Santos v. Dept. of Employment Services, 86-1177.

• Decision Date: 29 January 1988
• Docket Number: No. 86-1177.,86-1177.
• Citation: 536 A.2d 1085
• Parties: Ana D. SANTOS, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent, and Washington Hilton Hotel, Intervenor.
• Court: D.C. Court of Appeals

536 A.2d 1085

Ana D. SANTOS, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent, and Washington Hilton Hotel, Intervenor.

No. 86-1177.

District of Columbia Court of Appeals.

Argued September 22, 1987.

Decided January 29, 1988.

Michael R. Kowalski, for petitioner.

Jeffrey R. Miller, Washington, D.C., for intervenor.

Before NEWMAN, FERREN, and BELSON, Associate Judges.

NEWMAN, Associate Judge:

Ana D. Santos appeals from an order of the Department of Employment Services (hereinafter "DOES" or "the Department") awarding her workers' compensation benefits for the period from May 7 to June 4, 1984. She claims entitlement to total temporary disability and medical expense benefits from the time she incurred injury on May 7, 1984. She contended that she continued to be partially disabled at the time of the administrative hearing. Finding error in the Department's ruling, we reverse its order and remand for further proceedings.

I

Ana Santos was employed on the kitchen staff of the Washington Hilton Hotel (the "employer") for over ten years from 1974 until her injury on May 7, 1984. On that date, she slipped on a substance spilled on the kitchen floor and fell on her back. She was taken to the emergency room at George Washington University Hospital, where she was treated for an ankle sprain and cervical strain.

Santos was subsequently referred by the employer to Dr. Joseph D. Linehan, an orthopedic specialist, who first examined her on May 25, 1984. At that time Santos was complaining of headaches and pain in the cervical area. Dr. Linehan diagnosed Santos as suffering from acute cervical strain, and prescribed treatment with anti-inflammatory drugs and muscle relaxers. Although Santos was still complaining of headaches at a follow-up visit on May 30, Dr. Linehan released her to return to work on June 4, 1984, with no restrictions. Her workers' compensation disability payments were terminated on that date.

Santos attempted to return to work on June 12, but could not work a full day due to back pain. After a follow-up visit on June 19, Dr. Linehan noted that Santos was now complaining of pain throughout the area of her shoulders and back. He opined that her symptoms had lasted entirely too long, and that she did not really want to work, though able to do so. He stated in his report. "There is nothing more I can try for her." After another follow-up visit on June 27, Dr. Linehan noted that Santos had subjective complaints of pain in her neck and shoulders and numbness in her hand.

Dissatisfied with the treatment afforded her by Dr. Linehan, Santos consulted Dr. Michael W. Dennis, chief of neurosurgery at Washington Hospital Center. In his first examination of Santos on June 28, 1984, Dr. Dennis found that there was tenderness to palpitation of the trapezius muscles bilaterally, and that the normal lordotic curve¹ was exaggerated due to her overweight condition.² He diagnosed a low grade mechanical injury to the back, and recommended that she be instructed in physiotherapeutic back exercises. At that time, he considered her to be temporarily totally disabled, based upon her subjective complaints, as well as evidence derived from her examination, which was compatible with mechanical instability of the back.

At her return visit to Dr. Dennis' office in September, Santos still complained of pain in her back and shoulders. Dr. Dennis' examination revealed no change in her conditions. Despite his previous recommendations, Santos had received no physiotherapeutic treatment since her first visit.³ He therefore arranged for her to receive such treatment. At that time, he felt that she was still temporarily totally disabled.

Santos' condition began to improve as a result of the physiotherapy. At an office visit on December 13, Dr. Dennis found that Santos was responding to treatment. His report noted that Santos felt considerably better and had asked if she could return to work performing some form of light duty. He therefore released her to return to work on January 2, 1985, with restrictions that she not be given work requiring her to bend her back frequently or stand in a static position for long periods of time, and that she not be required to lift weights of over thirty pounds.

In the meantime, Santos had been examined on a single occasion by a third doctor, Dr. Stephen F. Gunther, Chairman of the Department of Orthopaedic Surgery at the Washington Hospital Center. This examination had taken place on October 29, 1984, at the request of the employer. Dr. Gunther could find no objective evidence indicating that Santos could not perform her usual job. He later testified by deposition that while during the examination Santos claimed to be in great pain, and needed the help of her interpreter⁴ to move about the examing room and get on the examing table; after the examination, he observed her from his office window walking unaided to the car which had brought her, open the car door, and get into the front seat unaided.

After being released for restricted work by Dr. Dennis on January 2, 1985, Santos, according to her hearing testimony, was not offered a position with the employer consistent with her work restrictions. At the request of employer's attorney, a labor market survey was performed by a rehabilitation consultant, in which were listed a number of potential job openings consistent with Santos' abilities and work restrictions. According to her testimony, Santos called the employers on this list, as well as other job listings which she had found through her own efforts, but to no avail. The jobs available required more fluency in English than she had, or were incompatible with her physical work restrictions. Her union could find her no suitable employment either.

Santos filed a claim for temporary total disability benefits and medical expense benefits from the date of her injury. After a hearing on April 4, 1985, the Hearing Examiner found Santos entitled to temporary total disability compensation and medical benefits from June 4, 1984 through October 29, 1984. The Examiner credited Dr. Dennis' conclusion that Santos' injury took an unusually long time to heal because of her excessive obesity and exaggeration of the lordotic curve. Based upon Dr. Dennis' medical opinions, the Examiner found that Santos was disabled beyond June 4, 1984, the date when Dr. Linehan had released her for unrestricted work. However, he found that Santos had not established temporary total disability beyond October 29, 1984, for the following reason:

The validity of Dr. Dennis's opinion of continuing disability is dependent on whether claimant was candid in relating her complaints to him. Dr. Gunther's testimony concerning the marked inconsistencies between claimant's behavior in his office and outside his office, which I find both reliable and credible, raises serious questions as to claimant's credibility at least as of her appointment with Dr. Gunther. Based on Dr. Gunther's testimony, I do not find claimant's continuing complaints credible and, since Dr. Dennis's opinion is based on claimant's complaints, I do not find his reports after October 29, 1984 (claimant's appointment with Dr. Gunther) reliable.

Santos v. Department of Employment Services, H & AS No. 84-428, Recommended Compensation Order at 7 (DOES, Aug. 9, 1985).

The Director of DOES rejected the recommendation of the Hearing Examiner, finding that it was not supported by substantial evidence. The Director reiterated Dr. Linehan's conclusion on June 4, 1984, that Santos exhibited no objective evidence of continued disability, and his statement in his June 19 medical report that there was nothing more he could do for her. The Director dismissed the medical opinions of Dr. Dennis, the treating physician, stating simply that "his medical reports did not present adequate rationale which could support the conclusion that Claimant was disabled beyond June 4, 1984." Santos v. Department of Employment Services, H & AS No. 84-428, Final Compensation Order at 5 (DOES, July 24, 1986). He, therefore, ordered that Santos was entitled to neither disability nor medical benefits beyond June 4, 1984. Santos petitioned for our review of the Final Compensation Order.

II

We are persuaded that the Director's ruling was not in accordance with law. See D.C. Code § 1-1510(a)(3)(A)(1981). The Director was restricted to substantial evidence review of the Hearing Examiner's Recommended Order. That is, he was bound by the Examiner's findings of fact if those findings were supported by substantial evidence in the record, considered as a whole. 7 D.C.M.R. § 230.9 (1986); Gunty v. Department of Employment Services, 524 A.2d 1192 (D.C. 1987); Dell v. Department of Employment Services, 499 A.2d 102 (D.C. 1985). The term "substantial evidence" has been defined by the courts as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938), quoted in Washington Post Co. v. District Unemployment Compensation Board, 377 A.2d 436, 439 (D.C. 1977). The Director was bound to accept factual findings supported by substantial evidence, "even though [he] may have reached a contrary result based on an independent review of the record." Dell, supra, 499 A.2d at 108.

The Hearing Examiner's factual finding that Santos' disability extended beyond June 4, 1984, was supported by substantial evidence in the record. Dr. Dennis' medical report of June 28, 1984, noted that his examination revealed tenderness to palpitation of the trapezius muscles bilaterally, and exaggeration of the lordotic curve. He noted, "[I]t is possible that she has a residual low grade mechanical injury to the back." He made the same findings at the September 28 follow-up visit. In his report of Santos' November 1, 1984, office visit, he diagnosed a ...