Canlas v. DEPT. OF EMPLOYMENT SERVICES

• Decision Date: 14 January 1999
• Docket Number: No. 97-AA-1741.,97-AA-1741.
• Citation: 723 A.2d 1210
• Parties: Danilo J. CANLAS, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent. Columbia Hospital For Women and Liberty Mutual Insurance Company, Intervenors.
• Court: D.C. Court of Appeals

723 A.2d 1210

Danilo J. CANLAS, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent.

Columbia Hospital For Women and Liberty Mutual Insurance Company, Intervenors.

No. 97-AA-1741.

District of Columbia Court of Appeals.

Argued November 16, 1998.

Decided January 14, 1999.

Bruce M. Bender, Rockville, MD, for petitioner.

Donald P. Maiberger, Rockville, MD, for intervenor.

Jo Anne Robinson, Principal Deputy Corporation Counsel, and Charles L. Reischel, Deputy Corporation Counsel, filed a Statement in Lieu of Brief for respondent.

Before SCHWELB, FARRELL and RUIZ, Associate Judges.

FARRELL, Associate Judge:

Petitioner, a pharmacist technician, suffered injuries to his right knee and lower back when he was struck by a vehicle in his employer's parking lot on April 23, 1993. The injuries concededly arose out of and in the course of his employment. Petitioner returned to work in October 1993, but discontinued work again in December 1993 after his treating physician concluded that he was temporarily totally disabled. However, after two independent medical evaluations ("IME"s) by an orthopedic surgeon designated by the employer, a hearing examiner of the Department of Employment Services ("DOES") concluded that petitioner no longer had a disability that prevented him from returning to work in his usual occupation as of July 14, 1994, the date of the second IME. On administrative appeal from that determination, the Director of DOES affirmed.

Our standard of review mirrors that which the Director was bound to apply in reviewing the hearing examiner's finding that petitioner's disability had ended:

The Director may not consider the evidence de novo and make factual findings different from those of the examiner; rather, she may reverse the examiner's decision only when it is not supported by substantial evidence. The Director is bound by the examiner's findings even though the [Director] may have reached a contrary result based on an independent review of the record.

Washington Vista Hotel v. District of Columbia Dep't of Employment Servs., 721 A.2d 574, 578 (D.C.1998) (citations and internal quotation marks omitted). "`Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Dell v. Dep't of Employment Servs., 499 A.2d 102, 108 (D.C.1985) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)).

Further, while the law of the District of Columbia embodies "a preference for the testimony of treating physicians over doctors retained for litigation purposes," the hearing examiner nonetheless "may choose to credit the testimony of a non-treating physician over a treating physician." Short v. District of Columbia Dep't of Employment Servs., 723 A.2d 845, 851 (D.C.1998). Particularly is that so if "the contradicting medical evidence from the employer was from a doctor who... examined" the claimant, King v. W.C.A.B. (Wendell H. Stone Co.), 132 Pa. Cmwlth. 292, 572 A.2d 845, 846 (1990) (cited in Stewart v. District of Columbia Dep't of Employment Servs., 606 A.2d 1350, 1353 (D.C.1992)), and, in any case, the hearing examiner must explain his decision to credit the one opinion over the other. See Short, supra, at 851

(recognizing examiner's right to discredit treating physician's opinion but remanding for explanation where examiner did not mention opinions of those physicians). Although an agency as finder of fact generally "`need not explain why it favored the evidence on one side over that of the other,'" McKinley v. District of Columbia Dep't of Employment Servs., 696 A.2d 1377, 1386 (D.C.1997) (citation omitted), there would be little force to the preference in favor of a treating doctor's opinion if the agency could ignore that opinion without explanation. The parties do not dispute that DOES itself requires such an explanation. See Br. for Pet. at 20 (quoting, for example, Estella Whitaker v. Washington Metro. Transit Auth., Dir. Dkt. No. 91-12) (If hearing examiner rejects treating physician's opinion, "[s]pecific reasons for doing so must be elaborated upon in his or her findings.").

In this case, the hearing examiner expressly "accorded more weight to the opinion of the IME physician," Dr. Levitt, than to the opinions of petitioner's treating physicians, and explained why. Dr. Levitt concluded that even at the time of his first examination of petitioner in August 1993, but certainly by the time of the next examination in July 1994, petitioner had "recovered adequately" from his injuries and "more than had the capacity to return to work as a pharmacy technician." The examiner credited this conclusion as "more consistent with" the "objective evidence" of petitioner's condition than were the contrary opinions offered by petitioner's physicians. Specifically, the examiner pointed to the "diagnostic test results indicating that while claimant has some abnormalities of the lumbar spine, specifically, degenerative changes, those changes do not reflect any active disc disease and are not unusual for someone...