Clark v. DOES

• Citation: 772 A.2d 198
• Decision Date: 26 April 2001
• Docket Number: No. 98-AA-474.,98-AA-474.
• Parties: Marie CLARK, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent, Bell Atlantic-Washington, D.C., Inc., Intervenor.
• Court: Court of Appeals of Columbia District

772 A.2d 198

Marie CLARK, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent, Bell Atlantic-Washington, D.C., Inc., Intervenor.

No. 98-AA-474.

District of Columbia Court of Appeals.

Argued October 12, 1999.

Decided April 26, 2001.

Benjamin T. Boscolo, Greenbelt, MD, for petitioner.

Charles L. Reischel, Deputy Corporation Counsel, and Jo Anne Robinson, Principal Deputy Corporation Counsel, submitted a statement in lieu of brief on behalf of respondent.

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

Before STEADMAN, RUIZ, and GLICKMAN, Associate Judges.

RUIZ, Associate Judge:

Petitioner, Marie Clark, appeals from a decision of the Director of the District of Columbia Department of Employment Services (DOES) denying her claim for temporary total disability benefits from July 14, 1995, through August 28, 1995, medical expenses, and accrued interest on benefits, based on aggravation of temporomandibular joint dysfunction (TMJ) she claims resulted from her work as a telephone operator. After a hearing, the hearing examiner concluded that claimant's condition did not arise out of, or in the course of, her employment, and therefore denied the claim. In her appeal of the examiner's order, petitioner argued that the examiner "neither discussed nor analyzed" evidence of aggravation. The Director affirmed the hearing examiner's decision. Petitioner argues that the hearing examiner and Director both erred because even though they correctly found that her TMJ was not caused by her workplace duties (which she does not dispute), they did not consider whether her admittedly existing TMJ condition was aggravated by having to wear a headset in order to perform her duties, as found by her treating physician. We conclude that the hearing examiner and the Director failed to take into consideration or explain the reasons for rejecting the deposition testimony of petitioner's treating physician and, therefore, remand for a thorough review of the record, further findings of fact, and an amended compensation order.

I. Factual History

Petitioner worked as a directory assistance operator for Bell Atlantic, D.C. (and its predecessor, C & P Telephone) for fifteen years. She began experiencing pain in her jaw and on the right side of her face in September 1994, and visited her family dentist, Dr. John Jones, seeking relief. Prior to September 1994, claimant had never been involved in any kind of accident or incident where she injured her jaw, face, head, neck or shoulders. Dr. Jones referred her to Dr. Daniel Howard, an oral surgeon, who examined her, took x-rays, diagnosed her with TMJ, and instructed her to stop wearing the telephone headset which she wore while at work.

Ms. Clark notified her supervisor of the restriction, and her employer replaced the headset with a model that did not have a piece inserted into the ear. When her symptoms did not go away, Dr. Howard provided a bite guard for her to wear at night, but this did not alleviate her pain. Dr. Howard concluded that petitioner's condition warranted surgery, and referred her to Dr. Boucree, a surgeon specializing in TMJ problems.

Dr. Boucree first examined Ms. Clark on June 20, 1995. At that time, Ms. Clark did not talk to Dr. Boucree about whether her condition was aggravated by the ear piece she wore at work. The examination showed that claimant was missing most of her teeth, which caused an overclosure of the lower jaw and TMJ. Dr. Boucree recommended surgery. On July 14, 1995, petitioner underwent surgery to correct the TMJ condition and returned to work on August 28, 1995.

In a deposition taken on May 8, 1996, Dr. Boucree explained that Ms. Clark had been referred to him by Dr. Howard, who was treating her for correction of a deformity of her upper jaw which he referred to as "vertical loss of the mid-face" caused by the loss of her teeth. Dr. Howard was to correct the problem by grafting additional bone into place to increase the vertical height of the face and restore a proper bite, but needed Dr. Boucree to address the TMJ problem first. Dr. Boucree explained that when the teeth are lost, the part of the jaw which supports the teeth atrophies, and eventually the upper and lower jaws come to rest on one another, closer than they were meant to, causing loss of the mid-face height. In addition, this can cause the end of the jawbone to rest on the tissues of the joint which hold the nerves and blood, causing pain. Dr. Boucree performed surgery to correct the TMJ problem, and recommended that she wait before returning to work for the surgery wound to heal completely. He also opined that the headset was aggravating her existing problems with TMJ.¹

Dr. Steven Guttenberg examined Ms. Clark in November 1995, after her surgery, at the request of the employer prior to the hearing. In a deposition taken on May 15, 1996, Dr. Guttenberg opined that wearing the headset at work had neither caused nor exacerbated Ms. Clark's TMJ problem and that wearing the headset would not cause her to experience symptoms that she would not have otherwise experienced.² Dr. Guttenberg explained that during his examination he had found claimant to be missing all of the teeth on the right side of her mouth. She had an ill-fitting denture which was hidden beneath her upper lip, evidence that her upper jaw was melting away and causing her dentures not to fit. He concluded after reviewing the x-ray and magnetic resonance imaging (MRI) reports, neither of which showed any pathology, and examining Ms. Clark, that her TMJ problems were likely caused by the fact that she was missing her teeth, which caused overclosure of her lower jaw.³

II. Standard of Review

This court must affirm an agency decision unless it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. See D.C.Code § 1-1510(a)(3) (1999); Charles P. Young Co. v. District of Columbia Dep't of Employment Servs., 681 A.2d 451, 455-56 (D.C.1996). In a worker's compensation case, the court defers to the determination of the Director of DOES as long as the Director's decision flows rationally from the facts, and those facts are supported by substantial evidence on the record. See Washington Metro. Area Transit Auth. v. District of Columbia Dep't of Employment Servs., 683 A.2d 470, 472 (D.C.1996)

(WMATA I). If so, the court's consideration ends. See Shepherd v. District of Columbia Dep't of Employment Servs., 514 A.2d 1184, 1186 (D.C. 1986). "Substantial evidence is more than a mere scintilla." Children's Defense Fund v. District of Columbia Dep't of Employment Servs., 726 A.2d 1242, 1247 (D.C.1999) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). "It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. If substantial evidence exists to support the Director's finding, the existence of substantial evidence contrary to that finding does not permit the Court to substitute its judgment for the Director's. See Gary v. District of Columbia Dep't of Employment Servs., 723 A.2d 1205, 1209 (D.C.1998). The Director's legal rulings are reviewed de novo. See WMATA I,

683 A.2d at 472.

In evaluating the evidence of record, the agency must take into account the testimony of a treating physician, which is ordinarily preferred over that of a physician retained solely for litigation purposes. See Harris v. District of Columbia Dep't of Employment Servs., 746 A.2d 297, 302 (D.C.2000)

; Stewart v. District of Columbia Dep't of Employment Servs., 606 A.2d 1350, 1353 (D.C.1992). Notwithstanding a "preference" for the treating physician's testimony over that of a physician hired to evaluate a workers' compensation claim, the hearing examiner, as judge of the credibility of witnesses, may reject the testimony of a treating physician and decide to credit the testimony of another physician when there is conflicting evidence. Canlas v. District of Columbia Dep't of Employment Servs., 723 A.2d 1210, 1211-12 (D.C. 1999). In so doing, the hearing examiner must give reasons for rejecting a treating physician's testimony. See id.; McKinley v. District of Columbia Dep't of Employment Servs., 696 A.2d 1377, 1386 (D.C. 1997) (equivocal nature of the treating physician's testimony sufficient basis for hearing examiner to reject that evidence and conclude that the claimant's injury was not work-related).

III. Discussion

It is well established that in the District of Columbia, a disability resulting from the aggravation of a pre-existing condition is compensable under the Workers' Compensation Act, see D.C.Code § 36-308(6)(A)⁴; Washington Hosp. Ctr. v. District of Columbia Dep't of Employment Servs., 744 A.2d 992, 997 (D.C.2000), even where non-employment factors contributed to claimant's malady, see Ferreira v. District of Columbia Dep't of Employment Servs., 667 A.2d 310, 312-13 (D.C.1995) (Ferreira II); Ferreira v. District of Columbia Dep't of Employment Servs., 531 A.2d 651, 660 (D.C.1987) (Ferreira I) (quoting Wheatley v. Adler, 132 U.S.App.D.C. 177, 181, 407 F.2d 307, 311 (1968)).

Ms. Clark argues that the hearing examiner and Director erred because they neglected to consider whether her existing TMJ condition was aggravated by having to wear the telephone headset in performing her job as a telephone operator. In evaluating a worker's compensation claim, there is a presumption that the claim falls within the coverage of the statute, see D.C.Code § 36-321(1); Ferreira II, 667 A.2d at 312, if the claimant provides some evidence of a disability and a workplace condition which has the potential to have caused the disability. See Ferreira I, 531 A.2d at 660

. Once aggravation is proved the presumption of compensability will be applied to establish the causal connection necessary to prove a compensable claim. See Washington Vista Hotel v. District of Columbia Dep't of Employment Servs., 721 A.2d 574,...