Wmata v. Does

• Decision Date: 14 June 2007
• Docket Number: No. 06-AA-27.,06-AA-27.
• Citation: 926 A.2d 140
• Parties: WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY (WMATA), Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent. Juni Browne, Intervenor.
• Court: D.C. Court of Appeals

926 A.2d 140

WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY (WMATA), Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent.

Juni Browne, Intervenor.

No. 06-AA-27.

District of Columbia Court of Appeals.

Argued January 25, 2007.

Decided June 14, 2007.

Sarah O. Rollman, Assistant General Counsel, with whom Carol B. O'Keefe, General Counsel, and Mark F. Sullivan, Deputy General Counsel were on the brief, for petitioner.

Robert J. Spagnoletti, Attorney General for the District of Columbia at the time the brief was filed, Todd S. Kim, Solicitor General for the District of Columbia, and Pastell Vann, Senior Assistant Attorney General, filed a statement in lieu of brief, for respondent.

Heather C. Leslie, for intervenor.

Before FARRELL and RUIZ, Associate Judges, and WINFIELD, Senior Judge, Superior Court of the District of Columbia.^*

WINFIELD, Senior Judge:

The intervenor/claimant, Juni Browne, filed a worker's compensation claim, pursuant to D.C.Code § 32-1501 et seq., for temporary total disability after a bus he was driving was struck in the rear by a car. An evidentiary hearing was held before Administrative Law Judge (ALJ), Henry W. McCoy, of the District of Columbia Department of Employment Services (DCDOES). The ALJ credited the claimant's testimony that as a result of the accident on the job, he injured his back, wrist, and right knee and that as a result of these injuries, he suffered continuous knee pain and intermittent back pain through the date of the hearing. The ALJ also credited the opinions of the treating physicians who reported that Mr. Browne was not fit for duty as a bus driver from the time they first examined him until he returned to work against their medical advice. The ALJ further took administrative notice that in order to drive a bus, a driver must use his arms to steer and reach, he must also stand and walk, turn his torso repetitively, and use his right leg to engage the accelerator and brake pedals. Despite these findings of fact, however, the ALJ concluded that although there was substantial evidence that Mr. Browne had been injured in a work-related incident, resulting in a disabling condition, there was not substantial evidence of the nature or extent of his disability to justify his claims. The ALJ concluded that the evidence was insufficient to show how Mr. Browne's injuries restricted his capacity to drive a bus. Accordingly, the ALJ denied the claims.

Mr. Browne appealed to the Compensation Review Board (CRB) of the DCDOES Office of Hearings and Adjudication (OHA). On December 16, 2005, a Compensation Review Panel of the CRB reversed the ruling of the ALJ in part, concluding that there was substantial evidence to support the ALJ's findings of fact, but that his ultimate conclusions did not flow rationally from those findings. Instead of remanding the matter to the ALJ for a conclusion consistent with his factual findings, however, the CRB ordered that Mr. Browne be compensated in full for his claims.

WMATA, Browne's employer, files the instant petition for review contending that the CRB failed to properly review the conclusions of the ALJ, but instead substituted its judgment of the facts. We hold that the CRB properly reviewed the findings of the ALJ, but because the CRB is not authorized to issue a compensation order, we reverse the decision of the CRB and remand this case for further proceedings consistent with this opinion.

FACTUAL SUMMARY

The record shows that Mr. Juni Browne was a bus driver for WMATA for five years before he was injured on August 25, 2004. At the moment when a car ran into the back of his bus, Mr. Browne was out of his seat, attempting to help a passenger who was on the stairs of the bus. As a result of the impact, Mr. Browne fell forward inside the bus, injuring his back, right knee and right wrist.¹ Within days after this accident, Mr. Browne went to his HMO-provided doctor at Kaiser Permanente.² The doctor did not order X-rays to be taken. He merely prescribed pain medications. Because Mr. Browne did not "normally go to doctors" and because he had little "faith in them," he did not return to his Kaiser doctor despite an increase in his pain symptoms over time. Instead, he treated his injuries himself with heat wraps and the prescribed medications.

A little more than one month later, on October 4, 2004, Mr. Browne met with a doctor at Phillips & Green, M.D., LP, an orthopedic surgery practice. Mr. Browne testified that he went to these doctors because he had treated successfully with them after an earlier bus accident and injury.³ Mr. Browne was treated by Richard S. Meyer, M.D. and Fredric L. Salter, M.D. Dr. Meyer prescribed an MRI of the right knee and recommended physical therapy (PT) to alleviate continuing pain in Browne's back and knee. Mr. Browne underwent PT treatments approximately twice per week⁴ until February 2005. At each periodic medical evaluation, the doctors at Phillips and Green declared that Mr. Browne was unfit to return to work as a bus operator. They did not otherwise restrict or limit his physical activities.

On November 2, 2004, at the employer's behest, Mr. Browne was evaluated by Dr. Robert Gordon, an independent medical examiner (IME). Dr. Gordon opined that Browne suffered from no more than contusions and a strain of the right knee and was fit to work as a bus driver. Eventually, Mr. Browne successfully returned to work in March 2005 without obtaining a medical clearance or release to return to work from his treating doctors.

The periods when Mr. Browne did not work and was not compensated were from August 26, 2004 until October 3, 2004 and from November 12, 2004 until March 17, 2005. Between these two periods, although Mr. Browne was not working, his employer, WMATA, voluntarily paid him.

PROCEDURAL HISTORY

Mr. Browne filed a worker's compensation claim for authorization for an MRI of his right knee and for temporary total disability for the periods August 26, 2004 through October 3, 2004 and November 12, 2004 through March 17, 2005. Mr. Browne was the only witness who testified before Administrative Law Judge Henry W. McCoy. The exhibits of the parties included the medical and billing records from Phillips and Greene, photographs of the bus and the car that struck the bus, and Dr. Gordon's report. During his testimony, Mr. Browne stated that at the moment of the accident, he felt pain in his back, wrist and knee that increased during the next day. He stated that despite receiving a muscle relaxant (Flexeril) and an anti-inflammatory (Motrin), the pain got worse. Browne testified that he did not return to work because he was "injured." He stated that even while receiving physical therapy, he did not return to work because he was "not able to work." He testified that as of the date of the hearing, his knee and back were improving with therapy but that infrequently, he continued to experience sharp pain in his knee.

The ALJ found that Mr. Browne was credible when he described the accident, his injuries and the resultant pain that he experienced. The ALJ further found that Mr. Browne's injuries arose during the course of his employment with WMATA and that Mr. Browne's persistent right knee pain was causally related to the work accident. The ALJ concluded that the claimant therefore was entitled to a presumption of compensability.⁵ The ALJ took "judicial" notice⁶ that to operate a bus, an individual is physically required to use his arms to turn the wheel and to reach, to do some standing and walking, to repetitively turn his head and upper torso, and to use his right leg to depress the accelerator and brake.

Notwithstanding having made these findings, the ALJ concluded that the claimant failed to provide "substantial credible evidence" on the issue of his ability to work during either claim. Specifically, as to the first claim period, the ALJ found that Browne's testimony alone was "devoid of any mention of how and to what extent he was incapacitated from performing his normal duties as a bus operator." Further, the ALJ explained that Mr. Browne provided neither testimony nor documents to show how the injuries he suffered "restricted his capacity to perform any of his regular activities either at home or on the job." (emphasis added).⁷ Thus, the ALJ concluded that Mr. Browne did not meet his burden of proof that he was entitled to disability benefits.⁸

As to the second claim period, the ALJ found that Browne's testimony "that . . . he continued to experience pain in his right knee was substantiated by the treating physician, Dr. Meyer, over the course of his treatment." According to the ALJ, Dr. Meyer diagnosed Mr. Browne initially with "internal derangement of the right knee, lumbosacral spine strain, and contusion/sprain of the right wrist." The ALJ further found that "Dr. Meyer continued to find tenderness and spasm along the mid to lower lumbar and paralumbar area" and tenderness about the "medial joint line of the right knee." According to the ALJ, Mr. Browne was "symptomatic in his right knee" even as of the last evaluation by Dr. Meyer on March 16, 2005.

The ALJ noted the law in the District of Columbia that entitles a treating physician's opinion to greater weight than a conflicting opinion of a non-treating physician unless there are persuasive reasons to find otherwise. Consistent with this law, the ALJ accorded "the greater weight to the claimant's [medical] evidence in support of his claim over that of the employer's." The ALJ credited the treating physician, Dr. Meyer, who deemed Browne to be "not fit for working duty as a bus operator" during the entire course of his treatment. The ALJ noted that the treating physician's medical opinions were based upon "objective diagnostic testing correlated with examinations." The ALJ noted that although Dr. Meyer did not release Browne to return to work in March 2005, Dr. Meyer had apparently expressed "understanding [of...