Alston v. D.C. Dep't of Emp't Serv.

314 A.3d 58

Connie ALSTON, Petitioner,

v.DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent,andWashington Metropolitan Area Transit Authority, Intervenor.

Nos. 22-AA-0957 & 23-AA-0001

District of Columbia Court of Appeals.

Submitted October 27, 2023

Decided May 2, 2024

On Petitions for Review of a Decision and Order of the District of Columbia Department of Employment Services Compensation Review Board (2022-CRB-000047)

David M. Snyder was on the brief for petitioner.

Brian L. Schwalb, Attorney General for the District of Columbia, with whom Caroline S. Van Zile, Solicitor General, Ashwin P. Phatak, Principal Deputy Solicitor General, and Thais-Lyn Trayer, Deputy Solicitor General, filed a statement in lieu of a brief, for respondent.

Samuel B. Scott, College Park, MD, filed a brief for intervenor.

Before McLeese, Deahl, and Howard, Associate Judges.

HOWARD, Associate Judge:

Petitioner Connie Alston, a train operator for the Washington Metropolitan Area Transportation Authority ("WMATA"), injured her right arm and shoulder at work in March 2018. She sought benefits for a permanent partial disability. In her Compensation Order ("CO"), the Administrative Law Judge ("ALJ") rejected a finding by Ms. Alston’s treating physician of a 35% impairment and adopted an award recommended by WMATA’s independent medical examiner of a 5% impairment. The Compensation Review Board ("CRB") affirmed the CO, and Ms. Alston petitioned for review.

We conclude that the CRB acted outside the scope of its discretion when it affirmed the ALJ’s conclusion that the treating physician’s ratings were "inconsistent with … Ms. Alston’s testimony." But substantial evidence supported the CRB’s conclusions about the history of Ms. Alston’s injuries and Ms. Alston’s current role with WMATA. We reverse the CRB’s decision in part and affirm in part, and remand for further proceedings.

I. Background

In March 2018, Ms. Alston injured her right arm and shoulder while at work. She underwent treatment. Ms. Alston and WMATA then disputed Ms. Alston’s entitlement to permanent partial disability benefits, and an ALJ concluded that Ms. Alston was entitled to an award of 5% impairment. Ms. Alston appealed the CO to the CRB, which affirmed the CO.

A. Ms. Alston’s Injury and Treatment

On March 29, 2018, Ms. Alston was inspecting a WMATA train. She climbed onto the back of the train to unlock the door and her foot slipped off a platform. Ms. Alston used her right hand to attempt to grab the train handle and door. As a result, she suffered cervical injuries to her spine and neck. This made it difficult for Ms. Alston to return to work since her duties as a train operator involve "using her hand to move a control stick back and forth to operate the train." Ms. Alston underwent treatment for her injuries from April 2018 to June 2021, seeing orthopedist Dr. Joel Fechter and neurosurgeon Dr. Matthew Ammerman.¹

After nearly three years of treatment, Dr. Fechter opined on June 9, 2021, that Ms. Alston had reached maximum medical improvement ("MMI"). Using figures 16-40, 16-43, and 16-46 of the Fifth Edition of the American Medical Association Guides to the Evaluation of Permanent Impairment ("AMA Guides"), Dr. Fechter opined that Ms. Alston was entitled to:

[N]ine percent (9%) impairment of the right upper extremity, an additional thirteen percent (13%) impairment for pain and weakness, and taking into account the additional subjective factors of loss of endurance and loss of function, an additional thirteen percent (13%) impairment rating for a total impairment rating of thirty-five percent (35%) to the right upper extremity.

About three months later, on September 29, 2021, orthopedist Dr. David Johnson examined Ms. Alston upon WMATA’s request for an Independent Medical Evalua- tion. At that point, Dr. Johnson had evaluated Ms. Alston twice: once in May 2018 and again in January 2019. Like Dr. Fechter, Dr. Johnson concluded that Ms. Alston had reached MMI. Dr. Johnson diagnosed Ms. Alston, in connection with her 2018 injury, with symptomatic exacerbation of multilevel degenerative disk disease of the cervical spine with spinal stenosis, impingement syndrome, and tendinosis of the subscapularis in the right shoulder and biceps tendon. These injuries were "superimposed" on Ms. Alston’s "preexisting injury to the [acromioclavicular ("AC")] joint," for which Ms. Alston had undergone surgery in 2008 and which was "currently objectively and symptomatically resolved."

Using the Sixth Edition of the AMA Guides, Dr. Johnson then opined that

Ms. Alston warranted a zero percent (0%) impairment rating for her right upper extremity and no significant objective abnormal findings at MMI … Ms. Alston would qualify for a ten percent (10%) upper extremity impairment rating according to Table 15-5 [of the AMA Guides], due to a preexisting procedure that was performed in 2008 but that procedure had no relationship to the present injury of March 29, 2018. Ms. Alston and WMATA disputed Ms. Alston’s entitlement to permanent partial disability benefits based on the nature and extent of her light arm disability.

B. The ALJ Hearing and Compensation Order

To resolve the dispute, a hearing was held before an ALJ. The ALJ admitted into evidence Dr. Fechter’s reports from April 18, 2018, through April 24, 2020, and impairment evaluation from June 9, 2021; Dr. Ammerman’s medical reports from August 13, 2018, through May 11, 2020, and operative report from November 12, 2019; a transcript from Dr. Fechter’s deposition on May 19, 2022; Dr. Johnson’s independent medical examinations from May 31, 2018, January 2, 2019, and September 29, 2021; Dr. Fechter’s orthopedic discharge report from June 12, 2020; Ms. Alston’s return-to-work wages; and selected pages of the Fifth and Sixth Editions of the AMA Guides. Ms. Alston was the only witness to testify.

Ms. Alston testified about how she had slipped off a platform leading to the door of the train she had been inspecting; how she had received treatment from Dr. Fechter and undergone surgery performed by Dr. Ammerman; and how, despite the doctors releasing her to "light duty," there was "no light duty for train operators." Due to both her injury and her seniority, she was able to "come back to work" as a train operator in the yard, where she couples and uncouples trains for about ten minutes a day. This role, according to Ms. Alston, does not require her to "reinjur[e] that same shoulder" where she is still experiencing pain. She explained that if she had the same full-time role as before, she "would not have been able to come back to work." Ms. Alston described how she continued to experience pain in her right shoulder and arm area, where she had a prior surgery in 2008.

The ALJ found Ms. Alston’s testimony credible and that Dr. Fechter was entitled to a treating physician preference. But the ALJ rejected Dr. Fechter’s rating as "not persuasive" since his "impairment rating [wa]s inconsistent with the medical records and Claimant’s testimony." The ALJ reasoned that Dr. Fechter’s "initial impairment rating did not acknowledge Claimant’s prior injury or that the work injury cause[d] an exacerbation of the prior injury." And Dr. Fechter did "not sufficiently explain the basis of his rating," used "vague and conclusory language in providing his rating," and did not "specify any graphs or tables in supporting his impairment rating."

In contrast, the ALJ found that Dr. Johnson’s examination showed that Ms. Alston "had no pain with movement of the right shoulder and no pain with movement of the neck and there was no sensory deficit or motor weakness to either upper extremity." As the ALJ summarized, "Dr. Johnson acknowledged Claimant’s prior injuries and opined that Claimant’s March 29, 2018 work injury symptomatically exacerbated Claimant’s multilevel degenerative disc disease." To the ALJ, Dr. Johnson distinguished between the 2018 injury’s impact on Ms. Alston’s cervical spine versus her right shoulder, and between the residual impact from the 2008 surgery and the exacerbation caused by the 2018 injury. The ALJ adopted what she characterized as Dr. Johnson’s "well-reasoned" opinion. The ALJ concluded that Ms. Alston had failed to prove by a preponderance of the evidence that she was entitled to an award of 35% permanent partial disability benefits, and ordered WMATA to make payments based on a 5% award.

C. The Compensation Review Board Decision

On appeal, the CRB affirmed the ALJ’s order. The ALJ had "use[d] her discretion as the fact finder" to find Dr. Fechter’s testimony "unclear" and his pain ratings unsupported by the record. Dr. Fechter’s testimony, the CRB observed, was "largely based on subjective complaints from Ms. Alston and inconsistent with both the medical records and Ms. Alston’s testimony offered at the formal hearing." The CRB also noted that Ms. Alston "worked in a full duty capacity at a new job, where she performed her duties without modifications" for pain, weakness, loss of endurance, and loss of function that she suffered as a result of the 2018 injury. The CRB found that "substantial evidence supports the finding that the ratings offered by Dr. Fechter were not based upon a full assessment of Ms. Alston’s relevant medical history and, therefore, were unpersuasive to the ALJ." Ms. Alston argued to the CRB that the ALJ incorrectly determined that deposition was an "inappropriate place for Dr. Fechter to elaborate on an uncontested issue," but the CRB determined that the ALJ made no error when she decided to weigh conflicting testimony in the manner that she did.

This petition for review followed.²

II. Standard of Review

[1–3] "We review a decision of the CRB to determine whether the decision was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ " Howard Univ. Hosp. v. D.C. Dep’t of Emp. Servs., 200 A.3d 1244, 1248 (D.C. 2019) (quoting Reyes v. D.C. Dep’t of Emp. Servs., 48 A.3d 159,...