Golding-Alleyne v. Dept. of Emp. Services, No. 07-AA-1281.

Decision Date24 September 2009
Docket NumberNo. 07-AA-1281.
Citation980 A.2d 1209
PartiesPortia GOLDING-ALLEYNE, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent, and Washington Hospital Center, Intervenor.
CourtD.C. Court of Appeals

Eric M. May, Washington, for petitioner.

Charles F. Fuller for intervenor.

Peter J. Nickles, Interim Attorney General for the District of Columbia at the time, Todd S. Kim, Solicitor General, Donna M. Murasky, Deputy Solicitor General, and David A. Hyden, Assistant Attorney General, filed a statement in lieu of brief for respondent.

BEFORE RUIZ and FISHER, Associate Judges, and STEADMAN, Senior Judge.

FISHER, Associate Judge:

Petitioner Portia Golding-Alleyne challenges the denial of her claim for workers' compensation benefits. After an evidentiary hearing, the Administrative Law Judge ("ALJ") found that petitioner had "failed to sustain her burden to establish entitlement to a permanent partial award for the left leg." The Compensation Review Board affirmed the ALJ's decision, concluding that it "is supported by substantial evidence of record and is in accordance with applicable law." We affirm.

I. Statement of Facts

Portia Golding-Alleyne was injured on September 10, 1993, when she slipped and twisted her back in the course of her employment at the Washington Hospital Center. Dr. Bruce Ammerman performed a laminectomy1 on Ms. Golding-Alleyne in 1996. Since that time she has worked only sporadically (last in 2005, on a part-time basis), and she receives temporary total disability benefits.

Because petitioner Golding-Alleyne was still in severe pain, Dr. Ammerman performed another surgery on her back in May 2003, but she continued to experience back pain after the second procedure. Petitioner continues to receive treatment from Dr. Ammerman and also from Dr. Andre Cernea, a pain management specialist. Since 2003, she has been treated with "[p]hysical therapy, epidural blocks, selective spinal nerve-root blocks, and medication."

In 2005, Ms. Golding-Alleyne fell down some stairs in her home when, she claimed, her "left leg gave out" and tore the rotator cuff in her left shoulder. Dr. Ryan, an orthopedic surgeon, operated on her shoulder in October 2005. The parties agree that there has been no separate, work-related injury to petitioner's left leg.

Ms. Golding-Alleyne filed an Application for Formal Hearing, seeking an award of permanent partial disability benefits in addition to the temporary total disability compensation she currently receives.2 She requested a "schedule award" equivalent to a 20% loss of her left leg. See D.C.Code § 32-1508(3)(B) (2001).3 At the hearing, Ms. Golding-Alleyne and the employer both introduced records from Drs. Ammerman and Ryan, and from therapists at the Physical Therapy and Sports Assessment Center. Petitioner testified about the pain and weakness in her leg, and claimed that she regularly informed all her doctors of the problems with her left leg. She testified that her left leg is "numb ... every day," that it "cramps," and that it "gives out all the time," causing her to fall "four, five times ... per month." Petitioner testified that she continues to receive medication and treatment for her back, leg, and shoulder, and that she goes to physical therapy regularly. Dr. Ammerman did not testify, either in person or by deposition, and the employer did not present a medical expert of its own.

On August 31, 2007, the ALJ issued a Compensation Order denying benefits, relying on the following findings of fact:

I find that there is no medical evidence that the claimant has ever been diagnosed with or treated for any symptoms, complaints, condition or disability of the left leg. I find that there is no medical evidence that the claimant [] experiences problems with her left leg of weakness, instability, giving way or buckling. I find that there is no medical evidence that the claimant has reached maximum medical improvement from a left leg condition. I find that there is no reliable medical evidence that the claimant has a disability of the left leg.

After reviewing the evidence, the ALJ concluded "that the claimant has failed to sustain her burden to establish entitlement to a permanent partial award for the left leg." Petitioner challenges these findings, asserting that they are not supported by substantial evidence.

II. Standard of Review

"Under the Administrative Procedure Act, this court may overturn a decision of the CRB only if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." McNeal v. District of Columbia Dep't of Employment Servs., 917 A.2d 652, 656 (D.C.2007) (citing D.C.Code § 2-510(a)(3) (2001), and Clark v. District of Columbia Dep't of Employment Servs., 772 A.2d 198, 201 (D.C.2001)). "We affirm an administrative agency decision when (1) the agency made findings of fact on each contested material factual issue, (2) substantial evidence supports each finding, and (3) the agency's conclusions of law flow rationally from its findings of fact." Georgetown University v. District of Columbia Dep't of Employment Servs., 971 A.2d 909, 915 (D.C.2009). We will have more to say later about how our standard of review applies to the somewhat unusual circumstances of this case.

III. Analysis
A. The ALJ's Factual Findings Were Supported by Substantial Evidence

Petitioner argues that the ALJ "contradicts himself" in describing the evidence, and that "the CRB erred by determining that the ALJ's decision was based on substantial evidence." We agree that some portions of the ALJ's opinion are confusing. For example, the ALJ noted that there is "no medical evidence that the claimant has ever been diagnosed with or treated for any symptoms ... of the left leg," but he then acknowledged that certain notes from Dr. Ammerman and the physical therapist refer to petitioner's complaints of leg problems. After careful examination, we do not consider these statements to be contradictory. The ALJ's strict use of the term "medical evidence" is fairly understood to mean that the only notations in the medical records referring to a problem with the left leg are based on subjective complaints from Ms. Golding-Alleyne herself, recorded by her doctor and therapist. There are no medical test results documenting a permanent impairment to the left leg,4 nor is there any evidence credited by the ALJ linking the pain in the leg to the work-related back injury. We conclude that the ALJ understood the evidence and that his findings of fact are supported by the record as a whole.

B. Petitioner Had the Burden of Proof

Petitioner had the burden of proving that she was entitled to an award for permanent partial disability. See Washington Metropolitan Area Transit Auth. v. District of Columbia Dep't of Employment Servs., 926 A.2d 140, 149 (D.C.2007) (holding that plaintiff has the burden to prove the nature and extent of his disability). "On the question of the nature and extent of [her] disability, ... the claimant is not entitled to any presumptions." Id.; see also Dunston v. District of Columbia Dep't of Employment Servs., 509 A.2d 109, 111 (D.C.1986) ("Petitioner is entitled to a presumption that his claim is compensable, i.e., that his injury `arises out of' his employment. He is not entitled to a presumption that his injury has left him totally and permanently disabled.").

C. The ALJ Was Not Persuaded by the Treating Physician's Opinion

Petitioner relies primarily upon Dr. Ammerman's letter (written to her counsel on June 21, 2006) opining that petitioner had a 20% impairment of her left leg, correctly emphasizing that our case law recognizes a preference for the opinion of the treating physician. See Short v. District of Columbia Dep't of Employment Servs., 723 A.2d 845, 851 (D.C. 1998) ("Under the law of the District of Columbia, there is a preference for the testimony of treating physicians over doctors retained for litigation purposes."). She also argues that because the employer did not present any competing evidence from a medical expert, the ALJ's decision rejecting Dr. Ammerman's opinion is not supported by substantial evidence. Notwithstanding the preference, however, "the hearing examiner [now the ALJ] ... acts as the judge of credibility," Harris v. District of Columbia Dep't of Employment Servs., 746 A.2d 297, 302 (D.C.2000), and "remains free to reject the testimony of a treating physician, [although] he cannot do so without explicitly addressing that testimony and explaining why it is being rejected." Kralick v. District of Columbia Dep't of Employment Servs., 842 A.2d 705, 711 (D.C.2004) (internal citation and quotation marks omitted). If he or she decides to discount the treating physician's opinion, the ALJ must "set[] forth specific and legitimate reasons for doing so." Olson v. District of Columbia Dep't of Employment Servs., 736 A.2d 1032, 1041 (D.C.1999).

When an ALJ does reject the testimony of a treating physician, he normally has found the opinion of an Independent Medical Examiner ("IME") retained by the employer to be more convincing. See, e.g., Harris, 746 A.2d at 303; Canlas v. District of Columbia Dep't of Employment Servs., 723 A.2d 1210, 1212 (D.C. 1999); cf. Ngom v. District of Columbia Dep't of Employment Servs., 913 A.2d 1266, 1270 (D.C.2006) (Because the ALJ gave no weight to the opinion of an IME, "[o]n this record, there was no basis for rejecting the opinions of the treating physicians."). Thus far, we have refrained from deciding "whether the hearing examiner must accept the treating physician's opinion where, as in this case, there is no contrary medical opinion. ..." Mexicano v. District of Columbia Dep't of Employment Servs., 806 A.2d 198, 205 (D.C.2002). However, the judge of credibility may rely on many considerations, see, e.g., Lincoln Hockey, LLC v. District of Columbia Dep't of Employment Servs., 831 A.2d 913, 920 (D.C.200...

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