George Hyman Cons. v. D. C. Dept. of Employ., 84-464.

• Decision Date: 04 October 1985
• Docket Number: No. 84-464.,84-464.
• Citation: 498 A.2d 563
• Parties: GEORGE HYMAN CONSTRUCTION COMPANY, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent.
• Court: D.C. Court of Appeals

Page 563

498 A.2d 563

GEORGE HYMAN CONSTRUCTION COMPANY, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent.

No. 84-464.

District of Columbia Court of Appeals.

Argued March 27, 1985.

Decided October 4, 1985.

Stewart S. Manela, Washington, D.C., with whom Alice L. Covington, Washington, D.C., was on briefs, for petitioner.

Richard B. Nettler, Asst. Corp. Counsel, Washington, D.C., with whom Inez Smith Reid, Corp. Counsel, John H. Suda, Principal Deputy Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., were on brief, for respondent.

Before NEBEKER, MACK and NEWMAN, Associate Judges.

NEBEKER, Associate Judge:

In this appeal, petitioner contends that the Director of the Department of Employment Services (DOES) exceeded his permissible scope of review when he made factual findings different from those of the hearing examiner, extending the workers' compensation eligibility period for Anthony L. Powell, petitioner's employee. Petitioner argues that DOES regulations limit the Director to substantial evidence review of a hearing examiner's decision, and that substantial evidence supports the hearing examiner's conclusion that Mr. Powell's temporary total disability ended October 18, 1982. We agree and reverse.

I

Mr. Powell, the claimant here, began working for the George Hyman Construction Company in September 1981. On August 3, 1982, when he was sweeping a deck on a Hyman construction site in the District of Columbia, his feet got tied up in wire and he fell back against aluminum beams. fie immediately visited Dr. Anson R. Hyde, who examined and x-rayed his back. The x-ray and examination revealed that Mr. Powell had a fracture of the left transverse process of his third lumbar vertebra, without displacement.

Dr. Hyde treated Mr. Powell for approximately two months. He regularly examined him, took x-rays, and tested his reflexes and sensation. The three x-rays, taken at intervals during the treatment period, showed a normal healing process and eventually complete healing of the fracture. Dr. Hyde cleared Mr. Powell for light duty work as of September 27, 1982. On October 8, Mr. Powell, who had not returned to work, again saw Dr. Hyde. He had no complaints of back pain at that time, but expressed fear that returning to regular duty would cause back pain. Dr. Hyde's examination on October 8 revealed no objective findings of continuing back injury, nor were there any negative muscular or neurological findings. Dr. Hyde recommended that Mr. Powell return to regular duty on October 18, 1982.

On October 15, 1982, Mr. Powell consulted an orthopedic surgeon, Dr. Jeffrey H. Phillips, of the medical office of Joseph, Phillips & Green. He did not tell Dr. Phillips or any other doctor in the office that he had suffered a fracture of the left transverse process. He did complain of pain in the low back area. Dr. Phillips found that Mr. Powell was able to walk on his toes and heels; his posture, walking, straightleg raising, neurologic examination and x-rays were normal. Based on Mr. Powell's complaints of pain, however, Dr. Phillips diagnosed him as suffering "acute lumbar strain, moderate."

Mr. Powell continued to visit this medical office. He was examined by each of the three doctors in the office, Dr. Phillips, Dr. Herbert H. Joseph, and Dr. Neil A. Green.

Dr. Joseph noted that Mr. Powell was improving throughout the course of these examinations, but experiencing "mild" or "some" spasm.¹ On March 1, 1983, Dr. Joseph reported that Mr. Powell had some tenderness, but no spasm and only minimal restriction of motion. He concluded that Mr. Powell was ready to return to work. Nevertheless, Mr. Powell did not return to work, but visited the doctors with complaints of back pain. The doctors obtained normal results from standard orthopedic evaluation tests, and Dr. Joseph discharged him on May 10.

Despite the discharge, Mr. Powell returned to the doctors; they reported on July 26 and August 18, 1983, that he was "unfit for working duty" and "still unable to work." Nevertheless, as of August 1983, Mr. Powell had been working on a painting job for an employer other than petitioner for at least two months.² Dr. Joseph's final report of September 27 1983, states that he was working on light duty at that time.

Mr. Powell then visited Dr. Henry L. Feffer, a Board-certified orthopedic surgeon, on March 9 and September 14, 1983. Mr. Powell was seeking treatment for a urologic disorder, subsequently found to be unrelated to the injury.³ Dr. Feffer examined him thoroughly, finding no muscle spasm, normal mobility of the lumbar spine, and no neurologic problem. On September 14, Dr. Feffer concluded that Mr. Powell's physical condition had not changed since his March 1983 examination, when he had found no evidence of work-related disability. He found no evidence of any residual physical impairment beyond the time when Mr. Powell was released to return to work by Dr. Hyde, the first doctor consulted. He found no objective findings from examination or from review of the other physicians' reports to support a conclusion that Mr. Powell could not return to work as a laborer.

II

The hearing examiner heard the testimony of Drs. Hyde, Feffer, and Joseph. He reviewed their medical reports and the other evidence produced by the parties. In his Recommended Compensation Order, issued on December 1, 1984, he concluded that Mr. Powell had failed to establish temporary total disability due to an orthopedic impairment beyond October 18, 1982. The basis for his conclusion was three-fold. First, the hearing examiner found the testimony of Dr. Hyde credible and noted that October 18, 1982, was the date that Dr. Hyde released Mr. Powell to return to regular duty. Second, he accepted Dr. Feffer's reports and testimony. He found persuasive Dr. Feffer's opinion that Mr. Powell presented no objective evidence of orthopedic impairment beyond the time he was released to work by Dr. Hyde. Finally, in support of his decision, the hearing examiner pointed specifically to the fact that he accepted the testimony of Drs. Hyde and Feffer that Mr. Powell related a history of no back pain at the time these physicians examined him, respectively, on October 8, 1982, and March 9, 1983.

The Director issued a Final Compensation Order on April 9, 1984. The Director first concluded that a claimant must persuade the agency by a preponderance of the evidence that he is entitled to compensation benefits. He stated that if the employer's evidence does not directly contradict the claimant's, the claimant will meet his burden. The Director focused on testimony of Dr. Joseph that Mr. Powell suffered from spasms and that this was an objective finding. The Director did not find that Dr. Feffer's testimony unequivocally and directly disputed Dr. Joseph's testimony regarding the objective nature of spasms. Accepting Dr. Joseph's testimony regarding objective...