Rocha-Guzman v. District of Columbia Department of Employment Services, 092817 DCCA, 14-AA-612
|Opinion Judge:||Ruiz, Senior Judge|
|Party Name:||Nery S. Rocha-Guzman, Petitioner, v. District of Columbia Department of Employment Services, Respondent, and Haris Design & Construction Company, et al.,|
|Attorney:||Michael J. Kitzman was on the brief for petitioner. Eugene A. Adams, Interim Attorney General for the District of Columbia at the time the statement was filed, Todd S. Kim, Solicitor General, Loren L. AliKhan, Deputy Solicitor General, and Donna M. Murasky, Senior Assistant Attorney General, Offi...|
|Judge Panel:||Before Glickman and Easterly, Associate Judges, and Ruiz, Senior Judge.|
|Case Date:||September 28, 2017|
|Court:||Court of Appeals of Columbia District|
Submitted May 7, 2015
On Petition for Review of Decision and Order of the District of Columbia Department of Employment Services Compensation Review Board CRB-006-14
Michael J. Kitzman was on the brief for petitioner.
Eugene A. Adams, Interim Attorney General for the District of Columbia at the time the statement was filed, Todd S. Kim, Solicitor General, Loren L. AliKhan, Deputy Solicitor General, and Donna M. Murasky, Senior Assistant Attorney General, Office of the Solicitor General, filed a statement in lieu of brief for respondent.
Mary G. Weidner was on the brief for intervenors.
Before Glickman and Easterly, Associate Judges, and Ruiz, Senior Judge.
Ruiz, Senior Judge
This petition for review arises from Nery Rocha-Guzmán's claim for worker's compensation benefits due to permanent total disability resulting from an injury sustained while working for his former employer, Haris Design & Construction Co. ("Haris Design"). Petitioner seeks review of an order of the District of Columbia Department of Employment Services ("DOES") Compensation Review Board ("CRB") which affirmed a compensation order issued by DOES Administrative Hearings Division Administrative Law Judge ("ALJ") Linda F. Jory denying petitioner's claim. We hold that the CRB erred in affirming the ALJ's compensation order, and thus remand the case for further proceedings consistent with this opinion.
Petitioner worked as a foreman on construction and renovation projects for Haris Design. His primary duties were to convey the English-speaking superintendent's work assignments to the Spanish-speaking construction crew and to monitor the crew's work.
On August 9, 2010, when the crew was short two workers, petitioner filled in for one of the workers. While petitioner was standing on a roof, it gave way, and petitioner's legs went through the roof, causing him injuries. Petitioner initially sought worker's compensation benefits for temporary total disability, which the parties stipulated arose out of his employment with Haris Design, and the employer paid two lump-sum payments. After receiving treatment for his injuries, petitioner returned to work in November or December of 2010. However, in February 2011, petitioner's employment with Haris Design was terminated on the basis of a review of the employer's personnel records which revealed insufficient documentation that petitioner, who came to this country from Bolivia, was authorized to work in the United States. Two years later, petitioner sought permanent total disability benefits as of April 2013, claiming that his medical condition had worsened in the intervening period and he was no longer capable of performing any work duties.
Following an evidentiary hearing, the ALJ concluded that petitioner had not established that he was permanently and totally disabled as a result of a work-related injury - that is, that his work injury prevented him from returning to his pre-injury job. In reaching this conclusion, the ALJ found petitioner's testimony about his injury and disability to be "blatantly incredible" based, in part, on petitioner's request for an interpreter during the hearing. The ALJ also noted that petitioner had returned to his pre-injury job as a foreman, and was working in that position at the time of his termination in 2011. Further, the ALJ credited the testimony of the president of Haris Design that, with proper documentation, petitioner would have still been in Haris Design's employ in 2013. In short, the ALJ found that it was petitioner's immigration status, not the work-place injury, that explained why petitioner was not employed as a foreman, and denied petitioner's claim for disability compensation.
Petitioner filed an administrative appeal with the CRB, challenging the ALJ's analysis and lack of substantial evidence to support the ALJ's findings. The CRB affirmed, concluding that the ALJ's Compensation Order properly applied the burden-shifting framework set out in Logan v. District of Columbia Dep't of Emp't Servs., 805 A.2d 237 (D.C. 2002), and that substantial evidence supported the ALJ's determination that petitioner was not a credible witness, and thus had failed to demonstrate that he was totally and permanently disabled. Petitioner filed this petition for review of the CRB's decision pursuant to D.C. Code § 32-1522 (b)(3) (2012 Repl.).
On petition for review of a case involving worker's compensation, we review the decision of the CRB. See Jones v. District of Columbia Dep't of Emp't Servs., 41 A.3d 1219, 1221 (D.C. 2012). We will set aside the CRB's decision if it is "[a]rbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." D.C. Code § 2-510 (a)(3)(A) (2012 Repl.). The standard the CRB must apply in reviewing compensation orders is well established. "[O]ur cases require that (1) the [ALJ's] decision must state findings of fact on each material, contested factual issue; (2) those findings must be based on substantial evidence; and (3) the conclusions of law must follow rationally from the findings." Stewart v. District of Columbia Dep't of Emp't Servs., 606 A.2d 1350, 1351 (D.C. 1992). "Substantial evidence is more than a mere scintilla . . . [and] means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Muhammad v. District of Columbia Dep't of Emp't Servs., 774 A.2d 1107, 1111 (D.C. 2001) (quoting Stewart, 606 A.2d at 1351). Whether a compensation order is supported by substantial evidence "presents an issue of law which this court is in a position to address without need for deference to the agency's decision." Id. at 1110 (quoting Wash. Metro Area Transit Auth. v. District of Columbia Dep't of Emp't Servs., 683 A.2d 470, 476 (D.C. 1996) ("WMATA I").
Petitioner makes two arguments for reversal, both of which were also presented to the CRB: first, that the ALJ improperly applied the Logan burden-shifting framework for analyzing evidence of total disability claims, and second, that the ALJ committed legal error in the consideration of evidence to determine that petitioner was not a credible witness. We disagree on the first point, but agree on the second and remand for proper reconsideration of the evidence presented.
A. Logan Burden-Shifting Framework
Logan adopted a three-step burden-shifting analysis for worker's compensation claims of total disability, whereby: (i) "a claimant establishes a prima facie case of total disability, " (ii) "the employer [then] must present sufficient evidence of suitable job availability to overcome a finding of total disability, " and finally, (iii) the claimant "refute[s] the employer's presentation . . . either by challenging the legitimacy of the employer's evidence of available employment or by demonstrating diligence, but a lack of success, in obtaining other employment." Logan, 805 A.2d at 243 (adopting burden-shifting approach for adjudication of claims under the federal Longshoreman's Act set out, inter alia, in Crum v. Gen. Adjustment Bureau, 738 F.2d 474, 479 (D.C. Cir. 1984)). We have described the claimant's initial burden of making a prima facie case as requiring a showing of "an inability to return to his usual employment, " or "an inability to perform his or her usual job." Id. at 242 (quoting Crum, 738 F.2d at 479). To make a prima facie case, the plaintiff's burden is to prove total disability by a preponderance of the evidence. See Wash. Metro Area Transit Auth. v. District of Columbia Dep't of Emp't Servs., 992 A.2d 1276, 1282 (D.C. 2010) ("WMATA II"); Golding-Alleyne v. District of Columbia Dep't of Emp't Servs., 980 A.2d 1209, 1215-16 (D.C. 2009).
Petitioner contends that the ALJ and the CRB did not follow the Logan framework by "skip[ping] step one, establishing a prima facie case of disability, and proceed[ing] instead to a hybrid of steps two and three." According to petitioner, he established a prima facie case for disability through the reports of his doctors and vocational counselor, and the ALJ improperly considered evidence presented by the employer (employer's testimony that petitioner was able to resume his usual duties when he returned to work in late 2010, and could have remained in Haris Design's employ but for his undocumented work status) in determining that he had failed to do so.
We disagree with petitioner's contention that proper application of the Logan burden-shifting framework precludes the ALJ's consideration of the employer's evidence in determining whether a claimant's initial burden to present a prima facie case of total disability preventing return to prior employment has been satisfied. That the ALJ may consider the employer's evidence in making this determination is implicit in the claimant's burden, in "step one" of the Logan analysis, to prove disability by a preponderance of the evidence, which requires a weighing of all the evidence presented.2 Logan's burden-shifting framework does not dictate the order in which evidence may be presented or admitted during a hearing or procedurally constrain the ALJ's consideration of evidence. As long as the ALJ considers evidence relevant to each step, and applies the shifting burdens of proof to the subject of each step, the order in which evidence is presented, admitted, and/or reviewed does not necessarily matter.3 Accordingly, in considering whether a claimant has made a prima facie case of permanent total disability under "step one, " i.e., inability to return to his...
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