferren, Senior Judge.


         In this workers' compensation case, the employer-petitioner appeals a Decision and Order of the Compensation Review Board ("CRB") granting benefits for total temporary disability to an employee injured on the job. The case concerns an employee on "light duty" work restrictions who unsuccessfully claimed compensation after his employer went out of business, but who was awarded compensation - the issue on appeal here - after being fired by his next employer. For the reasons set forth below we affirm.

         I. Factual Summary

         This case concerns a 2015 injury suffered by the employee-intervenor, Michael Green, while he was working as a sprinkler fitter for the petitioner, Metropolitan Fire Protection Services ("Metro Fire").[1] Before Green's employment at Metro Fire, he had suffered a workplace injury in Maryland on December 7, 2005, when he fell off a roof. After the 2005 injury, Green underwent three neck surgeries and was found to be capable of working only at a "medium physical demand level." Green's claimed compensation for this injury was resolved by the Maryland Workers' Compensation Commission on December 12, 2013, after shepherding a $100, 000 settlement.

         Over a year later, on March 6, 2015, more than nine years after his 2005 injury, Green was working for Metro Fire with light duty restrictions when he slipped and fell, injuring his back, neck, and elbow. After receiving treatment, Green was cleared for return to his "usual duties" at Metro Fire, which continued to accommodate his light duty restrictions. When Metro Fire closed upon the owner's retirement in early April 2015, Green began collecting unemployment benefits. After leaving Metro Fire he was still able to work with light restrictions, but he remained unemployed while searching for another union job. On May 18, 2015, Green began working for SS&C, [2] again "within his work restrictions." On June 27, 2015, SS&C terminated Green's employment.[3] He was out of work until October 19, 2015, when he was employed by National Fire Protection.

         On March 4, 2015, two days before his injury at Metro Fire, Green had seen Dr. Carey-Walter Closson, a pain management specialist at Concentra Medical Center, who had addressed Green's chronic back pain following the 2005 Maryland accident. Dr. Closson diagnosed Green's low back condition[4] and prescribed physical therapy and a surgical consult, among other medical options. After his March 6 injury, Green continued to work with light duty restrictions under the care of Concentra until August 6, 2015, when Dr. Benjamin Stein, an orthopedist with Concentra, recommended a Functional Capacity Evaluation, as well as an evaluation by either a neurosurgeon or an orthopedic specialist, because Green was experiencing "persistent left sided radiculopathy." Dr. Stein also prescribed light duty restrictions, precluding Green from "lifting over 20 pounds, pushing or pulling objects more than 30 pounds, [or] standing for more than one hour at a time."

         On October 2, 2015, Green began seeing Dr. Joel Fechter, an orthopedic surgeon, complaining of pain in his neck, left arm, back, and legs. Dr. Fechter reviewed Concentra's records, noting Green's 2005 injury and his three subsequent surgeries. He also noted that Green's "residual complaints" from his 2005 accident "had worsened since his March 6, 2015 accident." Dr. Fechter then diagnosed Green as having "cervical and lumbosacral spine strain injuries secondary to his fall at work on March 6, 2015." Dr. Fechter "gave [Green] a light duty work release with no lifting over 10 pounds." He also recommended a neurosurgical consultation with a Dr. Ammerman.

         Four days later on October 6, 2015, at Metro Fire's request for an independent medical evaluation (IME), Green was examined by an orthopedic surgeon, Dr. Stuart Gordon, who examined Green and his "extensive medical records." In substantial disagreement with Dr. Fechter, Dr. Gordon concluded that Green had "suffered cervical and lumbar strains on March 6, 2015; [Green's] present complaints and medical treatment were unrelated to his work accident; and, [Green] could resume working within his pre-existing restrictions of bending, kneeling and a 30 pound lifting restriction." Dr. Gordon further opined that Green did not need "any further medical treatment related to his [Metro Fire] work injury and that any further treatment would be related to [Green's] pre-existing trauma and degenerative disease" dating back, apparently, to the 2005 injury.

         Thereafter, in a letter of February 18, 2016, to Green's counsel, Dr. Fechter confirmed his diagnosis that Green suffered from "cervical and lumbosacral spine strain injuries." Although Dr. Fechter acknowledged that Green's cervical spine symptoms had "essentially resolved, " he opined that Green's March 6, 2015, accident at Metro Fire had "caused the injuries and aggravated the pre-existing degenerative changes [from 2005] as well as the pre-existent condition in the neck." He continued Green on "light duty status with a ten pound lifting restriction."

         II. Administrative Proceedings

         In an application for formal hearing filed on December 30, 2015, Green claimed workers' compensation attributable to his March 6, 2015, injury. During the proceeding before the ALJ, Green claimed temporary total disability from April 10, 2015, to May 18, 2015 (the end of his employment by Metro Fire to the date of employment by SS&C), and from June 27, 2015, to October 19, 2015 (the end of Green's employment by SS&C to the date he began working for his next employer.[5] Green also claimed compensation for out-of-pocket expenses, interest on accrued benefits, and authorization for a neurosurgical consultation with Dr. Ammerman.

         After a formal hearing, the ALJ issued its Compensation Order on August 26, 2016, concluding that: (1) Green had met his burden to show that his disability was "medically causally related to [the] March 6, 2015 work accident"; (2) Green had failed to prove that "he was temporarily and totally disabled from April 10, 2015, through May 17, 2015, " as he had been laid off upon Metro Fire's closing; thus, the period of unemployment was "economic in nature, " not a result of his disability; (3) Green had proved that "he was temporarily and totally disabled from June 27, 2015 through October 19, 2015 as a result of his March 6, 2016 accident, " and thus was entitled to receive workers' compensation benefits for that period; (4) Green was entitled to a neurological consultation with Dr. Ammerman, as recommended by Dr. Fechter; (5) he was further entitled to mileage reimbursement for related doctor and physical therapy appointments; and (6) Metro Fire was entitled to a "credit for unemployment benefits received by [Green] from June 27, 2015 through October 19, 2015."

         Green did not cross-appeal from the denial of benefits for the period from April 10, 2015, through May 17, 2015. In a Decision and Order of December 27, 2016, the CRB affirmed the ALJ's Compensation Order.

         III. Issues on Appeal

         Metro Fire argues that the CRB erred in affirming:

1. The ALJ's exclusion of evidence regarding Green's December 2005 injury that resulted in a "documented permanent partial impairment" and subsequent "lump sum" settlement with the Maryland Workers' Compensation Commission;
2. The ALJ's finding that Green's low back "condition [was] medically causally related to the subject accident" (his work-related incident of March 6, 2015) while working for Metro Fire;
3. The ALJ's authorization of medical treatment requiring Metro Fire and its insurer to "present a Utilization Review to challenge the reasonableness and necessity" of the recommended neurological examination; and
4. The ALJ's award of temporary total disability benefits to Green "for the period of June 27, 2015 through October 19, 2015, " when Green should have been found out of work "because of economic factors" rather than disability.

         IV. Standard of Review

         This court's review is limited to the "decision of the CRB, not that of the ALJ."[6] Although we review questions of law de novo, this court will overturn a CRB's final order only if it is found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."[7] "We will not disturb the agency's decision if it flows rationally from the facts which are supported by substantial evidence in the record."[8]

         V. Analysis

         A. Maryland Workers' Compensation Claim Evidence

         Metro Fire challenges the ALJ's decision to exclude from the record several exhibits its counsel proffered showing Green's compensation for his 2005 workplace injury: a settlement for $100, 000 before the Maryland Compensation Commission in 2013. Counsel stresses the importance of determining whether Green's "current condition is related to the work accident in this case" or instead "to his prior injuries and prior conditions." Thus, counsel sought admission of Green's Maryland claim documents, two physicians' reports (without objection), the hearing transcript, the "functional capacity ...

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