41 A.3d 1219 (D.C. 2012), 10-AA-628, Jones v. District of Columbia Dept. of Employment Services

Docket Nº:10-AA-628.
Citation:41 A.3d 1219
Opinion Judge:RUIZ, Associate Judge, Retired:
Party Name:Carolyn JONES, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent.
Attorney:Kirk D. Williams for petitioner. David A. Hyden, Assistant Attorney General, with whom Peter J. Nickles, Attorney General for the District of Columbia at the time the brief was filed, Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General, were on the brief, for respondent.
Judge Panel:Before GLICKMAN and THOMPSON, Associate Judges, and RUIZ, Associate Judge, Retired.[*]
Case Date:April 26, 2012
Court:Court of Appeals of Columbia District
 
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Page 1219

41 A.3d 1219 (D.C. 2012)

Carolyn JONES, Petitioner,

v.

DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent.

No. 10-AA-628.

Court of Appeals of Columbia District.

April 26, 2012

Submitted March 9, 2011.

Page 1220

Kirk D. Williams for petitioner.

Page 1221

David A. Hyden, Assistant Attorney General, with whom Peter J. Nickles, Attorney General for the District of Columbia at the time the brief was filed, Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General, were on the brief, for respondent.

Before GLICKMAN and THOMPSON, Associate Judges, and RUIZ, Associate Judge, Retired.[*]

RUIZ, Associate Judge, Retired:

Carolyn Jones, petitioner, asks this court to review the determination of the Department of Employment Services (" DOES" ) that she is entitled to a 7% permanent partial disability award for an injury to her left leg. She argues that (i) the factual record does not rationally support the hearing examiner's conclusions of law; (ii) the hearing examiner erroneously credited the opinion of an independent physician over petitioner's treating physician; and (iii) the hearing examiner failed to apply the law to the record as a whole. We are unable to review the agency's order on the record presented, and remand for further proceedings consistent with this opinion.

I.

We note at the outset that it is the decision of the DOES Compensation Review Board (CRB) to affirm the hearing examiner's decision— and not the decision of the administrative law judge— that is under review. See St. Clair v. District of Columbia Dep't of Emp't Servs., 658 A.2d 1040, 1044 (D.C.1995). Therefore, our review is very limited. We will affirm the CRB's decision unless it was " [a]rbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." D.C.Code § 2-510(a)(3)(A) (2001); Washington Metro Area Trans. Auth. v. District of Columbia Dep't of Emp't Servs., 683 A.2d 470, 472 (D.C.1996) (" We will not disturb the agency's decision if it flows rationally from the facts which are supported by substantial evidence in the record." ). Moreover, " [w]here there is substantial evidence to support the Director's findings ... then the mere existence of substantial evidence contrary to that finding does not allow this court to substitute its judgment for that of the [CRB]." Gary v. District of Columbia Dep't of Emp't Servs., 723 A.2d 1205, 1209 (D.C.1998) (quoting McEvily v. District of Columbia Dep't of Emp't Servs., 500 A.2d 1022, 1024 n. 3 (D.C.1985)).

II.

Petitioner was a part-time usher for the D.C. Department of Sports and Entertainment, showing patrons to their seats at the D.C. Armory and RFK Stadium. While working in that capacity, she fell down a flight of stairs at the D.C. Armory and injured her left knee. She subsequently filed for partial disability benefits with the Office of Risk Management Disability Compensation Program (" DCP" ). Petitioner's treating physician was of the opinion that petitioner had suffered a 20% impairment to her left knee. An independent physician, who examined petitioner at the request of DCP, thought that she had suffered a 6% impairment. On November 12, 2008, DCP determined that petitioner had sustained a 13% permanent partial impairment, essentially splitting the difference between the opinions of the two physicians. Petitioner subsequently requested an administrative review of her award.

An evidentiary hearing was held before an Administrative Law Judge (" ALJ" ) on August 18, 2009. The record remained open for further submissions until September

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14, 2009, and the ALJ issued a written Compensation Order on October 6, 2009. In the order, the ALJ found that petitioner " ha[d] reached maximum medical improvement and ha[d] sustained permanent impairment as a result of her work-related injury." As a result of her injuries, the petitioner could " stand and walk but [could] not kneel, climb or squat" and " continue[d] to have difficulty exercising regularly, mowing her lawn, and going up and coming down steps." The injury did not affect petitioner's full-time job at the Federal Bureau of Investigation as an equal employment specialist, a position she had continued to hold since the time of her injury, but it did impede her ability to work part-time, as she had before she fell, as an usher at a sports facility.

As for the degree of petitioner's physical impairment, the ALJ noted that petitioner's treating physician had examined her only three times over the course of a year, and that his most recent examination had occurred two months before he submitted his opinion. That opinion had been issued in September 2007, more than a year before the DCP's determination, and was " based upon a records review" rather than upon a recent examination. In addition, the treating physician had not used applicable American Medical Association (" AMA" ) Guides to Permanent Partial Impairment in making his diagnosis. The independent physician, on the other hand, had " provide[d] a detailed history of [petitioner's] medical treatment, and he thoroughly explain[ed] his assessment of a 6% permanent impairment with references to the AMA's Guides to Permanent Partial Impairment." He had also examined petitioner in May 2008, much more recently than the treating physician. Accordingly, the ALJ credited the opinion of the independent physician over the opinion of the treating physician, and found that petitioner suffered a 6% physical impairment. However, the ALJ also noted that " [t]he degree of disability in any case cannot be measured...

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