Nixon v. Dept. of Employment Services, No. 06-AA-1511.

• Decision Date: 21 August 2008
• Docket Number: No. 06-AA-1511.
• Parties: Gaynell NIXON, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent.
• Court: D.C. Court of Appeals

954 A.2d 1016

Gaynell NIXON, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent.

No. 06-AA-1511.

District of Columbia Court of Appeals.

Submitted June 4, 2008.

Decided August 21, 2008.

James Quincy Butler was on the brief for petitioner.

Pastell Vann, Senior Assistant Attorney General, and Linda Singer, Attorney General for the District of Columbia at the time the brief was filed, Todd S. Kim, Solicitor General and Edward E. Schwab, then Deputy Solicitor General, were on the brief for respondent.

Before GLICKMAN and THOMPSON, Associate Judges, and NEBEKER, Senior Judge.

THOMPSON, Associate Judge:

On January 23, 1996, petitioner Gaynell Nixon sustained injuries to her foot while working for the District of Columbia Housing Authority. She subsequently claimed and received an award of temporary total disability benefits under the Comprehensive Merit Personnel Act ("CMPA").¹ In September 2004, the Department of Employment Services ("DOES") informed Nixon that it would reduce her disability benefits beginning in October 2004, on the basis of independent medical evaluations that concluded that Nixon could perform sedentary work and a labor-market survey that identified sedentary positions commensurate with Nixon's limitations. Through a request for reconsideration submitted on September 24, 2004, Nixon sought restoration of full disability benefits. In March 2001, Nixon had also requested compensation for medical expenses incurred as a result of a head injury that she sustained in a vehicle accident on February 22, 2001, while returning home from a job interview scheduled by her vocational rehabilitation counselor. In a determination dated January 6, 2006, DOES denied both of Nixon's requests. A DOES Administrative Law Judge ("ALJ") sustained the denial, and the Compensation Review Board (the "CRB") upheld the ALJ's decision.

Nixon contends that the CRB decision upholding the denial of her claim for restoration of total disability benefits was not supported by substantial evidence; that because of DOES's delay in making a decision on Nixon's request to reconsider its decision to reduce her disability benefits and a decision on her request for medical benefits related to her vehicle accident, the law requires that her requests be deemed approved; and that the CRB misapplied the law in denying her claim for medical benefits. We reject the first two of these arguments and affirm the CRB's decision as to the reduction in Nixon's disability benefits. However, we reverse, and remand for further consideration, the CRB's ruling with respect to Nixon's claim for medical benefits in connection with her head injury.

I. Standard of Review

We review decisions of the CRB under the "substantial evidence" standard. Harris v. District of Columbia Office of Worker's Comp., 660 A.2d 404, 407 (D.C. 1995). This standard requires us to affirm the CRB's decision when: (1) the decision states findings of fact on each material, contested factual issue; (2) the findings are based on substantial evidence; and (3) the conclusions of law follow rationally from the findings. See Sodexho Marriott Corp. v. District of Columbia Dep't of Employment Servs., 858 A.2d 452, 454-55 (D.C.2004). Substantial evidence is relevant evidence such as a "reasonable mind might accept as adequate to support a conclusion." Giles v. District of Columbia Dep't of Employment Servs., 758 A.2d 522, 524 (D.C.2000) (quotation marks and citation omitted). Our deference to CRB decisions "extends to matters of statutory interpretation, yielding only where the [agency's] reasoning is unreasonable in light of the language of the statute, the legislative history, or judicial precedent." Sodexho, 858 A.2d at 455 (citation omitted).

II. Analysis

A. The Reduction in Nixon's Disability Benefits

In arguing that the ALJ's and CRB's decisions are not supported by substantial evidence in the record, Nixon points to the ALJ's finding that the District, Nixon's employer, met "its burden of demonstrating a change in [Nixon's] medical condition" (italics added) and to the CRB's agreement that the District "demonstrate[d] that there was a change in [Nixon's] medical condition to justify a modification in her benefits." (Italics added). Nixon contends that, contrary to these findings, the medical evidence in the record "proves that there was no significant change in the condition of [her] foot that would support a change or reduction in disability benefits." She cites both her own testimony that the condition of her foot has "not improved for the better" and physician reports in the record that confirm that she reached "maximum medical improvement in 1998" — meaning, Nixon argues, that there was no change in her medical condition in 2004, the year when the District determined to reduce her benefits.

The issue before the ALJ, however, was whether there was a change in Nixon's medical condition from the time when it was previously determined that she qualified for temporary total disability benefits. The record shows that a DOES Hearings and Appeals Examiner found in October 1997 that Nixon "had not reached maximum medical improvement"² following her January 1996 work-related injury and that the District had failed to prove that Nixon was no longer disabled from that injury. But when DOES announced nearly seven years later, in September 2004, that it would reduce Nixon's benefits, the change on which it relied was that Nixon had reached maximum medical improvement in the years between 1997 and 2004, and no longer was totally disabled.

More specifically, DOES relied on an April 23, 2004 letter from Independent Medical Evaluator ("IME") Dr. Noel Gressieux, "opining that Nixon had reached maximum medical improvement" and was "capable of returning to sedentary type of work"; and on a July 8, 2004 letter from IME Dr. Robert Smith, who agreed that Nixon had reached "maximum medical improvement with regard to orthopedic treatment and any type of surgery" and opined that, with some continued "limited treatment to control her pain syndrome on a permanent basis," she "could do a sedentary type job, full time with standing and walking limited to 10 minutes out of every hour." Both IMEs concluded that five sedentary positions identified in a Labor Market Survey and Job Search conducted by Vocational Assessment Services were commensurate with Nixon's limitations. The ALJ found that with the foregoing evidence, the District had met its burden of proof with respect to a modification of benefits and that the burden therefore shifted to Nixon to "bring forth medical evidence to show that she [was] not able to return to not only her regular duties but the identified sedentary duties as well." Nixon attempted to meet that burden by offering a March 24, 2006 letter from her treating physician, Dr. Howard Horowitz, but Dr. Horowitz corroborated the IMEs' opinions that Nixon had reached maximum medical improvement and that "there [was] no impediment to her engaging in [sedentary] employment so long as certain restrictions [regarding the amount of time she spent standing or walking per hour were] observed." We think there can be no serious disagreement that the foregoing reports constituted substantial evidence supporting the ALJ's finding and the CRB's conclusion that there was a change in Nixon's condition that justified the reduction in her benefits.

B. Application of the "Deemed Accepted" Rule

Nixon contends that she nevertheless is "entitled to a ruling in her favor" on her claim for restoration of disability benefits, as well as on her claim for medical benefits arising out of her vehicle accident, because the District failed to act within 30 days on her request for reconsideration of the benefit-reduction determination and similarly failed to act within thirty days on her claim for medical benefits. She relies on D.C.Code § 1-623.24(a-3)(1) (2007 Supp.), which provides that "[i]f the Mayor or his or her designee fails to make a finding of facts and an award for or against payment of compensation within 30 calendar days [of a filing of a claim for compensation], the claim shall be deemed accepted, and the Mayor or his or her designee shall commence payment of compensation on the 31st day following the date the claim was filed." In her brief to the CRB, Nixon also cited D.C.Code § 1-623.24(a-4)(2) (2007 Supp.), which provides that "[t]he Mayor or his or her designee shall provide a written decision on [a] reconsideration request within 30 days of receipt of the request.... [Otherwise], the claim shall be deemed accepted, and payment of compensation to the claimant shall commence on the 31st day following the date the request was filed."

DOES denied Nixon's September 24, 2004 reconsideration request on January 6, 2006, well beyond thirty days after Nixon submitted it. However, the CRB rejected Nixon's argument that her request should be deemed accepted, pointing out that section 1-623.24(a-3)(1) was not added to the CMPA until 2005, and had an effective date of April 5, 2005.³ (The same is true of section 1-623.24(a-4)(2)). The CRB reasoned that the new law should not be applied "retroactively" or to "cases already in process" in the absence of evidence that this was the legislative intent. We need not decide whether the CRB was correct on this point in order to resolve Nixon's claim as to the reduction of her disability benefits, because we are persuaded that sections 1-623.24(a-3)(1) and -623.24(a-4)(2) apply only to claims to initiate payment of disability benefits, and that neither section applies to requests for reconsideration of a modification of benefits. To begin with, both section 1-623.24(a-4)(2) and section 1-623.24(a-3)(1) refer to "commenc[ing]" (rather than reinstating) compensation if a decision is not made within thirty days. Moreover, by its express terms, section 1-623.24(a-4) applies to requests for reconsideration of decisions "under subse...