Ross v. D.C. Dep't of Emp't Servs., 13–AA–200.

• Decision Date: 29 October 2015
• Docket Number: No. 13–AA–200.,13–AA–200.
• Parties: Cassandra ROSS, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent.
• Court: D.C. Court of Appeals

125 A.3d 698

Cassandra ROSS, Petitioner,

v.DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent.

No. 13–AA–200.

District of Columbia Court of Appeals.

Submitted Sept. 25, 2015.

Decided Oct. 29, 2015.

Cassandra Ross, pro se.

Irvin B. Nathan, Attorney General for the District of Columbia at the time the brief was filed, Todd S. Kim, Solicitor General, Loren L. AliKhan, Deputy Solicitor General, and Mary L. Wilson, Senior Assistant Attorney General, were on the brief for respondent.

Jonathan Levy and Paul Perkins, Washington, DC, were on the brief for amicus curiae, The Legal Aid Society of the District of Columbia, in support of neither party.

Before FISHER and McLEESE, Associate Judges, and RUIZ, Senior Judge.

RUIZ, Senior Judge:

Petitioner Cassandra Ross appeals the 2013 decision of the Compensation Review Board ("CRB") terminating the disability benefits that she had received for over a decade on the basis that her injury had resolved. We reverse and remand for consideration of the agency-employer's request to terminate benefits, under the proper standard: one that imposes the ultimate burden on the employer after a burden-shifting analytical framework.

I. Facts

Petitioner suffered back and leg injuries in 1994 while working as a physician's assistant for the District of Columbia Department of Corrections ("the agency-employer"). In 1998, she suffered complications from her earlier injury, which caused additional injury to her neck and knee. Petitioner applied for, and received, temporary total disability benefits for these work-related injuries pursuant to the District of Columbia Government Comprehensive Merit Personnel Act of 1978, D.C.Code, as amended, § 1–623.01 (2014 Repl.) ("CMPA").¹

In 2011, the District required that petitioner submit to a medical examination by an assigned doctor who was not her treating physician. Based on the results of that examination, the Office of Risk Management issued a Notice of Intent to Terminate, and—after reconsideration, requested by petitioner—a Final Decision terminating her workers' compensation benefits. On appeal, a Department of Employment Services ("DOES") Administrative Law Judge ("ALJ") upheld the termination, concluding in a 2012 Compensation Order that petitioner's injuries had resolved such that she was no longer entitled to benefits. The ALJ found that the agency-employer "presented substantial evidence that [petitioner's] current [medical] conditions are not caused by her employment," that is, the work-related injuries that she suffered in 1994, and that petitioner was capable of returning to work. The ALJ further found that petitioner's evidence, which consisted primarily of reports from her treating physicians, was "insufficient to overcome that presented" by the agency-employer, and thus terminated her benefits. In 2013, the CRB affirmed the ALJ's 2012 Compensation Order.

On appeal to this court, petitioner argues that: (i) DOES should have given preference to her treating physician's reports over the District's examining physician, (ii) she is entitled to a presumption of continued compensation, and (iii) substantial evidence does not support the CRB's affirmance of the Compensation Order terminating her benefits.

Before turning to petitioner's arguments, however, we address the CRB's en banc decision in Mahoney v. District of Columbia Public Schools, CRB No. 14–67 (Nov. 12, 2014), released following the CRB's 2013 decision and order in this case. The court appointed the Legal Aid Society of the District of Columbia to file a brief as amicus curiae on the CRB's Mahoney decision and its applicability to this case.

II. Applicable Law

Under the CMPA, an award of compensation may be modified when there is "reason to believe a change of condition has occurred" and "shall be made in accordance with [ ] standards and procedures" set forth in the statute. D.C.Code § 1–623.24(d)(1) (2014 Repl.) (setting forth requirement of written notice to claimant, opportunity for claimant to respond, and "full review of the reasons for the proposed modification and the arguments and information provided by the claimant"). Mahoney clarified the procedure to be followed when a District agency-employer has accepted a claim for workers' compensation and paid workers' compensation benefits, but later moves to terminate or modify those benefits. The CRB determined that in such situations, the employer-agency "has the burden of proving by a preponderance of the evidence that conditions have changed such that the claimant no longer is entitled to the benefits" the agency-employer has been paying. Mahoney, CRB No. 14–67 at 8. Mahoney established a burden-shifting framework to be applied by DOES ALJs when considering whether benefits may be terminated or modified. Under the new framework, the agency bears the initial burden of production, by presenting "current and probative evidence" that the claimant's condition has "sufficiently changed to warrant a modification or termination of benefits." Id. at 9. If the agency-employer does so, the burden of production shifts to the claimant, who may rebut that evidence by presenting "reliable and relevant" evidence that his or her condition has not changed to warrant a modification or termination. Id. If the claimant presents such evidence, the ALJ then considers the totality of the evidence to determine whether the agency-employer has proved, by a preponderance of the evidence, that the claimant's benefits should be modified or terminated.² Id.

The District of Columbia, on behalf of the Department of Employment Services, acknowledges that the Mahoney framework is a proper interpretation of CMPA, and that it should apply to petitioner's case, which was pending on appeal to this court when Mahoney was decided. DOES further acknowledges that the ALJ's rationale does not follow the burden-shifting framework or apply the ultimate standard of proof laid out in Mahoney. We agree.

Although we retain final authority on issues of statutory interpretation, we acknowledge the "CRB's special expertise in administering the CMPA," and accordingly we "defer to their reasonable interpretations of ambiguous provisions in that legislation." Sheppard v. District of Columbia Dep't of Emp't Servs., 993 A.2d 525, 527 (D.C.2010) (quoting Howard Univ. Hosp. v. District of Columbia Dep't of Emp't Servs., 960 A.2d 603, 606 (D.C.2008) ). We will abide by the CRB's interpretation of the CMPA even where an alternate interpretation is also reasonable, or where we may have interpreted the statute differently than did the CRB if construing the statute in the first instance. Id.

The CMPA is silent on the burdens of production and persuasion where an agency-employer seeks to terminate a claimant's workers' compensation benefits granted by a prior compensation order. In the absence of express statutory guidance, we conclude that the burden-shifting framework established by the CRB in Mahoney, which places the ultimate burden of persuasion on the agency-employer, is a reasonable interpretation of the statute.

As this court noted in Kea v. Police & Firemen's Ret. & Relief Bd., "[i]t is a fundamental principle of administrative, statutory and case law that the ‘burden of proof is on the proponent of the rule or order.’ " 429 A.2d 174, 175 (D.C.1981) (quoting D.C.Code 1973, § 1–1509(b) (currently codified as D.C.Code § 2–509 (2012 Repl.) and 5 U.S.C. § 556(d) (1976) )). Under that principle, where the agency-employer asserts that circumstances have changed so as to warrant termination or modification of a public worker's compensation benefits, the ultimate burden of demonstrating a change of circumstances should fall on the agency-employer as the proponent of a change in benefits. The CRB's Mahoney decision applies that "fundamental principle" to CMPA cases.

Moreover, placing the burden of proof on the agency-employer seeking to terminate workers' compensation benefits of a public employee under the CMPA is consistent with the District's other workers' compensation statutes. While workers' compensation for most public sector employees is governed by the CMPA, the Police and Firefighters Retirement and Disability Act, D.C.Code § 5–701 ("PFRDA") provides workers' compensation benefits for the District's police and firefighters, and the District of Columbia Workers' Compensation Act, D.C.Code § 32–1501 ("WCA") provides workers' compensation benefits for private sector employees. We interpret these three statutes to be consistent with each other, even where the statutes' language is not identical, in light of their similar humanitarian purpose. See, e.g., Nunnally v. District of Columbia Metro. Police Dep't, 80 A.3d 1004, 1011 & n. 14 (D.C.2013) (utilizing language of the PFRDA to construe the meaning of "performance of duty" under the CMPA); McCamey v. District of Columbia Dep't of Emp't Servs., 947 A.2d 1191, 1199–201 (D.C.2008) (en banc) (discussing the conceptual closeness of the CMPA to the WCA and applying the aggravation rule, expressly codified in the WCA, to the CMPA). In Washington Metro. Area Transit Auth. v. District of Columbia Dep't of Emp't Servs., a private sector case under the WCA, we stated that where the employer wished to terminate workers' compensation benefits, "the burden is on the party asserting that a change of circumstances warrants modification to prove the change." 703 A.2d 1225, 1231 (D.C.1997) (citing, inter alia, 8 LARSON, LARSON WORKERS' COMPENSATION LAW , § 81.33(c) at 15–1194.32). The CRB's decision in Mahoney interprets the CMPA consistently with this court's interpretation of the WCA.

Additionally, placing the burden of persuasion on the agency-employer is consistent with the Federal Employees' Compensation Act, 5 U.S.C. § 8101 ("FECA"), the "pre-existing federal counterpart" to the CMPA. McCamey, 947 A.2d at 1200. We have previously "analogized provisions of the CMPA to FECA," and follow the interpretation of the FECA in interpreting the CMPA...