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

• Citation: 162 A.3d 793
• Decision Date: 22 June 2017
• Docket Number: No. 15–AA–912,15–AA–912
• Parties: Rachael B. STOREY, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent, and The Catholic University of America and Liberty Mutual Insurance Company, Intervenors.
• Court: D.C. Court of Appeals

162 A.3d 793

Rachael B. STOREY, Petitioner,

v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent,andThe Catholic University of America and Liberty Mutual Insurance Company, Intervenors.

No. 15–AA–912

District of Columbia Court of Appeals.

Submitted November 8, 2016

Decided June 22, 2017

Amended July 13, 2017^*

Sheila M. Geraghty and David Hryck were on the brief for petitioner.

Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Loren L. AliKhan, Deputy Solicitor General, were on the statement in lieu of brief for respondent.

Christopher R. Costabile was on the brief for intervenors.

Before Blackburne–Rigsby, Chief Judge,^* and Washington^† and Belson, Senior Judges.

Blackburne–Rigsby, Chief Judge:

Under the District of Columbia's Workers' Compensation Act, D.C. Code §§ 32–1501 to –1545 (2012 Repl.), a claimant alleging a work-related injury is entitled to a statutory presumption that his or her injury comes within the purview of the Act if the claimant is able to make "some ‘initial demonstration’ of (1) an injury; and (2) a work related event, activity, or requirement which has the potential of resulting in or contributing to the injury." Georgetown Univ. v. District of Columbia Dep't of Emp't Servs. , 830 A.2d 865, 870 (D.C. 2003) ("Georgetown Univ. I "); see also D.C. Code § 32–1521 (explaining the presumption). If the claimant is able to satisfy this "threshold requirement," then the burden is on the employer to convince the fact finder through "substantial evidence" that is "specific and comprehensive enough to sever" the causal connection between the alleged injury and the employment. Georgetown Univ. I , supra , 830 A.2d at 870.

This appeal asks us to consider whether an Administrative Law Judge ("ALJ") is authorized to make credibility determinations and weigh a claimant's evidence in determining whether the claimant has met his or her "threshold requirement," to be entitled to the statutory presumption of compensability. For the reasons that follow, we hold that an ALJ may not assess the credibility of a claimant's evidence at this initial stage. Instead, the claimant is entitled to the statutory presumption that the injury arose during the course of employment and therefore entitled to workers' compensation benefits, so long as he or she presents "some evidence" to establish a prima facie case of a work-related injury. Wash. Post v. District of Columbia Dep't of Emp't Servs. , 852 A.2d 909, 911 (D.C. 2004). The burden is then on the employer to rebut the presumption that an employee's injury was, in fact, not related to his or her employment. Id. The employer can rebut the presumption by proffering substantial evidence of non-causation, i.e., evidence that is "specific and comprehensive enough" that a "reasonable mind might accept it as adequate to contradict the presumed connection between the event at work and the employee's subsequent disability." Id. (footnote, citation, internal quotation marks and brackets omitted). This, again, is not a matter as to which the ALJ is to make credibility determinations. Only if the employer is able to rebut the presumption and the burden returns to the claimant is the ALJ entitled to make credibility determinations.

In this case, petitioner Rachael Storey filed a claim for workers' compensation benefits on the basis that she suffered from a panoply of illnesses that rendered her unable to work due to her exposure to mold and chemicals while employed at intervenor The Catholic University of America ("Catholic University" or "employer").¹ Ms. Storey submitted medical records, evidence of her work environment, opinions from numerous physicians, and her own testimony at the administrative hearing. In a written order, ALJ Linda F. Jory denied Ms. Storey's claim for benefits. The ALJ denied Ms. Storey's claim largely because she found that Ms. Storey's testimony was not credible. The ALJ determined that Ms. Storey's testimony exhibited "selective memory" on the stand, and that she intentionally "fabricat[ed] her story in order to further her claim." The ALJ also discredited the physician opinions that Ms. Storey had submitted into evidence because, in the ALJ's view, the diagnoses were based on Ms. Storey's unreliable assertions as to her own health and work environment. Consequently, the ALJ concluded that Ms. Storey failed to produce "credible" evidence of an injury and of a work-related event with the potential of causing injury sufficient to trigger the statutory presumption that her injury was compensable under the Act. Having concluded that Ms. Storey was not entitled to the statutory presumption, the ALJ made no findings of fact and conclusions of law on whether the employer produced enough evidence to rebut Ms. Storey's claim. In a two-to-one decision, a majority of the Compensation Review Board ("CRB" or "Board") affirmed the ALJ's decision. The CRB concluded that the ALJ did not err when she refused to accord Ms. Storey the statutory presumption based on the ALJ's decision that Ms. Storey's testimony was not credible, and that no remand was required even if the ALJ did err because the evidence demonstrated that "only but one outcome would occur[.]"

We disagree with the CRB's decision. The ALJ erred by assessing the credibility of Ms. Storey's testimony at the initial stage of determining whether she was entitled to the statutory presumption that her injury fell within the purview of the Act. Moreover, a remand is required because, even if the ALJ again discredits Ms. Storey's testimony after affording her the statutory presumption, the ALJ did not adequately consider other evidence in the record, separate and apart from Ms. Storey's testimony, supporting Ms. Storey's claim that she had suffered an injury and that her workplace environment had the potential of causing her injury. Accordingly, we remand to the CRB with instructions that it remand this case back to the ALJ to reconsider Ms. Storey's claim after first affording her the statutory presumption of compensability. It is not clear to us from this record that "only but one outcome would occur," even excluding Ms. Storey's testimony.

I. Factual Background

A. Ms. Storey's Employment with Catholic University

Ms. Storey was employed by Catholic University, first as a media lab director and later as an adjunct professor of Media Studies, from November 2005 to August 2010. During her time of employment, Ms. Storey principally worked in the basement of Catholic University's O'Boyle Hall. Ms. Storey testified that she believed her work environment inside of O'Boyle Hall caused her alleged injuries. According to Ms. Storey, she started to develop "creeping" medical problems almost immediately after she began work at O'Boyle Hall. It started out with relatively minor symptoms like itchy eyes and rashes on her hands and face, but progressively got worse. Ms. Storey testified that, as she continued to work in O'Boyle Hall, she began to suffer from intense chronic fatigue, daily migraines, cognition problems (such as short-term memory loss

), abdominal problems, chronic joint pain, weakness in the left side of her body, seizure-like symptoms, and other illnesses. As a result, Ms. Storey took a medical leave of absence from May 2008 to January 2009, and again from August 2009 to August 2010, when her contract expired and was not renewed. Ms. Storey also testified at the hearing that she continued to suffer from these medical problems that rendered her unable to work.

Ms. Storey believed that her medical problems were caused by O'Boyle Hall's long-standing mold problem, and that her protracted exposure to mold was the source of her escalating medical problems.² Ms. Storey also points to two specific incidents while working at O'Boyle Hall, which she claims exacerbated her already fragile condition. First, the building suffered from a flood in January 2008. This fact is undisputed by the employer. She claimed that, as a result of the flood, the "air was thick with ... a combination of charred glass and fumes" for weeks and there was visible mold on the floors and walls. Second, Ms. Storey claimed that in March 2009 she had seizure-like episodes after discovering a dark room full of open containers of chemicals used in film processing.

B. Medical and Environmental Evidence

Other than Ms. Storey's own testimony, there was conflicting evidence, some that favored Ms. Storey's claim that she suffered from a work-related injury as a result of her long-term exposure to mold and chemicals, and other evidence that favored Catholic University's defense that Ms. Storey had not suffered from an injury. Evidence in favor of Catholic University's position included many of Ms. Storey's own medical records of testing conducted on her beginning in 2006 and continuing throughout her employment with Catholic University, such as CAT scans

, X–rays, and blood work that seemed to show that Ms. Storey was overall in good health. Catholic University also proffered two favorable expert opinions, which claimed that Ms. Storey did not suffer any injury resulting from working inside of O'Boyle Hall.³ Lastly, Catholic University produced an "Indoor Air Quality Survey" of O'Boyle Hall that was conducted by a third-party, Applied Environmental, Inc., following the flooding incident in January 2008. The report contained both the data set and Applied Environmental, Inc.'s professional assessment of the data. Applied Environmental, Inc., in its professional assessment, concluded that "[d]irect read measurements for CO, CO₂, and respirable particulate were all within acceptable limits[,]" and that "[a]irborne fungal spore concentrations were low, and consistent with the outdoor concentrations."

Other evidence, however, supported Ms. Storey's claim that she had suffered a work-related injury as a result of her exposure to contaminants in O'Boyle Hall. For example, a medical report from George Washington...