Honemond v. D.C. Dep't of Emp't Servs.
| Citation | 295 A.3d 1197 |
| Docket Number | 21-AA-0652 |
| Decision Date | 15 June 2023 |
| Parties | Christopher HONEMOND, Petitioner, v. D.C. DEPARTMENT OF EMPLOYMENT SERVICES, Respondent, and Georgetown University, et al., Intervenors. |
| Court | D.C. Court of Appeals |
Krista N. DeSmyter for petitioner.
Karl A. Racine, Attorney General for the District of Columbia (at the time the statement was filed), Caroline S. Van Zile, Solicitor General, and Ashwin P. Phatak, Principal Deputy Solicitor General, filed a statement in lieu of brief for respondent.
Jonathan M. Marlin, Fulton, MD, for intervenors.
Before Blackburne-Rigsby, Chief Judge, Deahl, Associate Judge, and Fisher, Senior Judge.
Petitioner Christopher Honemond filed a workers' compensation claim for disability benefits stemming from a work incident that occurred on June 30, 2016. Intervenors are Mr. Honemond's employer, Georgetown University, and its insurance carrier, Travelers Insurance Company. Previously, this court affirmed a compensation order on remand concluding that Mr. Honemond had failed to establish that he has a disabling mental condition causally related to the work incident. Honemond v. D.C. Dep't of Emp. Servs. , No. 18-AA-635, Mem. Op. & J., 220 A.3d 932 (D.C. July 29, 2019).
Mr. Honemond sought modification of this order, pursuant to D.C. Code § 32-1524 ("Modification of awards"). In his modification claim, he alleged that he suffers from Post-Traumatic Stress Disorder
("PTSD"), Panic Disorder, and Generalized
. He separately alleged that he has a permanent partial physical disability in his arm. The Administrative Law Judge ("ALJ") denied both claims, concluding that Mr. Honemond had neither shown that a change of conditions had occurred as to his mental conditions, nor had he proven that he is entitled to disability benefits for his arm. The Compensation Review Board ("CRB") affirmed the denials. Mr. Honemond now petitions for our review. We affirm.
Mr. Honemond was a maintenance mechanic for Georgetown University for nearly 30 years. On June 30, 2016, he descended into a manhole on a ladder to shut off a steam valve. The manhole was very hot because the steam lines were uninsulated. Overcome by the heat, Mr. Honemond had to leave the manhole. As he ascended, he brushed his left forearm against the ladder and sustained a burn.
Mr. Honemond went to the emergency room at Medstar Georgetown University Hospital that same day. The emergency room nurse reported that she did not observe redness or other skin changes on Mr. Honemond's arm but noted that Mr. Honemond reported pain and tingling. The emergency room discharge report directed Mr. Honemond to use over-the-counter pain medicine and ointment on the site and to follow-up with his primary care doctor. Shortly thereafter, Mr. Honemond visited his primary care doctor and then an orthopedist, who referred him to a burn management specialist.
Mr. Honemond went to outpatient treatment at the Medstar Washington Hospital Center Burn Center. Occupational therapist Rebekah Allely assessed Mr. Honemond for an occupational therapy evaluation. She reported that she did not see any redness, discoloration, or scarring on Mr. Honemond's arm. Mr. Honemond then completed a short course of physical therapy with Ms. Allely. On the last visit, Ms. Allely reported that Mr. Honemond "does not appear to have physical limitations at this time" and that, while he had some diminished grip strength in his left arm, "it is well within functional norms." She concluded that Mr. Honemond did not have further occupational therapy needs. Mr. Honemond did not seek out treatment for his arm after this August 2016 visit.
In December 2016, Dr. Brian Schulman prepared an independent medical examination on behalf of intervenors. Dr. Schulman opined, to a reasonable degree of medical certainty, that Mr. Honemond had not sustained a psychiatric or mental disorder from the June 2016 event. Around this time, Mr. Honemond began treatment with psychiatrist Dr. Patrick Sheehan. On April 10, 2017, Dr. Sheehan diagnosed Mr. Honemond with PTSD, Depressive Disorder
, and Panic Disorder causally related to the work incident.
Mr. Honemond filed a claim for workers' compensation benefits in May 2017.1 He sought temporary total disability benefits, claiming that he had developed PTSD, Depressive Disorder
, and Panic Disorder as a result of the work incident. The ALJ resolved these claims in a January 2018 compensation order on remand.2 The ALJ did not credit Dr. Sheehan's diagnoses and instead credited Dr. Schulman, who opined that Mr. Honemond did not meet the criteria for the claimed mental conditions. The ALJ concluded that Mr. Honemond failed to establish that he has PTSD, Panic Disorder
, or Depressive Disorder "causally related" to the work incident. The CRB affirmed.
Mr. Honemond then petitioned this court, which affirmed the CRB's decision by memorandum opinion and judgment.3 The division determined that the ALJ had properly weighed the competing evidence to come to a conclusion that Mr. Honemond did not suffer from a disabling mental condition causally related to his employment.
Mr. Honemond applied for modification of the compensation order on remand, pursuant to D.C. Code § 32-1524(a). Mr. Honemond alleged that he had experienced a "change of conditions" as to PTSD, Panic Disorder
, and Generalized Anxiety Disorder. Mr. Honemond also requested benefits for permanent partial disability and temporary total disability for his left arm.4
At a status conference, the ALJ granted Mr. Honemond 48 hours to decide whether he wanted to present live testimony regarding his modification claim. Mr. Honemond did not express desire to present live testimony until over a week late. Intervenors objected, arguing that they had already begun work on their brief. The ALJ determined that the parties would submit on their briefs and allowed Mr. Honemond to proffer facts he had expected to elicit through live testimony.
In his brief to the ALJ on these issues, Mr. Honemond proffered that "his condition has worsened" and that his panic attacks "returned and waxed and waned over time." He proffered that he "has an array of different but worse complaints in 2020 than he had in 2017." He represented that he had begun treatment with a licensed clinical social worker, Penny Zimmerman, and that he had gone to the emergency room in August 2019 for "panic symptoms." He represented that Ms. Zimmerman had "noted" that he suffered from PTSD and Panic Disorder
, and that his symptoms of panic and insomnia were "more intense," but he did not offer corroborating evidence. He also represented that Dr. Sheehan had diagnosed him with PTSD, an unspecified Depressive Disorder, Panic Disorder, and an alcohol use disorder on September 30, 2019. He did not provide updated medical records from Dr. Sheehan. He also represented generally that he had "updated psychiatric records" but did not provide them.
The ALJ denied Mr. Honemond's modification claim. The ALJ concluded that the PTSD and Panic Disorder
claims had been previously litigated and that Mr. Honemond had shown no "reason to believe" that a change of conditions as to these claims had occurred.5 The ALJ also concluded that Mr. Honemond had not shown that he has Generalized Anxiety, as he provided no medical records and had not proffered that he had been diagnosed with that condition.
The ALJ then held a hearing regarding the nature and extent of Mr. Honemond's disability in his left arm. Mr. Honemond was the sole witness and testified that he was experiencing pain and trouble with strength and functionality. Both parties offered records from Mr. Honemond's 2016 visit to the emergency room, follow-up appointments with his primary care doctor and an orthopedist, and treatment and occupational therapy at the Burn Center.
The ALJ admitted the report of Dr. Joel Fechter, who had performed an evaluation of Mr. Honemond's arm on December 5, 2019. In his report, Dr. Fechter concluded, to a reasonable degree of medical certainty, that Mr. Honemond had a total impairment of 19% of his left arm. Dr. Fechter opined that the reported "weakness" in Mr. Honemond's arm entitled Mr. Honemond to 10% impairment, and that Mr. Honemond was also entitled to an additional 2% for each subjective factor of reported "pain, loss of endurance, and loss of function." He erroneously added these figures up to a 19% impairment instead of 16%.
The ALJ also admitted intervenors' report from Dr. Marc Danziger, who performed an independent medical evaluation of Mr. Honemond's arm on October 19, 2020. Dr. Danziger scored Mr. Honemond as 0% impaired because he had "normal sensory and motor function," a "full range of motion," and "completely normal skin turgor, function, and no sensory changes, scarring or abnormality[.]" Dr. Danziger determined that Mr. Honemond had only a "heat episode to the left forearm," as no treating physician had noted any symptom "that would classify as even a first degree burn
."
The ALJ concluded that Mr. Honemond had not proven, by a preponderance of the evidence, that he was entitled to any disability benefits for his arm. The ALJ rejected Dr. Fechter's report as "unreliable."
Mr. Honemond appealed both the November 2020 order regarding mental conditions and the February 2021 order regarding physical disability to the CRB, which partially affirmed and partially remanded. The CRB agreed that Mr. Honemond's mental condition claims were barred because Mr. Honemond had not shown evidence of a new diagnosis or new symptoms. The CRB next determined that the compensation order contained insufficient findings of fact and analysis as to the claimed physical disability.
The ALJ then issued a compensation order on remand. The ALJ concluded again that Mr. Honemond failed to prove, by a preponderance of the evidence, that he is entitled to...
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