CLAIMANT MAY RECEIVE SCHEDULED MEMBER PERMANENT PARTIAL DISABILITY CONCURRENTLY WITH AWARD OF TEMPORARY TOTAL DISABILITY FOR NON-SCHEDULED MEMBER UPON A SHOWING THAT THE SCHEDULED AND NON-SCHEDULED INJURIES ARE SEPARATE AND DISTINGUISHABLE DISABILITIES

 

Howard University Hospital v. Petway & DOES, 2010 D.C. App. LEXIS 226 (D.C.App. May 6, 2010).

 

Claimant injured her low back in the course of her employment. While she was being paid temporary total disability for the back pursuant to a Compensation Order, she petitioned for scheduled member permanent partial disability for both legs. The Employer contested her request for a permanency award, arguing that (1) she was not entitled to a scheduled member award because she did not injure her legs in the work accident; (2) she could not receive a scheduled member permanency award at the same time that she was receiving temporary total disability benefits under D.C. Code § 32-1508 (3); Claimant did not present evidence that her back condition was a separate and distinguishable disability as required by Morrison v. District of Columbia Dep't of Employment Servs., 736 A.2d 223 (D.C. 1999). The ALJ and the CRB held that under Kovac v. Avis Leasing Corp., H&AS No. 84-177, the situs of the disability entitles Claimant to receive a permanency award for other body parts even if they were not directly injured at the time of the work injury, if she can show that the work injuries caused disability in those body parts. The ALJ and CRB held further that Claimant was entitled to receive concurrent permanent partial scheduled member benefits and temporary total disability benefits, and although sufficient evidence was presented by the Claimant to establish that the back and leg conditions had separate and distinguishable disabilities, Claimant was not required to make such a showing.

The Court of Appeals affirmed but clarified that in order to receive concurrent awards of temporary total, Claimant was required to present proof of a "separate and distinguishable" disability under Morrison.

.

            ALJ’S REJECTION OF OPINION OF TREATING PHYSICIAN IN FAVOR OF IME NOT SUPPORTED BY SUBSTANTIAL EVIDENCE WHEN ALJ IGNORED BASIS OF TREATING PHYSICIAN’S OPINION AND IME OPINION HAD BEEN REJECTED IN PRIOR PROCEEDINGS FOR BEING BIASED

 

Changkit v. DOES, 2010 D.C. App. LEXIS 220 (D.C.App. May 6, 2010).

 

The Employer sought modification of a prior compensation Order to terminate Claimant’s temporary total disability benefits in reliance on the IME opinion of Louis Levitt, M.D, whose same opinion had been rejected by prior Judges in favor of Claimant’s treating physicians. The ALJ granted the Employer’s current petition for Modification and denied Claimant’s entitlement to ongoing disability benefits in reliance on the opinion of Dr. Levitt. The ALJ rejected the opinions of three treating physicians, the first two because he felt that the opinions were stale, and the last of the three, Dr. Noel, because he had relied in part upon the stale opinions of the other two. The CRB affirmed the decision of the ALJ. The Court of Appeals reversed and remanded finding that the ALJ’s decision to reject the opinion of Dr. Noel was not based on substantial evidence because it ignored the fact that Dr. Noel had not relied solely on the earlier reports. The Court also held that the ALJ’s reliance on Dr. Levitt’s report, when Dr. Levitt’s opinions had been rejected previously by other Judges as lacking impartiality, was fraught with problems. The Court concluded that no impartial trier of fact could reasonably find in favor of the employer, because there is no substantial evidence to support such a finding, and reversed the decision.

 

 

THE CLAIMANT HAS THE BURDEN OF PROOF WHEN PRESENTING HIS/HER CASE TO THE ALJ, AND MUST PROVE HIS/HER CASE BY A PREPONDERANCE OF THE EVIDENCE. MERELY PRESENTING SUBSTANTIAL EVIDENCE TO SUPPORT A CLAIM IS INSUFFICIENT.

 

Wash. Metro. Area Transit Auth. v. Payne & DOES, 2010 D.C. App. LEXIS 199 (D.C.App. Apr. 15, 2010)

 

While working as a WMATA Metro Station manager, the claimant began experiencing trouble breathing because of the high heat and humidity inside the station and malfunctioning air conditioning. He requested a transfer to another station and when working there, the air conditioning in the station stopped working and he became dizzy, faint, and very weak. He did not return to work and filed a claim for disability benefits, asserting that the dusty, hot and humid atmosphere inside the Metro station aggravated his asthma.

 

The ALJ found that the claimant suffered an accidental injury and that the injury arose out of and in the course of his employment, and that his physical condition was medically causally related to the work incident. WMATA sought review by the CRB, which concluded that the ALJ's finding that the claimant sustained a compensable injury was supported by substantial evidence. The CRB also concluded, however, that the ALJ had erred by not allowing testimony from an industrial hygienist who had been engaged by WMATA to study the current condition of the air quality in the stations. The CRB remanded the case to the ALJ on the issue of whether WMATA had offered the claimant return to work in an environment within his medically imposed restrictions. The ALJ again found that the claimant’s condition continued to render him totally disabled. The CRB affirmed.

 

On Appeal, the Court held that regarding the issue of ongoing disability, the ALJ erroneously stated that the claimant’s burden was only to present substantial credible evidence that he has a disability entitling him to the requested level of benefits. The correct burden of proof was a preponderance of the evidence. The CRB overlooked the ALJ's articulation of an incorrect standard. The CRB's analysis implied that WMATA bore the burden of proof, because the CRB invoked a review standard that was to apply when the party with the burden of proof has petitioned for review. The case was remanded for further proceedings.

 

 

 

 

THE AGGRAVATION OF A PRE-EXISTING CONDITION BY A WORK-RELATED INJURY MAY BE COMPENSABLE; PREFERENCE IS GIVEN TO THE VIEWS OF THE TREATING PHYSICIAN.

 

Children's Nat'l Med. Ctr. v. DOES, 2010 D.C. App. LEXIS 149 (D.C.App. Apr. 8, 2010)

 

Claimant, a housekeeper at Children's National Medical Center slipped and twisted her right knee. Prior to the accident, the claimant suffered from end-stage degenerative osteoarthritis in both knees. Following the accident, her knee was treated with rest, a steroid injection, and arthroscopic surgery. When the joint could no longer bear weight, her orthopedic surgeon scheduled her to have a total right knee replacement. The employer obtained the opinion of an IME, who recommended against knee replacement and found no causal relationship. The employer also initiated the utilization review process. Although the doctor conducting the utilization review agreed that replacement of the knee was medically necessary and appropriate, he determined that claimant was not an appropriate candidate for the surgery at that time because she weighed too much. The orthopedic surgeon did not request that the reviewer reconsider his decision. An ALJ issued a compensation order approving the knee replacement upon the basis that the accident accelerated the need for the knee replacement, the surgery was causally related to the workplace injury and the surgery was medically necessary. The CRB affirmed the compensation order and the employer petitioned for review.

 

The Court affirmed the CRB’s decision. It held that if a work-related injury aggravates an employee's preexisting condition, it may be compensable. Because the course of treatment for the two knees had been similar before the accident, the orthopedic surgeon’s opinion that the injury had significantly accelerated claimant's need for replacement of her right knee was not illogical and carried additional weight because of the preference given to the views of the treating physician. There was substantial evidence to support the ALJ's finding that the workplace injury to claimant's right knee was "medically causally related to her current disability. The Court also affirmed the CRB’s procedure of allowing a claimant to seek a hearing even if the medical care provider has not sought reconsideration of the utilization review. 

 

 

Substantial evidence supports the Department’s finding that the claimant selected a certain physician as her treating physician

 

Wiley v. DOES, 984 A.2d 201 (D.C. App. Dec. 3, 2009).

 

The claimant injured her foot while serving as a secretary at a hospital. An emergency room physician sent the claimant home, directed her to return to work a few days later. When the claimant returned to work, she went to the hospital’s occupational health unit. The claimant met a nurse, and signed a form informing the claimant that she could select a doctor from the hospital or any other doctor as her treating physician. Three days later, a doctor and nurse from the hospital examined the claimant. The doctor diagnosed her with a sprain, and concluded that she was capable of returning to work with modified duties. The claimant scheduled a follow-up appointment with the hospital doctor. After retaining counsel, the claimant canceled her follow-up, and scheduled an appointment with an independent doctor. The independent doctor opined that the claimant suffered a sprain and a contusion, and was incapable of working. 

 

The claimant sought temporary total disability, and reimbursement for the bills of the independent doctor. The ALJ found that the claimant selected the hospital doctor as her treating physician. Consequently, the claimant was not entitled to temporary total disability because the hospital doctor found that she could work, and was not entitled to reimbursement for the independent doctor’s bills. The CRB affirmed.

 

The Court of Appeals affirmed, explaining that substantial evidence supported the ALJ’s finding that the claimant selected the hospital doctor as her treating physician. After all, the claimant explicitly selected the hospital doctor to begin with, scheduled a follow-up appointment, and testified at the hearing that the independent doctor was her second choice of physicians. The Court distinguished Ceco Steel, Inc. v. District of Columbia Dep’t of Employment Services, 566 A.2d 1062 (D.C. 1989), where the Court affirmed the agency’s finding that the claimant had not selected as his treating physician a doctor referred to him during an emergency room visit whom he consulted on three subsequent occasions as well. The Court explained that Ceco did not address the situation present in this case—where a claimant expressly designates a treating physician, receives treatment from the physician, and thereafter schedules a follow-up with the same doctors.

 

 

Res judicata does not bar a party from challenging a stipulation that was established using methods contrary to law

 

Washington Hospital Center v. DOES, 2009 D.C. App. LEXIS 575 (D.C. Ct. App. November 12, 2009).

 

The claimant injured her lower back in the course of her employment. The employer voluntarily paid medical expenses for surgery and total temporary disability. The parties stipulated the average weekly wage. The claimant did not work two of the fourteen weeks used to calculate her average weekly wage. When the claimant began part-time light duty, the employer reduced her benefits. 

 

The claimant sought permanent total disability and a modification to the stipulated average weekly wage. The ALJ found that the claimant is permanently totally disabled, and that the previously stipulated average weekly wage was res judicata. The doctrine of res judicata bars the re-litigation of claims already decided. The ALJ based its conclusions on the testimony of the claimant’s expert. The ALJ discredited the report of the employer’s vocational expert. The CRB affirmed. The claimant and the employer both appealed.

 

Most significantly, the claimant contended that the ALJ erred when it denied her request to alter the previously stipulated average weekly wage. The employer countered that the stipulation was res judicata. The Court held that res judicata does not bar a challenge to a stipulation because the parties established the stipulation by using a statutorily prohibited calculation. Specifically, the parties based the average weekly wage calculation on fourteen weeks that included two weeks that she did not work. Therefore, the stipulated average weekly wage was contrary to law, and the claimant was not barred from challenging it in this proceeding.