Muhammad v. DISTRICT OF COLUMBIA DOES, 00-AA-336.
| Decision Date | 28 June 2001 |
| Docket Number | No. 00-AA-336.,00-AA-336. |
| Citation | 774 A.2d 1107 |
| Parties | Bari MUHAMMAD, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent, and Verizon Communications, formerly d/b/a/ Bell Atlantic, Washington, D.C., Inc., Intervenor. |
| Court | D.C. Court of Appeals |
Bari Muhammad, pro se.
Robert R. Rigsby, Corporation Counsel, and Charles L. Reischel, Deputy Corporation Counsel, filed a statement in lieu of brief for respondent, District of Columbia Department of Employment Services.
Donald P. Maiberger, Rockville, MD, for intervenor, Verizon Communications.
Before SCHWELB and REID, Associate Judges, and MACK, Senior Judge.
Bari Muhammad has asked this court to review a decision by the Director of the District of Columbia Department of Employment Services (DOES or the agency) denying him a "schedule award"1 for a 25% permanent disability of the "right upper extremity"2 pursuant to D.C.Code § 36-308(3) (1997). Mr. Muhammad contends that the Director erroneously affirmed a compensation order previously issued by a DOES hearing examiner. We agree with Mr. Muhammad that certain findings by the hearing examiner that led to the denial of the schedule award were not supported by substantial evidence on the record as a whole. Accordingly, we vacate the agency's decision to the extent that it denies Mr. Muhammad a schedule award, and we remand the case to the agency for further proceedings.
Mr. Muhammad has been employed by Verizon Communications and its predecessors, Bell Atlantic and C & P Telephone Company, since 1982. After having served as a security guard for a short period, Mr. Muhammad worked as a telephone service technician from 1982 until 1992. While employed in that capacity, he sustained two job-related injuries to his lower back, one in 1989 and one in 1990. As a result of these injuries, Mr. Muhammad was placed on permanent medical restrictions that made it impossible for him to continue to work as a service technician.3 In 1992, he was reassigned to a position as a computer/keyboard operator. In that capacity, Mr. Muhammad spends a large portion of his workday responding, through the use of a computer keyboard and mouse, to telephonic complaints from customers.
In the early 1990s, Mr. Muhammad began experiencing problems in both hands, including stiffness, numbness, tingling, reduced coordination, and dull, shooting pain. He did not seek treatment for this condition until April 1996, when his condition deteriorated, especially in his right hand. On April 12, 1996, Mr. Muhammad was diagnosed with bilateral carpal tunnel syndrome. Later in the same month, he informed his immediate supervisor of this diagnosis, and he explained its impact on his ability to perform his job. On May 28, 1996, Mr. Muhammad filed an Employee's Claim Application pursuant to the District of Columbia Workers' Compensation Act of 1979, D.C.Code §§ 36-301 et seq. (1997 & Supp.2000), and he provided written notice to his employer on July 26 of the same year.4
On December 12, 1996, following consultations with various doctors, both through his medical care providers at Kaiser Permanente and as requested by Verizon in connection with his compensation claim, Mr. Muhammad underwent carpal tunnel surgery on his right hand. He was released to return to work on January 20, 1997, although he continued thereafter to receive physical therapy. However, even following the surgery and physical therapy, Mr. Muhammad continued to experience problems and pain in his right hand. At the time of the hearing, on February 23, 1999, Mr. Muhammad was taking Motrin and using a wrist brace to control the symptoms on an as-needed basis. From time to time, he had to stop working, and he sometimes missed work altogether.
At the February 23, 1999 hearing, Mr. Muhammad requested temporary total disability benefits from December 11, 1996 through January 23, 1997; wage loss benefits for approximately ten days intermittently between July and September 1998; a schedule award for a 25% permanent disability of the "right upper extremity" pursuant to D.C.Code § 36-308(3); and related medical costs. See also note 3, supra. In her compensation order, which was issued on June 30, 1999, the hearing examiner granted the requested relief in part. She awarded Mr. Muhammad temporary total disability benefits and intermittent wage loss benefits, offset against any wage loss benefits that Verizon had previously paid to Mr. Muhammad for the periods in question. The examiner also ordered Verizon to pay the related medical costs. The hearing examiner found, however, that Mr. Muhammad had not carried his burden of proving a "rateable impairment"5 of his right hand and arm. Consequently, she denied Mr. Muhammad's request for a schedule award.6 Mr. Muhammad filed an internal appeal to the Director in connection with the hearing examiner's ruling that he had not sustained a rateable impairment and was not entitled to a schedule award. On February 29, 2000, in a brief written opinion, the Director affirmed the compensation order. Mr. Muhammad now asks this court to review the Director's decision.
Mr. Muhammad contends that the findings by the hearing examiner presently at issue were not supported by substantial evidence, and that the Director erred in adopting them.7 We have held that the "Director is limited to substantial evidence review of a hearing examiner's decision." WMATA, supra note 5, 683 A.2d at 476. Substantial evidence review "presents an issue of law which this court is in a position to address without need for deference to the agency's decision." Id. (internal alteration, quotation marks, and citation omitted).
Stewart v. District of Columbia Dep't of Employment Servs., 606 A.2d 1350, 1351 (D.C.1992) (citation omitted). Id. (quotation marks and citations omitted). However, in making her factual findings, the "trier of fact" — in this case, the hearing examiner — "is entitled to draw reasonable inferences from the evidence presented." Dell v. District of Columbia Dep't of Employment Servs., 499 A.2d 102, 108 (D.C.1985).
The gravamen of Mr. Muhammad's argument to this court is that the hearing examiner's finding of no rateable impairment, and her resulting denial of the schedule award, were unsupported by substantial evidence. In reaching her conclusion, the hearing examiner "relied upon the findings, diagnosis[,] and conclusions in the medical reports of [Mr. Muhammad's] treating physicians at Kaiser Permanente." The examiner "rejected the opinion of William Launder, M.D., an orthopedic specialist who examined [Mr. Muhammad]... at the request of [Mr. Muhammad's] counsel," and who found that Mr. Muhammad suffered a 25% permanent disability to this right hand and arm.8 The hearing examiner declined to adopt Dr. Launder's views because the doctor had based "his opinion regarding the percentage of permanent impairment largely upon [Mr. Muhammad's] reduced grip strength in his right hand." The examiner found the "reduced grip strength" analysis unconvincing because "the Kaiser physical therapy reports reflect [Mr. Muhammad's] lack of concern about grip weakness in April of 1997" and because Mr. Muhammad "also testified [that] he works out weekly at a gym, doing ten to fifteen pushups at a session."
As an initial matter, we discern no substantial evidence supporting the hearing examiner's implicit finding that Mr. Muhammad's grip weakness did not contribute to any part of his permanent disability. The hearing examiner did not find — nor could she have found, see infra — that Mr. Muhammad did not suffer from grip weakness. Rather, she based her decision on her impression that "the Kaiser physical therapy reports reflect [Mr. Muhammad's] lack of concern about grip weakness in April of 1997."
It is true that, in April 1997, Mr. Muhammad was less concerned about grip weakness than about the pain he continued to experience in his right hand. His greater concern with the pain that he was suffering did not, however, take the issue of grip weakness out of the case. The fact that pain caused even more distress than loss of strength is not "such relevant evidence as a reasonable mind might accept as adequate to support [the hearing examiner's] conclusion" that grip weakness could not form the basis for any permanent partial disability suffered by Mr. Muhammad. Stewart, supra, 606 A.2d at 1351. Although the April 1997 Kaiser Permanente report reveals that Mr. Muhammad understandably wanted to have his pain treated first, the same report identifies the achievement of increased strength in the patient's right grip as a goal of the continuing physical therapy. This report thus demonstrates that, at that very time, grip weakness problems were an ongoing medical concern. The Kaiser Permanente report is therefore consistent with, rather than contradictory to, Dr. Launder's finding that Mr. Muhammad suffered a significant permanent partial impairment as a result of continued grip weakness in his right hand.
Under these circumstances, we conclude that the hearing examiner's determination that Mr. Muhammad did not suffer a rateable impairment based on grip weakness is not supported by substantial evidence on the record as a whole. The hearing examiner also based her partial denial of Mr. Muhammad's claim on his testimony that "he works out weekly at a gym, doing ten to...
To continue reading
Request your trial