Muhammad v. Dist. of Columbia Dep't of Employment Servs., No. 10–AA–1049.

• Decision Date: 05 January 2012
• Docket Number: No. 10–AA–1049.
• Citation: 34 A.3d 488
• Parties: Jamil F. MUHAMMAD, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent,andEastern Electric and Zurich American Insurance Company, Intervenors.
• Court: D.C. Court of Appeals

34 A.3d 488

Jamil F. MUHAMMAD, Petitioner,

v.DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent,andEastern Electric and Zurich American Insurance Company, Intervenors.

No. 10–AA–1049.

District of Columbia Court of Appeals.

Argued Oct. 4, 2011.Decided Jan. 5, 2012.

Benjamin T. Boscolo, Greenbelt, MD, with whom Jason C. Zappasodi was on the brief, for petitioner.

Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, Donna M. Murasky, Deputy Solicitor General, and John L. Davie, Special Assistant Attorney General, filed a statement in lieu of brief for respondent.

Mark T. Krause, Baltimore, MD, with whom Charles J. O'Hara was on the brief, for intervenors.

Before FISHER and BLACKBURNE–RIGSBY, Associate Judges, and SCHWELB, Senior Judge.

FISHER, Associate Judge:

The District of Columbia Department of Employment Services denied workers' compensation benefits to Jamil Muhammad, holding that his psychological injury did not arise out of and in the course of his employment. Because the Compensation Review Board's decision and the underlying compensation order were based on an error of law, we reverse and remand for further proceedings.

I. Factual Background

On March 1, 2002, Jamil Muhammad was working as an electrician's helper for Eastern Electric, Inc., in the District of Columbia. While attempting to lift several heavy cables, Mr. Muhammad hurt his lower back, requiring orthopedic treatment. Eastern Electric agreed that this initial physical injury was compensable, and Mr. Muhammad received temporary total disability benefits stemming from the injury.

Three years later, Eastern Electric enrolled Mr. Muhammad in vocational rehabilitation to assist him in finding employment consistent with his skills and physical disability. In the past, Mr. Muhammad had held only physically demanding jobs, but his injury now limited him to performing sedentary work. He had few transferable skills; tested poorly in reading, spelling, and arithmetic; and lacked a high school diploma. Petitioner was “a reluctant and, at times, an oppositional participant in vocational rehabilitation.” The case manager explained that Mr. Muhammad “had a mindset that he was totally and completely disabled and couldn't work and was just consumed by that much pain that there'd be no way he could work.” Nevertheless, the ALJ found in his first compensation order that “there is nothing in [the vocational case manager's] cumulative reports to suggest [that Mr. Muhammad] failed to reasonably cooperate with the vocational efforts.... [A] finding of claimant's non-cooperation with vocational rehabilitation cannot be sustained.”

In April 2006, following nearly a year of unsuccessful vocational counseling, rehabilitation efforts were terminated. Shortly thereafter, Mr. Muhammad's treating physician recommended that he begin seeing a psychiatrist. Mr. Muhammad met with Dr. Kenneth Smothers for a psychiatric evaluation in September of that year. After three consultations, Dr. Smothers diagnosed Mr. Muhammad with a mental illness caused by his 2002 workplace injury.¹ Mr. Muhammad's symptoms included “severely depressed mood, bouts of anxiety, ‘anger flare-ups,’ impaired concentration, and social and vocational dysfunction.” Because of petitioner's “debilitating depression,” Dr. Smothers prescribed psychotherapy, psychotropic medication, aggressive pain management, and continued leave from the workplace.

Eastern Electric and its insurer sought an independent medical examination and arranged for Mr. Muhammad to be examined by Dr. Brian Schulman. Following a comprehensive psychiatric evaluation in October 2006, Dr. Schulman also diagnosed Mr. Muhammad with a mental illness, variously described as a Depressive Disorder Not Otherwise Specified (“NOS”), an Adjustment Disorder, and a Personality Disorder NOS. Dr. Schulman recommended “psychiatric treatment,” possibly including “antipsychotic medication,” “to prevent a further deterioration of Mr. Muhammad's behavior.” “The cause of this disorder,” he determined, “is [Mr. Muhammad's] limited coping response to the challenges imposed by vocational rehabilitation.” In a sworn deposition taken in December 2006, Dr. Schulman testified that, due to his mental illness, Mr. Muhammad “absolutely should not” proceed with “vocational rehabilitation.”

Following a remand by the Compensation Review Board (“Board”), Dr. Schulman was asked to reconsider his opinion in light of the McCamey standard.² He concluded, to “a reasonable degree of medical probability, [that] Mr. Muhammad did not develop a mental disorder as a consequence of the physical injury he sustained on March 1, 2002.” ³ Rather, Mr. Muhammad manifested the mental condition “as a consequence to his participation in vocational rehabilitation, which he felt was inappropriate; as well as his inability to tolerate the opinions of others who did not perceive of him, as he did, as being totally disabled.” “I concluded that Mr. Muhammad's mental and behavioral disturbance, which was clearly manifest in my office, as well as with the vocational counselors, was directly related to the efforts to proceed with vocational rehabilitation.”

After receiving evaluations from both psychiatrists, Mr. Muhammad petitioned for permanent total disability benefits. The Administrative Law Judge (“ALJ”) reviewed Mr. Muhammad's psychiatric reports and “credit[ed] the findings of Dr. Shulman [ sic ] with significant weight.” The ALJ concluded that Mr. Muhammad suffered from a depression disorder and an adjustment disorder and that, as “Dr. Shulman unequivocally testified[,] ... claimant's behavioral or mood disorder ‘was most dramatically amplified by vocational rehabilitation efforts.’ ” Nevertheless, the ALJ denied Mr. Muhammad's claim in a Compensation Order dated November 30, 2007, after concluding that his “psychiatric injury is not medically causally related to the March 1, 2002 [back] injury.” After remanding twice, the Board ultimately upheld the ALJ's order denying compensation. Mr. Muhammad filed a petition for review.

II. Standard of Review

“This court reviews [Department of Employment Services] decisions to determine whether they are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Bentt v. District of Columbia Dep't of Employment Servs., 979 A.2d 1226, 1231 (D.C.2009) (quoting Georgetown Univ. v. District of Columbia Dep't of Employment Servs., 971 A.2d 909, 915 (D.C.2009)). On questions of fact, we review the record for substantial evidence supporting the Board's conclusions. “Under the ‘substantial evidence test,’ we will affirm an agency decision when (1) the agency makes findings of fact on all material contested issues; (2) these findings rationally lead to conclusions of law that are legally sufficient, under the governing statute, to support the agency's decision; and (3) each finding is supported by evidence sufficient to convince reasonable minds of its adequacy.” Ramey v. District of Columbia Dep't of Employment Servs., 997 A.2d 694, 698 (D.C.2010) (citing Clark v. District of Columbia Dep't of Employment Servs., 743 A.2d 722, 726 (D.C.2000)). “Questions of law ... are reviewed de novo.” McCamey v. District of Columbia Dep't of Employment Servs., 947 A.2d 1191, 1196 (D.C.2008) (en banc); accord, Kuri Bros., Inc. v. District of Columbia Bd. of Zoning Adjustment, 891 A.2d 241, 245 (D.C.2006) (“[A]lthough we accord weight to the agency's construction of the statutes which it administers, the ultimate responsibility for deciding questions of law is assigned to this court.”).

III. The Changing Legal Landscape

The Workers' Compensation Act provides benefits to compensate for wages lost as a result of “accidental injury or death arising out of and in the course of employment.” See D.C.Code § 32–1501(12) (2001). Therefore, a valid claim based on lost wages must include three basic elements: (1) an accidental injury, (2) an actual workplace condition that could have caused the injury, and (3) a causal link between the injury and the workplace. Where the injury is psychological, we review the claim as either a “physical-mental” ⁴ case under the principles of McCamey, 947 A.2d 1191, or as a “mental-mental” ⁵ case under the principles of Ramey, 997 A.2d 694.

Over the five years in which Mr. Muhammad has attempted to resolve his case through the workers' compensation system, the legal landscape for claims of psychological injury has changed dramatically. When Mr. Muhammad originally filed his claim, this jurisdiction applied an “objective standard” requiring “the claimant [to] show[ ] that the actual working conditions could have caused similar emotional injury in a person who was not significantly predisposed to such injury.” Dailey v. 3M Co., H & AS No. 85–259, 1988 D.C. Wrk. Comp. LEXIS 1, at *8 (D.C. Dep't of Employment Servs. May 19, 1988); see also Porter v. District of Columbia Dep't of Employment Servs., 625 A.2d 886, 889 (D.C.1993) (endorsing the objective test). However, in McCamey, a 2008 en banc decision, we rejected this “objective standard,” which delves into an “employee's particular susceptibilities,” as contrary to the fundamental, humanitarian purpose of the Workers' Compensation Act. 947 A.2d at 1206, 1209. Two years later, in Ramey, we upheld the Board's decision to “adopt [ ] the test announced by this court in McCamey for use in physical-mental cases, for application in mental-mental cases.” 997 A.2d at 700 (reviewing the Board's mental-mental rule announced in Ramey v. Potomac Electric Power Co., CRB No. 06–38, 2008 WL 3338467 (D.C. Dep't of Employment Servs. July 24, 2008)).

In 2008, we also decided Nixon v. District of Columbia Dep't of Employment Servs., which discussed whether an injury sustained as a result of vocational rehabilitation may be considered as “aris[ing] both ‘out of and in the course of employment.’ ” 954 A.2d 1016, 1024 (D.C.2008) (q...