King v. Dept. of Employment Services, 88-164.

• Decision Date: 22 June 1989
• Docket Number: No. 88-164.,88-164.
• Citation: 560 A.2d 1067
• Parties: Charles KING, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent, Duke Zeibert's Restaurant and Aetna Casualty & Surety Company, Intervenors.
• Court: D.C. Court of Appeals

Page 1067

560 A.2d 1067

Charles KING, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent Duke Zeibert's Restaurant and Aetna Casualty & Surety Company, Intervenors.

No. 88-164.

District of Columbia Court of Appeals.

Argued January 10, 1989.

Decided June 22, 1989.

James Brewster Hopewell, Riverdale, Md., for petitioner.

Margaret D. Farthing, Fairfax, Va., for intervenors.

Frederick D. Cooke, Jr., Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., filed a statement in lieu of brief, for respondent.

Before NEWMAN and TERRY, Associate Judges, and KERN, Senior Judge.

TERRY, Associate Judge:

Petitioner, Charles King, sought workers' compensation benefits for a back injury which he allegedly suffered in the course of his employment. A hearing examiner in the Department of Employment Services denied his claim for further temporary total disability benefits after his original benefit payments had stopped, denied his request that an independent medical evaluation of the record be made, declined to keep the record open for the submission of an additional medical report, and refused to authorize payment of two bills or to approve back surgery on the ground that the bills and the requested surgery were the result of an unauthorized change of physicians. Despite the examiner's refusal to authorize the use of workers' compensation funds to pay for the requested surgery, the surgery was ultimately performed, and a copy of the hospital discharge summary was submitted to the Director of the Department of Employment Services before she rendered her final decision, which affirmed the ruling of the hearing examiner in all respects.

King challenges the Director's decision on several grounds, all of which are without merit except for his argument that the Director erred as a matter of law in failing to consider whether the hospital report should have been added to the record and, if so, whether a remand to the hearing examiner was appropriate in light of the report. Although we conclude that in this one respect the Director erred, we are nevertheless convinced that her decision would have been the same even if the report had been added to the record. Consequently, we "invoke the rule of prejudicial error," D.C.Code § 1-1510(b) (1981), and affirm the order under review.

I

On February 24, 1984, Charles King was working in the kitchen of Duke Zeibert's Restaurant in downtown Washington. As he ran to get some biscuits, he slipped in a small puddle of water on the kitchen floor and fell, landing on the right side of his back. He returned to work the following day but complained of lower back pain, particularly on his right side. Then began King's medical odyssey, a journey that eventually brought him to the office of Dr. Earl C. Mills. That visit in turn triggered the series of events which led to this litigation.

On February 29, five days after his fall, King was examined by Dr. Susan Ginsberg, who prescribed bed rest, heat applications, muscle relaxants, and anti-inflammatory drugs. King then returned to work at the restaurant, seeing Dr. Ginsberg once again in April. Several months later, in November 1984, King went to the emergency room at George Washington University Hospital, complaining that pain in his right side prevented him from finishing work that day. He was treated and released. King went back to see Dr. Ginsberg several times after that, but because she could not find a physical cause for his pain (an x-ray of his lumbosacral spine taken on December 5, 1984, was normal), she referred him to Dr. David Johnson, an orthopedic specialist.

In a report dated February 22, 1985, Dr. Johnson stated that King's spinal disc spaces were "well-maintained," with "no evidence of degenerative changes." The doctor nevertheless placed King in a physical therapy program at Greater Southeast Community Hospital. King also began to receive temporary total disability benefits.¹ When the physical therapy produced no improvement and a bone scan showed the spine to be "absolutely normal,"² Dr. Johnson referred King to Dr. Norman Horwitz, who examined him on May 1, 1985. Dr. Horwitz likewise could not find a physical basis for King's complaints, so he recommended a computerized axial tomography (CAT) scan to determine whether there was a disc protrusion. Acting on Dr. Horwitz's recommendation, Dr. Johnson ordered a CAT scan of the lumbar spine, vertebrae L2 through S1, which was performed on May 14. In Dr. Johnson's opinion, the CAT scan revealed no abnormalities in King's spine and "no evidence of disc herniation." The doctor concluded that there was no medical reason why King could not return to work. At the same time, however, Dr. Johnson referred King to an orthopedic surgeon, Dr. Sam Wiese].

Dr. Wiesel's examination also failed to turn up any objective findings to support King's subjective complaints. Dr. Wiesel ordered another CAT scan, which was run on June 25, 1985. This CAT scan showed a "completely normal" lumbo-sacral spine with no evidence of herniation at the L4-5 level, except for some minimal bulging. Finding nothing wrong, Dr. Wiesel referred King to Dr. David Borenstein, a rheumatologist, for further examination. Dr. Borenstein's examination of King, which included some neurological tests, revealed no abnormalities.

Because neither Dr. Borenstein nor Dr. Wiesel could find a medical cause for King's complaints, Dr. Wiesel referred King to Dr. Lorenz K.Y. Ng of the Washington Pain Center. In September and October 1985 King went to the Pain Center for physical and psychological testing. After reviewing the test results, Dr. Ng concluded that King was not a suitable candidate for the Pain Center's program because he seemed to lack the requisite motivation and because he displayed no impairment that would prevent his returning to work.

Apparently dissatisfied with these results, King consulted an attorney (not his present counsel), who gave him the telephone number of Dr. Earl C. Mills and suggested that King call Mills for an appointment. King did so and was examined twice by Dr. Mills, once in November and once in December 1985. After the first examination, Dr. Mills asked King to make an appointment for a magnetic resonance imaging (MRI) procedure.³ The MRI report stated that there were "[b]ulging lumbar discs posteriorly . . . with some minimal encroachment on the neural foramina at L4-5 and L5-S1." Dr. Mills reviewed the MRI report and, after examining King again, recommended a myelogram and another CAT scan, to be followed by surgery for removal of the herniated disc at the L4-5 level.

Because King's temporary total disability benefits had stopped in August 1985, he requested a hearing to establish his eligibility for further benefits. At the hearing, besides seeking additional benefits, King asked that the bill from Dr. Mills and the bill for the MRI procedure be paid by workers' compensation and that the surgery recommended by Dr. Mills be authorized.⁴ The examiner denied all of these requests.

In reaching his decision, the examiner weighed the medical findings of Drs. Ginsberg, Johnson, Wiesel, Horwitz, Borenstein, and Ng against the lone opinion of Dr. Mills — an opinion which, in the examiner's view, was indecisive and entitled to "little weight." The examiner also weighed the results of the diagnostic tests ordered by these six physicians against the results of the one test ordered by Dr. Mills and concluded that King was not then suffering from any medical condition resulting from his fall in the kitchen of the restaurant. Accordingly, he denied King's request for temporary total disability benefits after August 20, 1985, and refused to authorize the surgery recommended by Dr. Mills. The examiner also concluded that King's visit to Dr. Mills was an unauthorized change of physicians, and therefore he refused to approve payment of either Dr. Mills' bill or the MRI bill, although Dr. Mills' reports and the MRI report were made a part of the record.

Mr. King took an administrative appeal to the Director of the Department of Employment Services, arguing that the hearing examiner had erred in refusing to keep the record open for an additional report from Dr. Mills, that the examiner should have sought an impartial medical evaluation of the MRI report, and that the examiner might have had the appearance of a conflict of interest. In August 1987, while his appeal was pending before the Director, Mr. King underwent a decompressive lumbar laminectomy at District of Columbia General Hospital. King sent a copy of the hospital discharge summary to the Director with a request that it be included in the record as additional medical evidence in support of his claim. The Director refused to consider the hospital report and affirmed the hearing examiner's order in all respects.

In this court King makes the same arguments he made before the Director, with one exception.⁵ He also argues that the Director erred in not allowing him to supplement the record with the hospital discharge summary. Finally, he contends that the denial of his claim is not supported by substantial evidence.

II

The District of Columbia Workers' Compensation Act provides that "[t]he Mayor shall appoint a panel of physicians to provide medical care . . . to injured employees." D.C.Code § 36-307(b)(1) (1988). The Mayor has delegated his functions under the Act to the Director of the Department of Employment Services,⁶ and the Director in turn has issued regulations governing how physicians' services are to be furnished and how workers' compensation proceedings are to be conducted. Under these regulations, an injured employee has the right to choose a treating physician from an approved panel of physicians, 7 DCMR § 212.2 (1986) (formerly Rule 3613.2, 29 D.C.Reg. 5548 (1982)),⁷ or the employer may select a physician from the panel if the employee is unable to do so because of injury. 7...