Quaranta v. D.C. Dep't of Emp't Servs.

• Decision Date: 27 October 2022
• Docket Number: 19-AA-1112
• Citation: 284 A.3d 389
• Parties: Santino QUARANTA, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent, and D.C. United and Great Divide Insurance Co., Intervenors.
• Court: D.C. Court of Appeals

284 A.3d 389

Santino QUARANTA, Petitioner,

v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent,andD.C. United and Great Divide Insurance Co., Intervenors.

No. 19-AA-1112

District of Columbia Court of Appeals.

Argued March 30, 2021

Decided October 27, 2022

Benjamin T. Boscolo, Greenbelt, MD, for petitioner.

Sheryl A. Tirocchi, Ellicott City, MD, for intervenors.

Karl A. Racine, Attorney General for the District of Columbia, with whom Loren L. AliKhan, Solicitor General at the time, Caroline S. Van Zile, Principal Deputy Solicitor General at the time, and Carl J. Schifferle, Deputy Solicitor General, filed a Statement in Lieu of Brief based on the decision and order of the Compensation Review Board.

Before McLeese and Deahl, Associate Judges, and Kravitz, Associate Judge, Superior Court of the District of Columbia.^*

Deahl, Associate Judge:

Santino Quaranta sought to modify a compensation order denying him wage-loss disability benefits. He claimed that he had experienced a change of condition concerning his "degree of disability," owing to a worsening of his symptoms, sufficient to warrant such a modification. See D.C. Code § 32-1524(a). He requested an evidentiary hearing on the matter. A Department of Employment Services Administrative Law Judge dismissed his application, concluding that Quaranta had not made the threshold factual showing that a change in condition has occurred to entitle him to such a hearing. See Snipes v. D.C. Dep't of Emp't Servs. , 542 A.2d 832, 834-35, 834 n.4 (D.C. 1988). The Compensation Review Board (CRB) affirmed, and Quaranta now petitions this court for review. For the following reasons, we affirm.

I.

Santino Quaranta played professional soccer for D.C. United for about eight years: first from 2001 to 2006, and then again from 2008 to 2011. During a match in 2010, he "went blank" and suffered a concussion when a ball struck the right side of his head. A year later, he sustained a more severe concussion

when a teammate accidentally elbowed him in the head during practice. These injuries caused Quaranta to miss several games, but he ultimately returned to play the final few months of the 2011 season, after which his contract with D.C. United expired. While D.C. United did not offer to renew Quaranta's contract for the 2012 season, he had offers from "five or six" clubs to sign him at a comparable salary. Notwithstanding those offers, in 2012 Quaranta opted to retire from professional soccer and pursue other ventures, including co-founding the Pipeline Soccer Club, where he coached and currently serves as vice president.

Two years later, in 2014, Quaranta filed a claim for permanent partial disability (PPD) benefits. He contended that he suffered from post-concussive symptoms

that precluded him from playing professional soccer and "at times may be debilitating and prevent him from performing his job" with Pipeline. As support for his claim, he produced an April 30, 2013, report from his treating physician, Dr. Kevin Crutchfield, noting that Quaranta "still gets intermittent dizziness and unsteadiness with headaches." He also provided an April 8, 2014, report from Dr. Crutchfield, opining that Quaranta's head injuries "have led to a chronic recurrent inflammatory condition of the occipital nerve." At that time, Dr. Crutchfield recommended a series of "trigger point" steroid injections and, if the steroid injections proved unsuccessful, a "simple" occipital nerve release procedure. This 2014 claim was denied on the basis that Quaranta had voluntarily retired for reasons unrelated to his head injuries, and so could not recoup the salary he voluntarily walked away from. See D.C. Code § 32-1508(3)(V)(iii). The CRB affirmed, as did this court. Quaranta v. D.C. Dep't of Emp't Servs. , No. 17-AA-195, Mem. Op. & J. at 5-6, 184 A.3d 852 (D.C. Apr. 20, 2018) ( Quaranta I ).

A year later, in 2019, Quaranta applied for a modification of the compensation order denying benefits, claiming a "change of conditions." See D.C. Code § 32-1524(a). His application stated that he was again seeking permanent partial disability benefits, with little explication. Intervenors D.C. United and Great Divide Insurance Company requested a Snipes hearing, which is a preliminary hearing where the applicant bears the burden of producing evidence demonstrating a "reason to believe that a change of conditions" warranting an award modification has occurred. Snipes , 542 A.2d at 835. A hearing before a Department of Employment Services Administrative Law Judge followed.

During the Snipes hearing, as evidence of a change in condition, Quaranta submitted a report and referral that Dr. Crutchfield completed after a June 19, 2019, visit. It looked much like the 2013 and 2014 reports that Quaranta submitted in support of his initial claim. Namely, the 2019 report indicated, like the prior reports, that Quaranta continued to experience headaches, dizziness, and other symptoms. The 2019 report, like the ones years before, also recommended an "occipital nerve release procedure if" Quaranta was not responsive to the steroid injections, and it included a referral to a doctor for that potential procedure. Beyond Dr. Crutchfield's report, Quaranta made a proffer of facts about his condition as of the hearing date. The proffer was brief and follows (as recounted by his counsel) in its entirety:

Mr. Quaranta is here, and I'll proffer to testify that over the last few years his post-concussion or cervico-cranial symptoms have deteriorated to the point where even his sedentary work at the computer, anything with lots of stimulus, whether it's loud noise, loud sound, too many things going on around the same time, causes a recurrence of his symptoms. At this point, he's not even capable of playing soccer recreationally, which is a change in condition from 2018 and it's on the basis of both medical change in condition and his abilities in the workplace, in the job that he's doing now, that have caused us to file this application for a change in condition.

There was no mention of Quaranta suffering any wage loss in his post-soccer career due to his recurring symptoms, or any forecast of such a diminution in salary. While his counsel at one point supplemented the proffer by implying that Quaranta would elect the surgery recommended by Dr. Crutchfield (which he had apparently forgone in the years since it was first suggested), there was no mention in Dr. Crutchfield's report or Quaranta's proffer of the surgery involving a recuperation period that would cause him any wage loss. Quaranta asked that the modified period of disability begin running as of about a month earlier, from his June 2019 visit with Dr. Crutchfield, when he received some treatment ("steroid injections with occipital nerve blocks

") and was prescribed some medications. Quaranta also orally amended his PPD benefits claim to one for temporary partial disability ("TPD") benefits, with the explanation that "[p]erhaps the surgery will completely resolve [Quaranta's] symptoms ... [we] don't know."

ALJ Gwenlynn D'Souza rejected Quaranta's request for an evidentiary hearing and dismissed his application. The ALJ opined that Dr. Crutchfield's 2019 medical report was "in substance ... no different" than his 2014 medical report, so Quaranta failed to meet his evidentiary burden of demonstrating changed conditions. She further opined that the "law of the case" established that Quaranta's "post-concussion injuries did not cause wage loss after" he voluntarily took a lower paying job.

Quaranta again sought review by the CRB. In his application for review, he stressed that he was no longer seeking PPD benefits (as in the prior action), but TPD benefits for a "[distinct] period of temporary disability occasioned by the deterioration of his physical symptoms." He also highlighted that he was now electing the surgical procedure that he had previously rejected, as more evidence of a change in condition. Quaranta further noted that the ALJ did not even mention his factual proffer in her roughly one-page ruling, leading him to conclude that she "gave no consideration to his proffered testimony." The CRB affirmed. While it agreed with Quaranta that the ALJ erred in not expressly referencing his factual proffer, it declined to infer from that omission that she did not consider it. Regardless, the CRB found that the error was harmless, because it was "law of the case" that "the causal link between [Quaranta's] work injury and his new claim for wage loss occurring in 2019 has been severed." Quaranta now petitions this court for review of that decision.

II.

This court plays a "limited role" in reviewing workers’ compensation decisions of the CRB. Hawk v. D.C. Dep't of Emp't Servs. , 244 A.3d 1018, 1021 (D.C. 2021) (citation omitted). We will uphold the CRB's ruling so long as " ‘substantial evidence’ supports each factual finding and its legal conclusion ‘flows rationally’ from those findings," D.C. Pub. Schs. v. D.C. Dep't of Emp't Servs. , 262 A.3d 213, 219 (D.C. 2021) (citation omitted), and reverse "only if we conclude that the decision was arbitrary, capricious, or otherwise an abuse of discretion and not in accordance with law," Hawk , 244 A.3d at 1021 (citation omitted).

We agree with the ALJ and the CRB that the wage-loss claim Quaranta presented to them is precluded by the law of the case. Lynn v. Lynn , 617 A.2d 963, 969 (D.C. 1992) ("It is the ‘law of the case’ principle which precludes reopening questions resolved by an earlier appeal in the same case."). In reaching that conclusion, it is important to understand just what Quaranta's claim was before the agency, and what it was not, because it has since morphed considerably on appeal (as discussed below).

In order to justify the modification of a compensation order that Quaranta sought, he had to provide some threshold "reason to believe that a change of conditions ha[d] occurred which raises issues concerning ... [t]he fact or the...