Dist. of Columbia Dep't of Corrs. v. Dist. of Columbia Dep't of Emp't Servs., 20-AA-525

Case DateSeptember 01, 2022
CourtCourt of Appeals of Columbia District

District of Columbia Department of Corrections, et al., Petitioners,

District of Columbia Department of Employment Services, Respondent, and Alma Atkins, Intervenor.

No. 20-AA-525

Court of Appeals of The District of Columbia

September 1, 2022

Argued February 16, 2022.

Petition for Review of an Order of the District of Columbia Compensation Review Board (CRB-33-20).

Lucy E. Pittman, with whom Karl A. Racine, Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General at the time the brief was filed, Caroline S. Van Zile, Principal Deputy Solicitor General, and Ashwin P. Phatak, Deputy Solicitor General, were on the brief, for petitioners.

Tonya A. Robinson, General Counsel for the Department of Employment Services, filed a statement in lieu of brief.

Harold L. Levi for intervenor.

Before Blackburne-Rigsby, Chief Judge, McLeese, Associate Judge, and McLean, Associate Judge, Superior Court of the District of Columbia.[*]


McLeese, Associate Judge:

Petitioners, the Office of Risk Management (ORM) and the Department of Corrections, challenge an order of the Compensation Review Board (CRB) reinstating benefits that intervenor Alma Atkins had been receiving through the Public Sector Workers' Compensation Program. We affirm the order of the CRB.


Unless otherwise noted, the following facts appear to be uncontested. Ms. Atkins was an employee of the Department of Corrections. After being injured while working, she began receiving temporary workers' compensation benefits in 1993. In 2018, ORM - which administers the Program - informed Ms. Atkins that her benefits were being terminated. The stated factual basis for the termination was an independent medical examination by Dr. Paul Griffiths, who concluded that Ms. Atkins's work-related injuries had reached maximum medical improvement, that in fact Ms. Atkins's work-related injuries had resolved, and that Ms. Atkins's current medical conditions were not work-related.

Ms. Atkins appealed to the Office of Administrative Hearings (OAH), where an Administrative Law Judge (ALJ) reversed the termination of benefits.


The ALJ analyzed Ms. Atkins's appeal under the following burden of proof:

(1) The employer first has the burden of producing current and probative evidence that claimant's condition has sufficiently changed to warrant a modification or termination of benefits. If the employer fails to present this evidence then the claim fails and the injured worker's benefits continue unmodified or terminated. (2) If the employer meets its initial burden, then the claimant has the burden of producing reliable and relevant evidence that conditions have not changed to warrant a modification or termination of benefits. (3) If this burden is met, then the evidence is weighed to determine whether employer met its burden of proving by a preponderance of the evidence that claimant's benefits should be modified or terminated

That burden of proof was approved by this court in Ross v. D.C. Dep't of Emp. Servs., 125 A.3d 698, 701 (D.C. 2015).

The ALJ disagreed with ORM's contention that the ALJ was required instead to apply a new burden of proof specified in regulations promulgated by ORM in 2017. See 7 D.C.M.R. § 159.2 (if Program seeks to modify or terminate benefits, Program bears initial burden of presenting "substantial evidence that the Program had reason to believe" that modification or termination was warranted; burden then shifts to claimant to show by preponderance of evidence nature and extent of disability and that claimant is entitled to ongoing benefits). As the ALJ explained, the CRB had previously held that ORM's burden-of-proof regulation was invalid.


The ALJ concluded that ORM failed to carry its initial burden of proof under the applicable framework. The ALJ explained that Dr. Griffith's opinion that Ms. Atkins's disability was no longer causally connected to her 1993 injury was based on a single examination in 2018 and a limited review of Ms. Atkins's medical records. The ALJ therefore concluded that ORM had not produced "current and probative" evidence supporting termination of benefits. The ALJ further stated that even if ORM had met its initial burden, the ALJ would have accepted the evidence from Ms. Atkins and her treating physician over the opinion of Dr. Griffiths, and therefore would have found that a modification was not warranted. Finally, the ALJ declined to decide whether Ms. Atkins's injury had reached maximum medical improvement and therefore had become permanent rather than temporary. In the ALJ's view, that question was not relevant given that ORM had failed to carry its initial burden of proof. The CRB affirmed, agreeing with the ALJ's conclusions.


ORM first argues that if Ms. Atkins's disability has changed from temporary to permanent, that by itself warrants termination of Ms. Atkins's temporary benefits. Specifically, ORM argues that such a change permits modification of Ms. Atkins's benefits based on a "change of condition," because the temporary disability has


ceased, becoming instead a permanent disability (or perhaps no disability at all). See D.C. Code § 1-623.24(d)(1) ("The Mayor may modify an award of compensation if the Mayor or his or her designee has reason to believe a change of condition has occurred."), (d)(4)(A) (award may be modified if "disability for which compensation was paid has ceased or lessened"). A recent decision of this court, however, forecloses ORM's position. See Frazier v. D.C. Dep't of Emp. Servs., 229 A.3d 131, 135-37 (D.C. 2020).

The claimant in Frazier had previously received temporary disability benefits, and then she sought a permanent schedule award. Frazier, 229 A.3d at 134-35; see D.C. Code § 1-623.07(a) (providing schedule of compensation to public-sector employees for work-related "permanent disability involving the loss, or loss of use, of a member or function of the body"). The court held that ORM rather than the OAH should decide that claim. Frazier, 229 A.3d at 139. As part of the reasoning supporting that holding, the court held that § 1-623.24(d)(1) was not applicable. Id. at 136. The court noted that "petitioner's claim for a permanent-disability schedule award is not a modification of awarded benefits because that statutory term refers to a reduction in or termination[] of benefits because of a change to the claimant's condition or to a[] corrective compensation decision where there is strong compelling evidence that the initial decision was...

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